BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Joseph L. Dunn, Chair 2005-2006 Regular Session SB 1179 S Senator Morrow B As Amended April 26, 2006 Hearing Date: May 9, 2006 1 Government Code 1 BCP:cjt 7 9 SUBJECT Recreational Activities: Skateboarding DESCRIPTION This bill would repeal existing law that provides public entities with limited immunity for injuries sustained while skateboarding at public skateboard parks. Public entities' current limited immunity only applies for injuries sustained, in public skateboard parks requiring safety gear, by skateboarders performing a trick, stunt, or luge who are at least age 14. This bill would replace that limited immunity with a broad immunity for all skateboarding activities occurring on public property regardless of the age of the skateboarder. Additionally, this bill would repeal existing law requiring skateboard park operators to require anyone using a skateboard park to wear a helmet, elbow pads, and knee pads. BACKGROUND Historically, the assumption of risk doctrine prevented individuals from recovering for injuries caused when they engaged in hazardous recreational activities. The rationale for this qualified immunity was that these individuals recognized the risk inherent in the activity, and voluntarily chose to accept that risk when engaging in that activity. In 1983, California codified a qualified immunity for public entities and employees for injuries suffered by (more) SB 1179 (Morrow) Page 2 individuals engaged in hazardous recreational activities. The included activities, such as rock climbing, sky diving and sport parachuting, all pose a substantial risk of injury to a participant or spectator. Over the years, other attempts have been made to expand the list of hazardous recreational activities. For example, mountain biking, but not ordinary use of a bicycle, was added to the list of hazardous recreational activities. In 1997, AB 1296 (Morrow) added skateboarding under certain conditions to the list of hazardous recreational activities. That provision will sunset on January 1, 2008, unless legislation is enacted to extend or repeal that sunset. Skateboarding results in public entity immunity only when the participant is at least 14, and performing a trick, stunt or luge skateboarding on public property meeting certain requirements. As a result of this immunity, communities began building skateboarding parks for the use of their residents. These skateboarding parks provide a dedicated location for individuals to skateboard without worry of trespassing or vehicular hazards. Pursuant to existing law, all of these skateboard parks require use of helmets, elbow pads and knee pads. As a further incentive to public skateboard parks to implement these mandatory safety guidelines, the limited immunity currently enjoyed by public entities is conditioned upon requiring skateboarders to wear the requisite safety equipment. Thus, the current scheme both provides dedicated locations for children to skateboard, and encourages the use of proper safety equipment. SB 1179 would add skateboarding in and of itself to the list of hazardous recreational activities and repeal the previous section requiring skate parks to mandate use of safety gear. CHANGES TO EXISTING LAW 1. Existing law shields public entities and public employees from liability to any person participating in a hazardous recreational activity, including voluntary spectators who recognized the substantial risk of injury due to the activity. Public entities and public employees remain liable for injuries proximately caused by the negligent failure of the public entity or public employee SB 1179 (Morrow) Page 3 to properly construct or maintain in good repair any structure, recreational equipment or machinery, or substantial work of improvement. [Gov. Code 831.7.] Existing law defines "hazardous recreational activity" as a recreational activity conducted on the property of a public entity that creates a substantial risk of injury to a participant or spectator. Sample hazardous recreational activities include hang gliding, kayaking, motorized vehicle racing, pistol and rifle shooting, rock climbing, racketeering, spelunking, sky diving, sport parachuting and paragliding. [Gov. Code 831.7.] This bill would add skateboarding to the list of hazardous recreational activities. 