Filed 8/1/18
                             CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FIRST APPELLATE DISTRICT

                                      DIVISION ONE


 CAROLYN STAATS,
          Plaintiff and Appellant,
                                                  A147928
 v.
 VINTNER’S GOLF CLUB, LLC,                        (Napa County
                                                  Super. Ct. No. 26-64964)
          Defendant and Respondent.


        Plaintiff Carolyn Staats nearly died after being attacked by a swarm of yellow
jackets while playing golf on a Yountville course operated by Vintner’s Golf Club, LLC
(Club). She sued the Club for general negligence and premises liability, but the trial
court granted summary judgment against her on the basis that the Club owed no duty to
protect its patrons from yellow jackets that came from an undiscovered nest on the
course.
        We reverse. We hold that the duty of golf course operators to maintain their
property in a reasonably safe condition includes a duty to exercise reasonable care to
protect patrons from nests of yellow jackets on the premises. The measures a golf course
operator must take to satisfy this duty may vary, and we do not address whether the Club
breached its duty, or whether any such breach caused Staats’s injuries. Here, those
questions involve unresolved issues of material fact that must be determined by the trier
of fact in the first instance.




                                             1
                                          I.
                                FACTUAL AND PROCEDURAL
                                     BACKGROUND
        In early July 2013, Staats was taking a golf lesson from Jeffrey Dennis, an
instructor at the Club. As she prepared to take a shot on the fairway of the fifth hole, she
was attacked by a swarm of yellow jackets.1 She screamed, and Dennis tried to swat
away the insects. The two then ran about 150 yards until the swarm stopped pursuing
them.
        Staats got into a car to be taken to the hospital and started losing consciousness.
Dennis remembered there was a fire station close by, and he ran ahead to summon the
paramedics outside while someone else drove Staats to the station. She was given a shot
and quickly transported to a Napa hospital. A paramedic said Staats had been “within
fifteen seconds” of dying.
        Staats had been stung over 50 times, and she experienced “redness, welts, and
swelling” all over her body. She spent the night in the intensive-care unit and missed
over five weeks of work. The attack left her highly allergic to yellow jacket stings, and
she now must be given three injections per month and carry multiple epinephrine pens.
        At the time of the incident, the Club had no written policy on inspecting its
grounds for dangerous conditions or pests. It did, however, have a pest-control company,
Clark Pest Control (Clark), perform monthly inspections around the Club’s restaurant and
offices, primarily to discover and eradicate “roaches, insects, [and] ants.” Both the
Club’s golf director and its grounds superintendent had seen stray yellow jackets or bees
on the golf course before, but it is undisputed that before Staats was attacked the Club
had no actual knowledge of any swarm, hive, or nest ever being on the grounds or of any
patron ever being stung there. The Club never set traps or took other measures to control
yellow jackets because it did not perceive them to be a problem.


        The term “yellow jacket” refers to “[a]ny of various North American predatory
        1

social wasps.” (Oxford English Dict. Online (2018) <http://www.oed.com> [as of
August 1, 2018 [yellow jacket].)


                                              2
       The day after the attack, the Club’s business manager inspected the area of the
fifth hole but did not see “any bees or yellow jackets” or locate “anything that looked like
any type of hive or nest.” The following day, at the manager’s request, a Clark employee
also conducted an inspection after Dennis pointed out where the swarm attacked Staats.
The Clark employee “walked around the area looking for a nest,” and “[a]fter looking for
approximately fifteen minutes, [he] saw an underground hole about one and a half inches
around. It was near the edge of a sand trap and had a partial lip of grass over the hole.
There were about four to [five] yellow jacket/wasp[-]looking bees on the ground and
about a dozen flying around.” The Clark employee sprayed the underground nest and
left. Yellow jacket traps were also placed near the fifth hole.
       Staats filed this lawsuit in September 2014, asserting causes of action for general
negligence and premises liability. The Club moved for summary judgment, claiming that
it owed no duty to protect patrons from “an attack by a wild swarm of insects without . . .
prior knowledge of [the swarm’s] residence, congregation[,] or injury[-]producing
behavior.” The trial court granted the motion, finding that the Club “had no duty to
protect against the risk in this case” because of the Club’s “lack of knowledge” of
“swarming yellow jackets or subterranean yellow jacket nests on the golf course
fairway.” The court entered final judgment for the Club in October 2015.
                                             II.
                                        DISCUSSION
       A.     Standard of Review.
       A motion for summary judgment is properly granted if “there is no triable issue as
to any material fact and . . . the moving party is entitled to judgment as a matter of law.”
(Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must
present evidence that either “conclusively negate[s] an element of the plaintiff’s cause of
action” or “show[s] that the plaintiff does not possess, and cannot reasonably obtain,”
evidence necessary to establish an element of the claim. (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 853-854.) If the defendant meets this burden, “the burden




