GEORGE, J. I dissent.
Plaintiff appeals from a summary judgment entered in favor of defendant. Plaintiff, a minor,1 suffered a broken wrist while riding his bicycle on defendant’s property. The complaint alleged causes of action for premises liability and general negligence. Summary judgment was predicated on Civil Code section 846 (hereafter section 846), which substantially limits the duty of care owed by a landowner to persons who permissively use property free of charge for designated recreational purposes. (Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 704 [190 Cal.Rptr. 494, 660 P.2d 1168].) Among those purposes is recreational bicycle riding. (§ 846.)2
[1072]Plaintiff contends that defendant is not entitled to the protection afforded by section 846 because (1) defendant’s land fell within a judicially recognized exception to the statute applicable to property unsuitable for recreational purposes; and (2) defendant’s conduct fell within the statutory exception for “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.” For the reasons discussed below, I find plaintiff’s contentions to be without merit and would affirm the judgment of the court below.
Facts
The facts before the court were basically undisputed. The location of the March 1985 accident was unimproved real property, which required no maintenance, described as the South Pointe project in Walnut, California. At that time the site included an undeveloped area of approximately 10 acres where preliminary grading had taken place between 1980 and 1982 in anticipation of residential construction. No construction had ever taken place on this site, and during the three-year period between the preliminary grading and plaintiff’s accident, defendant had done nothing to alter the condition of the land at the site of the accident. Areas of the development project where “actual construction was going on” were fenced, but “not where only grading of lots had been completed.” Some improved streets had been built in the area. The site supervisor “visually observed the property each day he was on the site.”
Initially, at the suggestion of his friends, plaintiff had gone on the property before it had been graded, when it had been used for grazing cattle. After the property was graded plaintiff rode his bicycle on it frequently, probably more than 20 times, despite being told by his parents to “[s]tay out of the hills because you might get hurt.” No one else had ever told him to stay off the property, and warning signs were not posted. Plaintiff had never been invited onto the property by the owners, nor had he paid anyone to enter the property.
Apparently trails had been cut into the soil by bicycle riders using the site as a jump, but defendant had not constructed or otherwise created any bicycle trails on the property.
On the date of the accident, en route to visit a friend, plaintiff rode his bicycle through defendant’s property “[bjecause it’s a shorter way to get there.” While some of plaintiff’s friends used a plastic object to slide down a [1073]wet grassy slope, plaintiff and another friend rode across a field on their bicycles, went down a 30-foot hill in order to gain momentum, “lifted off” a “little hill,” and deliberately jumped over a 6-foot drop formed by the grading of a lot. Plaintiff had gone over this “bike jump” on prior occasions because it was “fun.” On the occasion in question, plaintiff fell but his friend did not. Plaintiff broke his wrist as a result of the accident.
Procedural Background and Standard of Review
In his complaint plaintiff alleged that defendant was negligent in failing to fence “the area of construction off from the general public,” to post signs warning of the dangerous condition of the area, and to notify nearby residents of the danger the condition posed to children who were known to ride bicycles in the area. Defendant answered the complaint raising, among others, the affirmative defense that liability was barred by section 846.
The court below granted defendant’s motion for summary judgment on the basis of the limited immunity conferred by section 846 as construed in Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d at pages 707-708, distinguishing the case of Paige v. North Oaks Partners (1982) 134 Cal.App.3d 860 [184 Cal.Rptr. 867], and concluding that plaintiff’s alternative argument, the statutory exception for “willful or malicious failure to . . . warn,” was “not even close.”
Code of Civil Procedure section 437c, subdivision (c), provides that a “motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Italics added.) “Thus, summary judgment was mandatory if the statutory requirements were met. The procedure is designed to test whether any material triable issues of fact exist, but not to resolve disputed factual issues. (See Leo F. Piazza Paving Co. v. Foundation Constructors, Inc. (1981) 128 Cal.App.3d 583, 589 [177 Cal.Rptr. 268].)
“And where defendants are the moving parties, as here, they must either negate a necessary element of the plaintiff’s case or state a complete defense. (Frazier; Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell (1977) 70 Cal.App.3d 331, 338 [138 Cal.Rptr. 670].) To avoid a summary judgment, plaintiff must show a material triable issue of fact with respect to the offered defense or the negated essential element. (Ibid.) ‘[N]o amount of factual conflicts upon other aspects of the case will affect the result and the motion for summary judgment should be granted. [Citation.]’ (Ibid.)