2. Existing law requires skateboard riders and passengers to wear a properly fitted and fastened bicycle helmet when riding along a street, bikeway, or any other public bicycle path or trail. [Vehicle Code Section 21212.] Existing law defines skateboarding as a "hazardous recreational activity" if the person skateboarding is at least 14, the skateboarding activity causing injury was a stunt, trick or luge skateboarding, and the injury occurred on public property requiring a helmet, elbow pads and knee pads. Existing law also mandates that no operator of a skateboard park permit a person to skateboard within that park, unless that person wears a helmet, elbow pads and knee pads. [Health & Safety Code Section 115800.] This bill would repeal that section. This bill would state that the decision of a local public agency to regulate conditions at a public skateboard park does not alter their immunity from liability to persons engaging in hazardous recreational activities. COMMENT 1. Stated need for the bill The author notes that "numerous local governments have built skateboarding parks to provide skateboarders SB 1179 (Morrow) Page 4 appropriate venues for plying their skills." Further, the author states that existing law "provides these local governments liability protection less than the protection offered to [hazardous recreational activities] listed in the Gov[ernment] Code." According to the International Association of Skateboard Companies (IASC), supporter, "public entities are left vulnerable by [these] technicalities . . . and are consequently hesitant to construct more skateparks." Citing the mandated requirement that operators of skateboard parks require individuals to wear helmets, elbow pads and knee pads, the author contends that "[t]his one-size-fits-all statewide mandate does not recognize the wide variety of apparatus-related challenges found among skateboard parks." IASC adds that "[o]lder skateboarders are . . . alienated from skateparks by the broad gear requirements . . . and the possibility of citation for noncompliance." The author further states that "according to experts in the skateboarding field, injury statistics do not support treating skateboarding as more dangerous than other high-risk [hazardous recreational activities] . . . none of which have safety equipment (such as helmets and pads)." The City of Santa Barbara, supporter, adds that "[s]kateboarding statistically has fewer injuries than many other sports, but is one of the only sports with state mandated safety equipment." SB 1179 removes these safety requirements and immunizes public entities from liability for injuries. 2. Reconciliation of skateboarding risks and safety equipment requirements SB 1179 would both add skateboarding to the list of hazardous recreational activities (HRAs), and remove safety requirements for individuals skateboarding at skateboard parks. The author and supporters struggle to reconcile these two contradictory proposals. A. Risks of skateboarding Some supporters do tout the dangers of skateboarding, SB 1179 (Morrow) Page 5 while others emphasize its safety. The City of Lake Forest proclaims that "[c]learly, skateboarding is an activity that is hazardous regardless of age." Further elaborating on the danger posed, the California Association of Joint Powers Authorities (CAJPA), contends that "participants . . . are well aware of risks associated with skateboarding. Let's be realistic: we are talking about a small platform set on wheels, and 'ridden' at significant speeds on and around cement surfaces and obstacles." In contrast, the website for the SkatePark Association United States of America (SPAUSA), supporter, contains statistics detailed below which portray skateboarding as much safer than many other sports. As recognized in current law, performing tricks, stunts or luges on a skateboard by an individual of appropriate age, with the necessary safety gear is a hazardous recreational activity. It is at these times when the act of skateboarding poses a substantial risk of harm to the participant. The existing age and safety requirements are in place to ensure that the participant recognizes the risk posed by the activity, and has some protection against that substantial risk of injury. As mentioned above, the qualified immunity for this hazardous recreational activity sunsets on January 1, 2008. Ordinary riding of a skateboard, akin to roller-skates or push scooters, does not appear to pose the same hazardous risks of other hazardous recreational activities such as off-road motorcycling or sport parachuting. In fact the SPAUSA website states that "[s]kateparks with smooth surfaces and protective gear have a very low injury rate." That website further states that skateboarding, with .49% of its participants injured (27,718 out of 6,200,000), ranked significantly below ice hockey (3.6%), football (2.78%), basketball (2.57%), soccer (1.42%) and baseball (1.26%) in 1969. Similarly, 1999 statistics by the U.S. Consumer Product Safety Commission found that skateboarding, with .77% of its participants injured, ranks below football (1.99%), basketball (1.52%), soccer (1.00%) and baseball (1.61%) for percentage of participants injured. SB 1179 (Morrow) Page 6 Compared with ordinary bicycling, which is not classified as a hazardous recreational activity, the National SAFE KIDS Campaign (NSKC) reports significantly fewer injuries to children from skateboarding-related accidents. "In 2002, nearly 272,800 children ages 5 to 14 were treated in hospital emergency rooms for bicycle related injuries." During that same time period, only 60,100 of similarly aged children were treated for