                                              3
shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as
to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)
       We review the record de novo, “liberally construing the evidence in support of the
party opposing summary judgment and resolving doubts concerning the evidence in favor
of that party.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) “We
affirm the trial court’s decision if it is correct on any ground the parties had an adequate
opportunity to address in the trial court, regardless of the reasons the trial court gave.”
(Jameson v. Pacific Gas & Electric Co. (2017) 16 Cal.App.5th 901, 909.)
       B.      The Relevant Issue Is Whether the Club’s Duty to Keep Its Premises
               Reasonably Safe Includes Protecting Patrons from Yellow Jacket Nests.
       “The elements of a negligence claim and a premises liability claim are the same: a
legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner
v. Superior Court (2016) 1 Cal.5th 1132, 1158 (Kesner).) Unlike the elements of breach,
causation, and injury, all of which are fact-specific issues for the trier of fact, the
existence and scope of a duty are questions of law. (Id. at pp. 1142, 1144; Alcaraz v.
Vece (1997) 14 Cal.4th 1149, 1162, fn. 4.)
       Under Civil Code section 1714, “[e]veryone is responsible, not only for the result
of his or her willful acts, but also for an injury occasioned to another by his or her want of
ordinary care or skill in the management of his or her property or person, except so far as
the latter has, willfully or by want of ordinary care, brought the injury upon himself or
herself.” (Civ. Code, § 1714, subd. (a).) The statute “ ‘establishes the general duty of
each person to exercise, in his or her activities, reasonable care for the safety of others.’ ”
(Kesner, supra, 1 Cal.5th at p. 1142.) Where, as here, there is no “ ‘statutory provision
establishing an exception to the general rule of Civil Code section 1714, courts should
create one only where “clearly supported by public policy.” ’ ” (Id. at p. 1143.)




                                                4
       As a consequence of this general duty, those who own or occupy property2 have a
duty to maintain their premises in a reasonably safe condition. (Ortega v. Kmart Corp.
(2001) 26 Cal.4th 1200, 1205 [store proprietor]; Alcaraz v. Vece, supra, 14 Cal.4th at
p. 1156 [possessor of land]; see also Morgan v. Fuji Country USA, Inc. (1995)
34 Cal.App.4th 127, 134 [duty of golf course operator “to provide a reasonably safe golf
course”].) To comply with this duty, a person who controls property must “ ‘ “ ‘inspect
[the premises] or take other proper means to ascertain their condition’ ” ’ ” and, if a
dangerous condition exists that would have been discovered by the exercise of reasonable
care, has a duty to give adequate warning of or remedy it. (Salinas v. Martin (2008)
166 Cal.App.4th 404, 412, italics omitted; see also Ortega, at pp. 1206-1207; Chance v.
Lawry’s, Inc. (1962) 58 Cal.2d 368, 373.)
       “ ‘ “[D]uty” is a question of whether the defendant is under any obligation for the
benefit of the particular plaintiff; and in negligence cases, the duty is always the same, to
conform to the legal standard of reasonable conduct in . . . light of the apparent risk.
What the defendant must do, or must not do, is a question of the standard of conduct
required to satisfy the duty.’ ” (Coffee v. McDonnell-Douglas Corp. (1972) 8 Cal.3d 551,
559, fn. 8.) The Club does not deny that it owed Staats, a patron of its golf course, a duty
to maintain its property in a reasonably safe condition. Rather, it contends that this duty
“is limited when the harm at issue is caused by insects.” Thus, the issue presented “is not
the existence of a duty . . . as such, or the class of persons to whom the duty extends, but
the nature and scope of the acknowledged duty.” (Ramirez v. Plough, Inc. (1993)
6 Cal.4th 539, 546.)
       To assess the scope of a duty, a court must “identify the specific action or actions
the plaintiff claims the defendant had a duty to undertake. ‘Only after the scope of the
duty under consideration is defined may a court meaningfully undertake the balancing
analysis of the risk and burdens present in a given case to determine whether the specific


       2
        This opinion will variously refer to an owner or occupier of property as a
property owner, a homeowner, or, as in the case of the Club, an operator of a business.