[1074]“An order of summary judgment will not be reversed in the absence of a clear showing of abuse of discretion. (Leo F. Piazza Paving Co. v. Foundation Constructors, Inc., supra, 128 Cal.App.3d at p. 589; Brewer v. Home Owners Auto Finance Co. (1970) 10 Cal.App.3d 337, 341 [89 Cal.Rptr. 231].)” (Fireman’s Fund Ins. Co. v. Fibreboard Corp. (1986) 182 Cal.App.3d 462, 465-466 [227 Cal.Rptr. 203].)
Discussion
I
Whether the Property on Which Plaintiff’s Accident Occurred Was Unsuitable for Recreational Purposes and Thus Unprotected By the Limited Immunity Conferred By Civil Code Section 846
The terms of section 846, construed literally, preclude liability on the part of defendant for ordinary negligence. Plaintiff’s use of defendant’s property was for a specified recreational use, recreational bicycle riding; plaintiff was not expressly invited onto the property by defendant, and plaintiff did not pay consideration to anyone for permission to enter and use the property. The principal question before us is whether defendant’s land fell within a judicially recognized exception to the statute applicable to property unsuitable for recreational purposes.
Alteration of the landscape, in this case by the grading of lots, does not necessarily remove land from the protection afforded by the statute. The Supreme Court has expressly noted that “section 846 is by no means limited to land in its natural condition—it specifically mentions ‘structures’—it obviously encompasses improved streets.” (Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d at pp. 706-707, italics added.) “\\T\\he statute makes no distinction between natural and artificial conditions. ” (Id., at p. 708, italics added.)
As recognized by the Supreme Court, “[t]he purpose of section 846 is to encourage property owners ‘to 'allow the general public to recreate free of charge on privately owned property.’ (Parish v. Lloyd (1978) 82 Cal.App.3d 785, 787 [147 Cal.Rptr. 431] italics added; see also Lostritto v. Southern Pac. Transportation Co. (1977) 73 Cal.App.3d 737, 747 [140 Cal.Rptr. 905].) This purpose is achieved by a basic declaration that owners owe ‘no duty of care to keep the premises safe’ for certain specific recreational purposes.” (Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d at pp. 707-708.) The statute “is an exception to the general rule that a private landowner owes a duty of reasonable care to any person coming [1075]upon the land. [Citations.] Under section 846, the landowner’s duty toward the nonpaying, uninvited recreational user is, in essence, no greater than that owed a trespasser under the common law as it was known prior to Rowland v. Christian [(1968) 69 Cal.2d 108, 119 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]]. [Citations.] The recreational trespasser on private land assumes the risk of injury, therefore, absent willful or malicious misconduct by the landowner. (See § 846.) The legislative purpose of that statute, by eliminating the threat to the landowner of gratuitous tort liability, is to encourage the landowner to keep the property accessible and open to the public for recreational use without charge. [Citations.]” (Charpentier v. Von Geldern (1987) 191 Cal.App.3d 101, 107-108 [236 Cal.Rptr. 233]. See also New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 688-689.) “In other words, the statutory goal is to constrain the growing tendency of private landowners to bar their land to the public for recreational uses because of the threat of gratuitous tort liability. [Citations.]” (Pacific Gas & Electric Co. v. Superior Court (1983) 145 Cal.App.3d 253, 256 [193 Cal.Rptr. 336]; Parish v. Lloyd (1978) 82 Cal.App.3d 785, 787-788 [147 Cal.Rptr. 431].)
The majority’s conclusion that defendant’s property was exempt from the provisions of section 846, as land unsuitable for recreational purposes, is based on its reading of two cases decided by this district Paige v. North Oaks Partners, supra, 134 Cal.App.3d 860, distinguished by the trial court herein, and Potts v. Halsted Financial Corp. (1983) 142 Cal.App.3d 727 [191 Cal.Rptr. 160],
Although Paige and Potts concluded the Legislature’s intent was not to apply the limited immunity conferred by section 846 to the particular types of construction projects involved in the two cases, the rationale of those decisions is totally inapplicable to the present case for the reasons set forth below.
