Smith v. Scrap Disposal Corp.

Opinion

WIENER, J.

Richard Smith (Smith) sued Scrap Disposal Corporation (Scrap) for negligence. Defendants successfully moved for summary

[527]

judgment on the grounds that Civil Code section 846 barred recovery.

1

For reasons which we will discuss, we have concluded plaintiff did not enter defendant’s property to fish and, whether he entered for the purpose of vehicular riding presents a triable issue of fact. We reverse the judgment.

Scrap, under a tideland use and occupancy permit, granted by the San Diego Unified Port District (District), was entitled to store and stock pile metals on a portion of the National City Marine Terminal. The area specifically designated in the permit was a 4-acre rectangular parcel, approximately 174,291 square feet, located 70 feet from the northern border and 80 feet from the western border of the terminal. Both terminal boundaries were adjacent to the ocean at San Diego Bay. The strips of land adjacent to the water and contiguous to the property described in the permit was part of the common area under the direct supervision of the District. Although not expressly described in the permit, Scrap used the adjacent property for ingress and egress, in addition to using the roads, wharfs, berths, aprons and railroad tracks for the loading and unloading of ships and the movement of scrap metal both into and out of the designated storage area.

Smith and two friends entered the National City Marine Terminal Sunday morning, February 1, 1976, to go fishing. They entered the terminal through a gate, drove westerly along the northern boundary of the terminal adjacent to the land described in the permit, until they reached the water’s edge, turned left, continued for approximately 100 feet adjacent to Scrap’s property, and stopped there to fish. When they finished fishing several hours later, plaintiff drove his car containing his two companions along the same route to return home. After plaintiff had driven approximately 50 to 100 feet, one of his friends jumped out of the slowly moving vehicle. He said he wanted to go for a ride on a bulldozer which was parked on Scrap’s portion of the terminal. Plaintiff testified in his deposition he attempted to stop his friend from using the bulldozer because he had to get home. While he was standing on the bulldozer, his