                                              5
obligations should or should not be imposed.’ ” (Castaneda v. Olsher (2007) 41 Cal.4th
1205, 1214.) Here, Staats claims that the Club had a duty to protect patrons from yellow
jacket nests, including underground nests, by inspecting for them and setting traps to
prevent their formation. Our analysis is therefore limited to assessing whether the Club’s
duty to maintain its property in a reasonably safe condition required the Club to take
steps to keep the premises free of yellow jacket nests. (See Verdugo v. Target Corp.
(2014) 59 Cal.4th 312, 336-337.)
       C.     Decisions Involving Bites by Stray Insects Are Distinguishable.
       In granting summary judgment in the Club’s favor, the trial court relied on two
cases addressing liability for insect bites. The Club claims that these decisions are
dispositive, but we disagree.
       In the first decision, Brunelle v. Signore (1989) 215 Cal.App.3d 122 (Brunelle),
the Fourth District Court of Appeal considered a premises liability claim against the
owner of a vacation home in which the plaintiff was bitten by a brown recluse spider.
(Id. at p. 125.) The court held that “an owner or occupier of a private residence does not
have a duty to protect [against] or prevent bites from harmful insects where: (1) it is not
generally known that the specific insect is indigenous to the area; (2) the homeowner has
no knowledge that a specific harmful insect is prevalent in the area where [the] residence
is located; (3) the homeowner has on no occasion seen the specific type of harmful insect
either outside or inside [the] home; and (4) neither the homeowner nor the injured guest
has seen the specific insect that bit the guest either before or after the bite occurred.” (Id.
at p. 129.) Under such circumstances, the injury was unforeseeable as a matter of law,
the burden of preventing injury would be “enormous,” and “the task of defining the scope
of the duty and the measures required of the homeowners would be extremely difficult.”
(Id. at pp. 125, 130.)
        In the second decision, Butcher v. Gay (1994) 29 Cal.App.4th 388 (Butcher), the
Fifth District Court of Appeal discussed Brunelle in ruling that a homeowner was not
liable to a guest who claimed she had contracted Lyme disease after being bitten by a tick
on the homeowner’s dog. (Butcher, at pp. 392, 401.) Butcher first concluded that there


                                               6
was a weaker factual basis for imposing a duty on the homeowner than there was in
Brunelle because the insect at issue, the western black-legged tick, was not readily
identifiable as inherently harmful as was the brown recluse spider in Brunelle. (Butcher,
at pp. 402-403.) Evidence showed that the western black-legged tick rarely carried Lyme
disease and was not easily distinguishable from other non-carrier species of ticks. (Id. at
p. 403.) Butcher also concluded that, even if there were a duty to protect against such
insects, the guest’s claim would still fail because no evidence was presented that the
homeowner had any actual or constructive knowledge that any ticks carrying Lyme
disease were present on the premises. (Id. at p. 404.)
       Shortly before oral argument in this case, the Fourth District Court of Appeal
reversed a grant of summary judgment against a plaintiff who was seriously injured after
being bitten by a black widow spider while eating lunch on a restaurant’s patio. (Coyle v.
Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 631 (Coyle).) Determining that
“[i]t [was] a matter of common experience and knowledge in this geographical area that
black widow spiders are found inside and outside of buildings and that one must be
careful to avoid being bitten by a black widow,” Coyle held that “[r]estaurant owners
have a duty to exercise reasonable care in relation to black widow spiders posing a risk of
injury to patrons on the restaurant premises.” (Id. at pp. 636, 639.)
       In so holding, the Court of Appeal declined to endorse Brunelle’s comment that a
duty to protect against a harmful insect could not be imposed if the defendant had never
seen that insect on the property. (Coyle, supra, 24 Cal.App.5th at pp. 641-643; see
Brunelle, supra, 215 Cal.App.3d at pp. 129-130.) Coyle suggested that Brunelle relied
too much on “the specific facts of [the] case when analyzing the issue of duty” and
effectively “usurp[ed] the jury’s role” of determining which actions the exercise of
reasonable care requires. (Coyle, at p. 642.) Rather, the relevant issue is whether,
“generically, not dependent on the facts of the case, . . . there [is] a duty of care,” and, if
so, whether “the usual standard of reasonable care [should] apply.” (Ibid.) The facts of a
case come into play in determining what measures are required to satisfy the standard of
care. (Id. at pp. 642-643; see also id. at p. 641 [restaurant’s claim it was unaware of


