Judge: Mark H. Epstein, Case: 24SMCV03228, Date: 2024-10-02 Tentative Ruling

Case Number: 24SMCV03228    Hearing Date: October 2, 2024    Dept: I

This is a premises liability case.  Plaintiff alleges that defendant “maliciously” failed to warn of a dangerous condition—that the floor near the shower was wet.  Defendant asserts that Civil Code section 846 limits liability as to land owners from persons who entered the land for a recreational purpose unless the land owner’s conduct was willful and it was not willful here.  That is a carve-out from the general rule that a land owner is responsible for injuries occurring on the land as to an invitee upon a showing of negligence.  Defendant also argues that plaintiff was not engaging in recreational activity at the time of the incident. 

Frankly, the court is having a hard time understanding defendants’ argument under Civil Code section 846.  It would seem that defendant would argue that the statute does apply because it provides for a defense from liability absent willful misconduct, which is not protected whether or not the statute applies.  In any case, the more fundamental problem  in the court’s view is that a fair reading of the statute is that it was not meant to apply to membership health clubs (not open to the public), like LA Fitness, in the first place.  It is designed to encourage land owners to allow the public onto the land for things like fishing, hiking, or other recreational activities.  Those owning open spaces would not make them available to the public if every time someone got hurt the owner was sued.  And negligence for open spaces might well be relatively easy to establish—at least it would get to trial a lot.  By eliminating liability unless the land owner acted willfully (like setting a trap), an owner need not worry about lawsuits when someone falls on the trail, tumbles down an embankment, or slips on a wet rock.  The court is not saying that the statute is necessarily limited to open spaces; perhaps a community room open to the public with a basketball hoop, for example, might come within the statute.  But LA Fitness is not an open space into which any member of the public can come at any time.  It is a membership club and one must pay a regular fee in order to enter.  (It is true that there could be something like a free trial, but that is not an invitation to the public; it is a limited offer designed to get a person to join.)  In any event, although the court gives defendant high marks for creativity, absent some kind of case authority extending the statute the court does not believe that it was meant to, or does, apply to a health club.

Defendant also contends that there is no basis for the tort of willful failure to warn because there is no evidence that the conduct was willful.  Here, the court disagrees, although the matter is closer.  There is no “willfulness” in the allegations to the extent that willfulness means a desire to injure plaintiff.  Rather, it appears that the floor was slippery and that a person within defendant’s employ knew it because the slipperiness was the result of mopping and a lack of signage and therefore was (arguably, and according to plaintiff) acting with deliberate indifference to the safety of others.  The court has its doubts as to whether that is anything beyond ordinary negligence, but facts need to be known.  For example, had the issue been reported to defendant but defendant failed to do anything, how long had the floor been in this condition, had there been any attempt to dry the floor or was the floor sopping wet, had anyone else slipped and been injured?  Those are questions that could (at least in theory) lead to a finding of willfulness.  Defendant will contend that this is why more information is needed, although the demurrer seeks an order that leave to amend be denied.  But these facts are within defendant’s knowledge more than plaintiff’s knowledge.  It is not appropriate to require plaintiff to plead those evidentiary facts without discovery.  This is better tested on summary judgment.

In any event, because the court does not believe that the statute applies to this case, the demurrer is OVERRULED as to the first cause of action.  Because the allegations are enough for the pleading stage, although they may be vulnerable to a summary judgment motion, the demurrer is OVERRULED as to the second cause of action as well.  The motion to strike is DENIED for the same reason, although, as set forth above, the court has its strong doubts that either the second cause of action or the punitive damages allegations will survive summary adjudication.  Defendant has the time allowed by law to answer.