The property involved in the Paige case was an area adjacent to a market located in an urban shopping center. A general contractor, “engaged in a construction project for repair and alteration of the premises,” had left “an open trench in the construction area.” Plaintiff minor and his friends were engaged in playing a game of tag on bicycles when plaintiff unsuccessfully attempted to jump over the trench on his bicycle, falling into the trench and suffering injury. (Paige v. North Oaks Partners, supra, 134 Cal.App.3d at pp. 861-862.) The Court of Appeal concluded it was “inconceivable that the Legislature intended [§ 846] to apply to a case such as this one. ... In attempting to provide access for the public to open spaces for recreational use, the Legislature could not have intended to encourage owners and building contractors to allow children to play on their temporary construe[1076]tion projects.” (Id., at p. 863.) This court was careful to circumscribe narrowly its ruling in Paige: “We have no occasion to go beyond the facts of this case: a child injured while jumping over an open trench in a temporary construction project near the loading dock of a market in an urban shopping center. We hold simply that under the circumstances of this case, this is not the type of property to which the statute was intended to apply.” (Id., at p. 865.)
In the Potts case a group of friends entered two buildings under construction on beachfront property adjacent to a public road for the purpose of “gainpng] a better view of the ocean and to discover whether [one of the persons] could rent a room once the buildings were finished. As construction workers [two of them] were also interested in inspecting the type of construction used on beachfront properties.” While walking across two loose boards which connected the roofs of the two buildings, plaintiff fell to the ground and injured himself. (Potts v. Halsted Financial Corp., supra, 142 Cal.App.3d at p. 729.) The Court of Appeal concluded: “Application of the statute here would fail to promote this intent of the Legislature. Landowners who have begun to erect private dwelling units have already withdrawn this portion of their land from public recreational access by making it unsuitable for such purposes. It is highly improbable that the Legislature intended to encourage landowners to allow the public access to places as unsuitable for recreation as the rafters or the roofs of their new homes or apartment units, or indeed that landowners would ever be likely to permit such a use, whether or not they had been granted immunity. A grant of immunity would merely encourage the negligent maintenance of construction sites, without, however, achieving the specific public benefit the Legislature envisioned.” (Id., at p. 730.)
Far more analogous to the situation before us is that presented to this division in Nazar v. Rodeffer (1986) 184 Cal.App.3d 546, 550 [229 Cal.Rptr. 209], where “Plaintiff had entered defendants’ property for the recreational purpose of riding motorcycles. The property was a vacant lot unimproved with the exception of a concrete drainage ditch. The accident occurred when plaintiff drove his motorcycle into the ditch which traversed the property and which was obscured by weeds and other vegetation.” (Italics added.)
In Nazar we concluded: “Plaintiff’s next contention that a triable issue of fact existed concerning the suitability of the land for recreational purposes is without merit. [Italics added.]
“Our state Supreme Court has noted that ‘[t]he purpose of section 846 is to encourage property owners “to allow the general public to recreate free [1077]of charge on privately owned property.” [Citation.]’ (Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707-708 [190 Cal.Rptr. 494, 660 P.2d 1168], cert. den., 464 U.S. 915 [78 L.Ed.2d 257, 104 S.Ct. 277] [italics in original].) The purpose of this section would be furthered by its application in this case. [Italics added.]
“The land on which plaintiff’s motorcycle accident occurred was privately owned by defendants. Plaintiff entered the property for the recreational purpose of riding motorcycles. Deposition testimony established that the property was used by motorcyclists ‘[f]or a long time, very, very long time.’ This was established by the existence of a motorcycle track or trail on the property.
“The mere existence of a man made structure on the land does not detract from the fact that defendants’ land serves a recreational purpose. Civil Code section 846 itself states that an owner of real property ‘owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, . . .’ ([Italics] added.) Our state Supreme Court has noted ‘that the statute makes no distinction between natural and artificial conditions.’ (Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d at p. 708.) Potts v. Halsted Financial Corp. (1983) 142 Cal.App.3d 727 and Paige v. North Oaks Partners (1982) 134 Cal.App.3d 860, which involved accidents at construction sites are distinguishable from the case at bench.
“Plaintiff maintains that the occurrence of prior accidents on the land could render it unsuitable for recreational purposes such that Civil Code section 846 would not apply. We disagree. Acceptance of this argument would defeat the obvious purpose of this statute.
“We conclude that no triable issue of material fact existed regarding the suitability of the land for recreational purposes.” (Nazar v. Rodeffer, supra, 184 Cal.App.3d at pp. 554-555.)
The majority concludes that the circumstance of plaintiff’s being en route to his friend’s home by “a shorter way” at the time of the accident “alone precluded the possibility of properly granting of a motion for summary judgment.” (Maj. opn., ante, p. 1065.) Relying on Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal.App.3d 1022, 10273 [157 Cal.Rptr. 612], [1078]the majority finds the foregoing circumstance attending plaintiff’s bike riding incompatible with recreational use of defendant’s property.