                                               7
spiders on its property “will be relevant when arguing the meaning of ‘reasonable care’ to
the trier of fact”].) Whether the measures taken by a defendant satisfied the duty of care
can be determined as a matter of law when, but only when, the pertinent facts are not
reasonably disputed. (Coyle, at pp. 642-643 & fn. 2.)
       The Club contends that Brunelle and Butcher “reached . . . equivalent outcomes
based on the same fundamental principle: a property owner owes no duty for harm
caused by insects in the absence of actual and specific notice of the danger.” (Italics
added.) As Coyle makes clear, however, it is improper to determine whether a duty exists
based on the specific facts of the case, which include the extent of the defendant’s
knowledge of the danger. It is true that in Coyle, black widow spiders had previously
been observed on the restaurant’s property, and the Club’s position is thus arguably
consistent with the decision’s holding, if not its reasoning. But even if Brunelle and
Butcher can be reconciled with Coyle, these decisions involved claims by plaintiffs bitten
by individual insects whose source was unknown. In declining to hold that, absent any
knowledge such insects were present in the area, homeowners had a duty to protect
guests from them, Brunelle and Butcher never discussed whether the homeowners could
have discovered the risk posed by the insects through a reasonable inspection of their
property or minimized the risk through preventive measures.
       In contrast, the swarm of yellow jackets that attacked Staats likely came from a
condition on the Club’s premises, i.e., a nest. The Club disclaims any duty by
characterizing it as one to prevent “a danger that did not exist” until the moment the
swarm formed and became dangerous, but Staats’s claim is based on the Club’s alleged
failure to inspect its premises to discover and eradicate yellow jacket nests. Brunelle and
Butcher involved dangers posed by stray insects. Their holdings are not at odds with
recognizing a duty of a property owner to protect against dangers posed by discrete




                                             8
conditions on the property, such as yellow jacket nests, from which dangerous insects
emanate.3
       D.     The Club’s Duty to Keep Its Premises in a Reasonably Safe Condition
              Includes Protecting Patrons from Yellow Jacket Nests.
       We now turn to the central question of whether the scope of Club’s duty to keep
its premises in a reasonably safe condition categorically does not include protecting
patrons from yellow jacket nests. In determining whether public policy supports carving
out an exception to the general duty of reasonable care, “the most important factors are
‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff
suffered injury, the closeness of the connection between the defendant’s conduct and the
injury suffered, the moral blame attached to the defendant’s conduct, the policy of
preventing future harm, the extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk involved.’ ” (Kesner, supra,
1 Cal.5th at p. 1143, quoting Rowland v. Christian (1968) 69 Cal.2d 108, 113 (Rowland);
Castaneda v. Olsher, supra, 41 Cal.4th at p. 1213; Barnes v. Black (1999) 71 Cal.App.4th
1473, 1478.) The Supreme Court has explained that “[t]he Rowland factors fall into two
categories. Three factors—foreseeability, certainty, and the connection between the


       3
          Under the common law doctrine of ferae naturae, “a property owner owes an
invitee no duty of care to protect him [or her] from wild animals indigenous to the area
unless [the owner] reduces the animals to his [or her] possession, attracts the animals to
the property, or knows of an unreasonable risk and neither mitigates the risk nor warns
the invitee.” (Union Pac. R.R. Co. v. Nami (Tex. 2016) 498 S.W.3d 890, 897.) The
doctrine precludes strict liability for injuries caused by wild animals, although how it
applies to negligence claims is less clear. (See id. at pp. 903-904 (dis. opn. of
Johnson, J.) [“[U]nder the broad common law . . . there is not a current consensus about
whether the ferae naturae doctrine eliminates any duty on the part of those who own or
possess land to take reasonable action to warn persons on the land of, or protect them
from, the risk of harm posed by wild animals or insects that might foreseeably come onto
the land”].) Brunelle observed that the doctrine supported its holding but did not rely on
it, noting that “there are no California cases which consider the issue.” (Brunelle, supra,
215 Cal.App.3d at p. 129, fn. 5.) Neither party addresses the applicability of the doctrine
here, and we conclude that it does not immunize the Club from liability.


                                               9
plaintiff and the defendant—address the foreseeability of the relevant injury, while the
other four—moral blame, preventing future harm, burden, and availability of insurance—
take into account public policy concerns that might support excluding certain kinds of
plaintiffs or injuries from relief.” (Kesner, at p. 1145.)
              1.     Foreseeability factors.
       As we have mentioned, the existence and scope of a duty are questions of law,
while breach, causation, and injury are fact-specific issues for the trier of fact. (Kesner,
supra, 1 Cal.5th at p. 1142.) As a consequence, the analysis of foreseeability for
purposes of assessing the existence or scope of a duty is different, and more general, than
it is for assessing whether any such duty was breached or whether a breach caused a
plaintiff’s injuries. “[I]n analyzing duty, the court’s task ‘ “ ‘is not to decide whether a
particular plaintiff’s injury was reasonably foreseeable in light of a particular
defendant’s conduct, but rather to evaluate more generally whether the category of
negligent conduct at issue is sufficiently likely to result in the kind of harm experienced
that liability may appropriately be imposed on the negligent party.’ ” ’ ” (Laabs v.
Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1272-1273 (Laabs), some
italics added.) “The jury, by contrast, considers ‘foreseeability’ in two more focused,
fact-specific settings. First, the jury may consider the likelihood or foreseeability of
injury in determining whether, in fact, the particular defendant’s conduct was negligent in
the first place. Second, foreseeability may be relevant to the jury’s determination of
whether the defendant’s negligence was a proximate or legal cause of the plaintiff’s
injury.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6.)
       Staats argues that the relevant question here, “framed at the proper level of
generality, is whether it is foreseeable that someone playing golf . . . might be attacked by
a swarm of venomous stinging insects which have nested on the golf course in an area
from which golfers will foreseeably play.” The Club frames the relevant question
similarly, arguing that the issue is whether it is “foreseeable that an unknown,
underground nest of yellow jackets might become agitated, form a swarm, and attack a
patron.” Under both formulations, the focus is not on whether the Club knew or should


                                               10
have known about the particular yellow jacket nest at issue or whether it was foreseeable
that Staats would be attacked by a swarm emanating from it. Rather, the focus is on the
more general question of whether it is foreseeable that a yellow jacket nest on the
grounds might pose a danger to patrons.
       “Foreseeability supports a duty only to the extent the foreseeability is reasonable.”
(Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 306.) When determining whether a
particular category of harm is reasonably foreseeable, “ ‘it is well to remember that
“foreseeability is not to be measured by what is more probable than not, but includes
whatever is likely enough in the setting of modern life that a reasonably thoughtful
[person] would take account of it in guiding practical conduct.” [Citation.] One may be
held accountable for creating even “ ‘the risk of a slight possibility of injury if a
reasonably prudent [person] would not do so.’ ” ’ ” (Laabs, supra, 175 Cal.App.4th at
p. 1272, quoting Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57.)
       The evidence presented here supports the conclusion that it was reasonably
foreseeable that yellow jackets in an underground nest on the premises would form a
swarm and attack a nearby golfer. In opposing the Club’s motion for summary judgment,
Staats submitted the declaration of Lynn Kimsey, Ph.D., an entomologist at the
University of California, Davis. Dr. Kimsey averred that “[y]ellow jackets are prevalent
throughout Northern California, including [in the] Napa Valley.” “Abandoned gopher
holes, ground squirrel holes[,] and rabbit burrows are favored areas for [yellow jacket]
nests,” and “[i]t is eminently foreseeable” that yellow jackets will form nests in such
locations on a golf course. Dr. Kimsey also stated that “[y]ellow jackets aggressively
protect their nest if they feel it is threatened” and that “[t]he only time yellow jackets
behave [en masse]” as they did to attack Staats “is very near the nest entrance, to protect
it, usually within ten feet or so of the entrance to the nest.” Staats also submitted the
declaration of a provider of pest control services who had treated underground yellow
jacket nests at other golf courses in Northern California, including one in Napa Valley.
Finally, Club employees acknowledged they had previously seen yellow jackets on the
course.