Gerkin involved a minor who fell off two planks bridging a dry creek bed as she walked her bicycle (at no time riding) across the defendant’s property en route to a grocery store with her mother’s permission for the purpose of purchasing an item and making a telephone call. In concluding that the plaintiff’s activity did not comprise “recreational ‘hiking,’ ” the Court of Appeal held: “We conclude that for an activity to fall within the term ‘hiking’ as it is used in section 846, it must be proved not merely that the user was ‘walking’ across the property, but that the activity constituted recreational ‘hiking’ within the commonly understood meaning of that word, i.e., to take a long walk for pleasure or exercise. (See Webster’s Seventh New Collegiate Dict. (1971) p. 393.) We agree with respondents that the test should not be based on the plaintiff’s state of mind. We believe, however, that such a determination must be made through a consideration of the totality of facts and circumstances, including the path taken, the length and purpose of the journey, the topography of the property in question, and the prior use of the land. While the plaintiff’s subjective intent will not be controlling, it is relevant to show purpose.” (95 Cal.App.3d at p. 1027.)
In the present case, although the ultimate destination in plaintiff’s excursion was the home of a friend, I submit that plaintiff’s activity on defendant’s property was incompatible with anything but a recreational use. As previously noted, on the date of the accident plaintiff and another friend rode across a field on their bicycles, went down a 30-foot hill to increase their speed, “lifted off” a “little hill,” and deliberately jumped over a 6-foot drop formed by the grading of a lot. Plaintiff’s flight was not unintended; he had ridden his bicycle on the property on at least 20 prior occasions and was aware of the “bike jump,” having previously ridden over it. Trails had been cut into the soil by bicycle riders using the site as a jump. I cannot accept the majority’s conclusion that, in contrast, on the particular “occasion of the accident,” plaintiff’s use of defendant’s property was “not for recreational purposes.” (Maj. opn., ante, p. 1065.)
At oral argument plaintiff suggested to us that the occurrence of his injury establishes by itself the unsuitability of the site for recreational purposes, a contention which we explicitly rejected in the above-quoted holding in Nazar. Anyone familiar with such sports as skiing and off-road cycling (which come within the uses protected under § 846) would note that even on terrain ideally suited for recreational pursuits, injury will occur from time to time due to the negligence of the recreational user, some defect or malfunction of the user’s equipment, or other fortuitous circumstances. [1079]Only a person with the dimmest of childhood memories could doubt that the experience of defying the law of gravity by becoming momentarily airborne astride a bicycle is a recreational pursuit, despite the attendant risk (or, perhaps, because of it).
In fact, the only active use of defendant’s property reflected in the record, once cattle grazing had ceased and the lots were graded three years prior to the accident, was recreational use, by plaintiff and his friends on at least twenty occasions. There is nothing in the record to support the majority’s conclusion that the property in question was “highly developed land” or that “recreational use by the public during such development would interfere with that developer’s purpose and use of its private property.” (Maj. opn., ante, pp. 1066, 1070.)
As previously observed, section 846 refers to “structures,” and the Supreme Court has taken note of the statute’s applicability to both “natural and artificial conditions” on the land. (Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d at pp. 706, 708.) Clearly, if this division could find that a “vacant lot unimproved with the exception of a concrete drainage ditch,” located in an urban area adjacent to the intersection of the 605 Freeway and Beverly Boulevard in Los Angeles County, “serves a recreational purpose” (Nazar v. Rodeffer, supra, 184 Cal.App.3d at pp. 550, 554), the grading of a portion of the 10-acre property involved in the present case should not be deemed to render it “unsuitable for recreation” (Potts v. Halsted Financial Corp., supra, 142 Cal.App.3d at p. 730) under the foregoing case authority. The site of plaintiff’s bicycle accident, which had been graded years earlier and on which no construction activity had taken place, was far more similar to the vacant property in Nazar than to the open trench in the urban shopping center construction area discussed in Paige or the rooftop construction area involved in Potts.
The majority frustrates the Legislature’s clearly expressed intent in enacting section 846 by extending to the present case the narrow exception recognized in Paige and Potts. The majority’s conclusion that acreage is withdrawn from recreational use once it is graded is not supported by the language of the statute or by prior decisional law. Such a rule, however beneficent its application might appear in the present case, would best be left to possible legislative amendment of section 846 rather than to judicial attempts at speculation concerning what the Legislature might have intended in the present situation.