                                              11
       The Club claims that the danger was not foreseeable because no danger existed
“until the underground nest became agitated and produced a swarm of yellow jackets.”
But the question is whether it is reasonably foreseeable that a nest of yellow jackets—i.e.,
a condition existing on the premises—might produce a swarm that would attack a patron.
Contrary to the Club’s position, a danger does not have to “previously manifest” to be
foreseeable. “ ‘ “[T]he mere fact that a particular kind of an accident has not happened
before does not . . . show that such accident is one which might not reasonably have been
anticipated.” [Citation.] Thus, the fortuitous absence of prior injury does not justify
relieving [a] defendant from responsibility for the foreseeable consequences of its acts.’ ”
(Lawrence v. La Jolla Beach & Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 31.) In any
event, because we must assess whether the presence of nests on a golf course creates a
general risk of foreseeable injury—i.e., the possibility that yellow jackets will swarm and
attack a golfer—we find it of marginal importance that the Club claims it was unaware of
any previous swarm or sting. (See Laabs, supra, 175 Cal.App.4th at p. 1273 [where
defendant “sought summary judgment solely on the ground that it ‘owed no duty’ as a
matter of law,” court “not concerned with . . . ‘more focused, fact-specific’ inquiries”
involving defendant’s conduct in particular].)
       Moreover, Staats presented evidence that the Club, like the defendant in Coyle and
unlike the defendants in Brunelle and Butcher, was aware that yellow jackets could be
found in the area, and specifically on the golf course. The Club says it could not
anticipate the level of danger without consulting with “a trained expert to determine
when, how, and where a yellow jacket swarm might form and launch an attack.” But it is
common knowledge that yellow jackets live in nests and are dangerous in large numbers,
and people generally avoid these nests for fear of being stung. Even without knowing the
specific reasons why swarms form, reasonable people can foresee that a yellow jacket
nest could cause injuries.
       The other two factors related to foreseeability of the injury also weigh in favor of
finding a duty. “The second Rowland factor, the degree of certainty that the plaintiff
suffered injury, ‘has been noted primarily, if not exclusively, when the only claimed


                                             12
injury is an intangible harm such as emotional distress’ ” or where there are “concerns
about the existence of a remedy.” (Kesner, supra, 1 Cal.5th at p. 1148.) Here, there is no
dispute that Staats suffered an injury that is “certain and compensable under the law.”
(Ibid.) “The third Rowland factor, ‘ “the closeness of the connection between the
defendant’s conduct and the injury suffered[,]” [citation] is strongly related to the
question of foreseeability itself’ ” and generally is relevant when intervening third party
conduct caused the injury. (Ibid.) Here, to the extent the forming of a yellow jacket
swarm can be analogized to such conduct, we have already discussed why it is reasonably
foreseeable that a nest of yellow jackets might cause injury to golfers.
              2.     Policy factors.
       Having concluded that it is reasonably foreseeable that a yellow jacket nest on a
golf course could cause injury, we turn to weigh the “ ‘ “ ‘policy considerations for and
against the imposition of liability.’ ” ’ ” (Kesner, supra, 1 Cal.5th at pp. 1149-1150.) We
start by addressing the main policy factor the parties discuss, the burden on a golf course
operator to comply with the duty of ordinary care in this context. (See Kesner, supra,
1 Cal.5th at p. 1152; see also Lawrence v. La Jolla Beach & Tennis Club, Inc., supra,
231 Cal.App.4th at pp. 23-24 [“primary considerations” when scope of duty is at issue
“are the foreseeability of the harm and the burden on the defendant of protecting against
the harm”].) The Club contends that a duty to protect its patrons from yellow jacket nests
would impose an “immense burden of inspecting its entire outdoor property—including
every hole, crevice, tree, shrub, etc.—for every conceivable danger that might someday
come into being under precise circumstances. It is difficult to imagine the limits of such
a duty—it would extent to every type of insect, rodent, bird, and other natural creature
that could someday resort to its base instinct and harm a patron.” We are not convinced.
       To begin with, the issue here is whether a golf course operator has a duty to
protect its patrons from the risk posed by yellow jackets nests, which are a condition on
the premises, not whether it has a duty to protect against harm caused by wild animals
more broadly. The existence of a duty to protect against the risk of other animals or



                                             13
insects will depend on a variety of factors, such as whether the animals or insects are
inherently dangerous and whether their source is a condition on the premises.
       In addition, the duty of a golf course operator to protect patrons from yellow
jacket nests does not necessarily require the operator to inspect the “entire outdoor
property,” much less “every hole, crevice, tree, [or] shrub.” As we have mentioned, the
measures an operator must take to comply with the duty to keep the premises in a
reasonably safe condition depend on the circumstances, and the issue is a question for the
jury unless the facts of the case are not reasonably in dispute. (See Kesner, supra,
1 Cal.5th at p. 1144; Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 131;
Coyle, supra, 24 Cal.App.5th at pp. 640, 642-643 & fn. 2.)
       The Club points to the declarations of its business manager and its grounds
superintendent to support its claim that it would have to hire an additional employee to
comply with the proposed duty. Both men stated that “[r]outine inspection of each and
every hole, pipe, culvert, tree, depression and crevice on the course would require hiring”
at least one additional ground crew member “whose sole job would be to inspect for
flying insect nests [and] hives.” The business manager further averred that the costs of
hiring one or more additional employees to perform such inspections “would be
overwhelming and would threaten if not make [impossible] continued operation.” But
evidence addressing the economic burden of inspecting every conceivable place a nest
might form is unhelpful in assessing the burden of finding a duty to exercise reasonable
care in keeping golf course patrons safe.
       Staats maintains that the risk of yellow jacket attacks can be significantly
mitigated through setting traps, and she accurately observes that the Club has not shown
“that retaining a pest control service to regularly inspect for and treat insect nests is
somehow prohibitively expensive for a golf course.” She points to the declaration of the
pest control services provider, in which he stated that for several years he provided pest
control services for a resort in the Napa Valley whose property included a golf course.
Because the resort “did not like yellow jackets flying around,” he “instituted a program to
stop the nests at early stages” by setting up “bait stations with a mixture of hamburger


                                              14
and pesticides. The yellow jackets would take the hamburger back to the underground
nests and feed it to the larvae. This would poison them and prevent the proliferation of
more yellow jackets.” He had also treated several nests discovered at the resort and at
other golf courses in the Bay Area, including those discovered “by grounds[]keeper
personnel who saw them while mowing the lawn in the fairways.”
       The Club does not claim that retaining a pest control service to eradicate existing
yellow jacket nests would be particularly costly, and as we have said, its evidence about
the cost of inspections addresses only the unreasonable scenario under which it would
have to meticulously comb through the entire premises looking for hidden nests. The
Club also maintains that the claim its existing personnel “could simply install traps” is
“devoid of merit” because “[t]here is no evidence in the record that installation of traps
would eradicate entire nests, as opposed to isolated yellow jackets.” While it may be true
that traps would not remove the danger posed by existing nests, there is evidence that
traps would prevent the formation of new nests, significantly reducing the risk to patrons.
In sum, there is no basis in the record for us to conclude that a duty to exercise reasonable
care in protecting patrons from yellow jacket nests would impose a heavy burden on golf
course operators.
       The remaining policy-related Rowland factors do not weigh in favor of carving out
an exception to the duty of golf course operators to keep their premises reasonably safe.
Most importantly, the policy of preventing future harm supports imposing the cost of
injuries on the operators. “In general, internalizing the cost of injuries caused by a
particular behavior will induce changes in that behavior to make it safer.” (Kesner,
supra, 1 Cal.5th at p. 1150.) The Club does not dispute that protecting people from
serious injury or even death is an important policy, and it does not point to any “ ‘laws or
mores indicating approval of the conduct or . . . undesirable consequences of allowing
potential liability’ ” in relation to the community’s interest. (Ibid.) Relatedly, the factor
of moral blame weighs against creating an exception for yellow jacket nests because golf
course operators are in a better position to protect against the risk posed by nests on their
premises than golfers are. (See id. at p. 1151 [appropriate to assign moral blame “where


                                              15
the defendants exercised greater control over the risks at issue”].) And although there is
no evidence in the record about the availability or cost of insuring against the risk, we
find it hard to believe that golf courses would have excessive difficulty procuring
insurance coverage to cover injuries to their patrons from yellow jacket attacks. (See
Coyle, supra, 24 Cal.App.5th at p. 638.)
       Finally, the Club contends that we should hesitate to “impos[e] a legal duty that a
landowner must find and kill animals found on its natural property,” because “the law
recognizes that animals are ‘living creatures’ and must be treated as such.” We recognize
that the type of animal at issue may affect the policy considerations in weighing whether
there is a duty to protect against the risk the animal poses. For example, the Legislature
has enacted laws to protect bees because bees are important to the state’s welfare. (Food
& Agr. Code, §§ 29000, 29100, subd. (a); see generally id., § 29000 et seq.) If an animal
was endangered, or risked becoming endangered, that might also weigh against a duty
that would in practice require killing the animal. The Club points to no law or other
circumstance, however, suggesting yellow jackets need special protection. We agree
with Staats that in this instance, the policy of protecting human life outweighs the policy
of protecting animal life.
       Having concluded that the Club had a duty to protect Staats from the risk posed by
yellow jacket nests on its property, we perceive no other basis on which to affirm the
grant of summary judgment. We agree with Staats that triable issues of material fact
exist as to the other elements of her negligence claims, and the Club does not argue
otherwise. In particular, which actions the Club should have taken to minimize the risk
(including the extent of reasonable inspections), whether the Club did take those actions,
and whether any failure to do so proximately caused Staats’s injuries are all questions for
the trier of fact. We hold only that golf course operators are not exempted from
exercising reasonable care to protect their patrons against the foreseeable risk posed by
yellow jacket nests on their premises.