Although the court in Charpentier v. Von Geldern, supra, 191 Cal.App.3d 101, was concerned with application of the statute to a large tract which indisputably was suited to recreational use, I note that court’s [1080]assessment of the effect of failing to construe section 846 so as to “encourage[ ] private landowners to keep their properties open to the public for the enumerated recreational purposes”—namely, the consequent imposition of substantial financial burdens on landowners required to fence in their acreage, and ever-increasing restrictions on the public’s access to already scarce open recreational land. “The owner of a large parcel of undeveloped property .. . faces a difficult task defending the property from trespassers . . . and in taking precautions to render the premises safe. If such landowners were exposed to the risk of negligence liability for injuries sustained by trespassing recreational users, the effect would undoubtedly be to encourage them to withdraw hundreds of miles of . . . land . . . from recreational access. This result would significantly gut the legislative objective of section 846 and should be avoided. (See Collins v. Tippett [(1984)] 156 Cal.App.3d [1017,] at p. 1020 [203 Cal.Rptr. 366].)” (191 Cal.App.3d at p. 111.)
I conclude that defendant’s land did not fall within the judicially recognized exception to section 846 applicable to property unsuitable for recreational purposes.
II
Whether Defendant’s Conduct Fell Within Civil Code Section 846’s Exception for “Willful Or Malicious Failure to Guard Or Warn Against A Dangerous Condition, Use, Structure Or Activity”
Plaintiff contends additionally that the trial court erred in granting summary judgment because, even if the property was not unsuitable for recreational purposes, defendant’s conduct fell within the exception in section 846 for “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.”
I agree with the lower court, which found plaintiff’s alternate theory of willful or malicious failure to warn “not even close.”
In construing section 846, this division has noted: “ ‘The concept of wilful misconduct has a well-established, well-defined meaning in California law. “Willful or wanton misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results. [Citation.]” ’ (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689 [217 Cal.Rptr. 522], quoting O’Shea v. Claude C. Wood Co. (1979) 97 Cal.App.3d 903, 912 [159 Cal.Rptr. 125].)
[1081]“ ‘ “Three essential elements must be present to raise a negligent act to the level of wilful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. [Citations.]” ’ [Citations.]” (Nazar v. Rodeffer, supra, 184 Cal.App.3d 546, 552; see also New v. Consolidated Rock Products Co., supra, 171 Cal.App.3d 681, 689-691.)
Plaintiff made no showing of any prior accidents, of a hidden dangerous condition, or of a recent change of conditions making the area especially dangerous to bicycle riders. In contrast to the present case, the defendant in Lostritto v. Southern Pac. Transportation Co. (1977) 73 Cal.App.3d 737, 744-745 [140 Cal.Rptr. 905], was informed that past recreational users of the property had been injured (diving from defendant’s railroad trestle) but failed to post warning signs or erect inexpensive barriers to prevent the practice. Thus the Court of Appeal in that case affirmed the lower court’s denial of defendant’s motion for judgment notwithstanding the verdict as to the claim of willful misconduct (while also affirming the granting of that motion, under the provisions of § 846, as to the count alleging ordinary negligence). (See also Charpentier v. Von Geldern, supra, 191 Cal.App.3d 101, 113; O’Shea v. Claude C. Wood Co. (1979) 97 Cal.App.3d 903, 913.)
None of the affidavits introduced by the parties at the summary judgment proceedings support plaintiff’s conclusional statement in the complaint that defendant willfully or maliciously failed to warn against dangers which were known or which should have been known.
I therefore conclude that defendant’s motion for summary judgment was properly granted, and I would affirm the judgment of the court below.
On February 3, 1988, the opinion was modified to read as printed above.
The record before us does not indicate plaintiff’s age.
The recreational uses specified by section 846 encompass “riding, including animal riding” and “vehicular riding.” Recreational bicycle riding comes within the statutory category of “riding” rather than “vehicular riding,” since the term “vehicle” excludes bicycles (Veh. Code, § 670) and the term “bicycle” is defined, in part, as “a device upon which any person may ride . . . .” (Veh. Code, § 231, italics added.)
Section 846 provides: “An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section. [j|] A “recreational purpose, ’ as used in this section, includes such activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites. [][] An owner of any estate or any other interest in real property, whether possessory or nonpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for such purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section. []]] This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner. [])] Nothing in [1072]this section creates a duty of care or ground of liability for injury to person or property.” (Italics added.)
Gerkin has been “disapproved” by the Supreme Court insofar as the decision applies section 846 to public entities. (Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d at p. 707.)