                                             16
                                          III.
                                      DISPOSITION
      The judgment is reversed, and the case is remanded for further proceedings
consistent with this opinion. Appellant is awarded her costs on appeal.




                                           17
                                             _________________________
                                             Humes, P.J.




I concur:




_________________________
Dondero, J.




Staats v. Vintner’s Golf Club, LLC A147928



                                        18
                               CONCURRENCE OF JUSTICE BANKE
       I concur in the judgment. Given the uncontroverted record that the golf course in
question is in an area where yellow jackets are endemic, there seems no question that,
under established case law, the owner’s duty of care, as to at least the area of play,
includes taking reasonable measures to protect against the formation of yellow jacket
nests and to eradicate nests revealed by reasonable inspection of the property.
       I write separately to observe that as the courts renew their focus on a “broad level
of factual generality” in evaluating duty (Cabral v. Ralphs Grocery Co. (2011)
51 Cal.4th 764, 772; accord Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1144–
1143), we must remain mindful that facts can be articulated at such a heightened level of
generality as to enter the realm of boundless foreseeability, which the duty analysis is
intended to foreclose (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397).1 So, too,
as the courts recognize that the facts of a “particular case” generally pertain to breach and
causation, rather than to duty (Regents of University of California v. Superior Court
(2018) 4 Cal.5th 607, 629–630; Kesner, at p. 1144), we should anticipate that there will
be cases where a fully developed record reveals that no reasonable finder of fact could


       1
          In some contexts, the courts have continued to focus on particularized facts in
determining whether a duty of due care is owed—for example, in connection with the
criminal conduct of third parties in the absence of a “special relationship” (e.g.,
Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213–1214; Wiener v. Southcoast
Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1145–1151; Smith v. Freund (2011)
192 Cal.App.4th 466, 472–476; Melton v. Boustred (2010) 183 Cal.App.4th 521, 536–
539; J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 396–399; Rinehart v.
Boys & Girls Club of Chula Vista (2005) 133 Cal.App.4th 419, 430–435) and for injuries
caused by a dog owned by someone other than the defendant (e.g., Chee v. Amanda Goldt
Property Management (2006) 143 Cal.App.4th 1360, 1369–1372; Martinez v. Bank of
America (2000) 82 Cal.App.4th 883, 890–892). Notably, in Castaneda, Justice Kennard
both dissented and concurred. In her view, the majority improperly focused on particular
facts of the case and confused the issue of duty with that of breach. (Castaneda, at
pp. 1225–1229 (conc. & dis. opn. of Kennard, J.).) However, for policy reasons, Justice
Kennard joined in holding that the owner of a mobile home park owed no duty to refuse
to rent space to a suspected gang member. (Id. at pp. 1229–1230 (conc. & dis. opn. of
Kennard, J.).)


                                              1
conclude there was a breach of the duty of due care or that any breach thereof was the
cause of the claimed injury, and summary judgment would be properly granted. (E.g.,
Peralta v. The Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1034–1037; see Luna
v. Vela (2008) 169 Cal.App.4th 102, 114 [observing that reversal on assumption of risk
and duty issues would not preclude summary judgment on fully developed record based
on no breach or causation]; Smith v. St. Jude Medical, Inc. (2013) 217 Cal.App.4th 313,
322–323; Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 764–765; cf. Regents of
University of California, at p. 634 [emphasizing “that a duty of care is not the equivalent
of liability,” “[r]easonable care will vary under the circumstances of the case,” and the
“[c]ourts and juries should be cautioned to avoid judging liability based on hindsight”].)




                                             2
                                             _________________________
                                             Banke, J.




A147928, Staats v. Vintner’s Golf Club




                                         3
Trial Court:

       Napa County Superior Court



Trial Judge:

       Hon. Diane M. Price



Counsel for Plaintiff and Appellant:

       Bruce L. Ahnfeldt, Law Office of Bruce L. Ahnfeldt

       Frederick H. Brennan, Law Office of Bruce L. Ahnfeldt



Counsel for Defendant and Respondent:

       Gregory P. Arakawa, Wood, Smith, Henning & Berman LLP

       Steven R. Disharoon, Wood, Smith, Henning & Berman LLP




Staats v. Vintner’s Golf Club, LLC A147928