skateboard-related injuries. Unlike the data provided by SPAUSA, this data does not include the total number of kids engaged in each of the activities. Additionally, Judicial Council's reports to the Legislature pursuant to Health and Safety Code Section 115800 demonstrate the low level of injuries due to skateboarding. Judicial Council's March 13, 2002 report found that a total of 80 skateboarding injuries occurred at skateboarding parks in nine cities during the 2001 calendar year. Divided between nine cities, the injury rate in skateboarding parks is less than one per month. Considering the amount of skateboarders in each of these cities, it is difficult to see skateboarding as a sport with a substantial risk of injury to the participants. Furthermore, none of these injuries resulted in a lawsuit against the city. In fact, there are no published California cases including suits against a city for injuries caused at a skateboarding park. DOES NOT ORDINARY SKATEBOARDING FAIL TO RISE TO THE LEVEL OF OTHER HAZARDOUS RECREATIONAL ACTIVITIES? INSTEAD OF REMOVING THE LIMITED DEFINITION AS A HAZARDOUS RECREATIONAL ACTIVITY, SHOULD NOT THIS BILL EXTEND THE SUNSET PROVISION UNTIL 2012? As discussed below, most of these supporters want classification of skateboarding as a hazardous recreational activity either to promote building of skateparks, or to remove existing safety equipment restrictions. For those individuals engaged in riskier forms of skateboarding, existing case law concerning assumption of risk already provides SB 1179 (Morrow) Page 7 liability protection. B. Arguments for the effect of adding skateboarding as a hazardous recreational activity The main thrust of the supporters' arguments is not on the danger of skateboarding, but how public entity immunity will encourage expansion of skateboarding parks and on the importance of removing safety gear requirements. The City of Santa Barbara states that SB 1179 "would enable public entities to maintain their current skateboard parks with less risk of liability and may result in greater recreational opportunities for the citizens of California through the construction of new skateboard parks." Additionally, supporters contend that skateboarding parks have the incidental effect of reducing the amount of children who skateboard on city streets and parking lots. In contrast, the U.S. Consumer Product Safety Commission warns parents that "[s]kateboarding in the street can result in collisions with cars causing serious injury and even death." Supporters further argue that mandating the use of safety equipment in unstaffed skateboard parks is unnecessary. SPAUSA, supporter, contends that young kids are being ticketed in these skateboard parks for lack of the required safety equipment. SPAUSA further argues that children from poor neighborhoods are unable to pay these tickets, resulting in bench warrants for their arrest. As to the necessity of safety equipment, IASC states that "[a]necdotal accounts show that many skateboarders feel that pads and helmets restrict movement and impair balance, enhancing the possibility for injury." In contrast, the American Academy of Pediatrics (AAP) issued a policy statement finding that "[s]kateboard-related injuries account for an estimated 50,000 emergency department visits and 1,500 hospitalizations among children and adolescents in the United States each year." Of those 1,500 hospitalizations, the AAP states that most of the SB 1179 (Morrow) Page 8 injuries were to the head. AAP further states that "[p]ediatricians should advise parents, teachers, and others to strongly recommend that all skateboarders wear a helmet and other protective gear (including wrist guards, elbow pads, and knee pads) to prevent or reduce the severity of injuries resulting from falls." The U.S. Consumer Product Safety Commission adds that "[p]rotective gear . . . may not fully protect skateboarders from fractures, but its use is recommended as such gear . . . can reduce the number and severity of injuries." Contrary to those recommendations, this bill would eliminate the requirement for helmets, elbow pads and knee pads in skateboard parks. While this may encourage further use of skateboard parks, this enjoyment may come at the cost of unnecessary injury to participants. In recognition of the value of safety equipment, a single sponsor, the City of Arcadia suggests "amending the bill to retain the provision of requiring a local public agency that owns or operates a skateboard park to prohibit a person from riding a skateboard in the park unless the person is wearing protective gear . . ." SHOULD NOT THE PROVISIONS REQUIRING USE OF A HELMET, ELBOW PADS AND KNEE PADS AT SKATEPARKS BE RETAINED? 3. Current law regarding assumption of risk Generally, every individual has a duty to exercise ordinary care; failure to exercise reasonable care under the circumstances results in liability. [Parsons v. Crown Disposal Co. (1997) 15 Cal. 4th 456, 472; Rowland v. Christian (1968) 69 Cal. 2d 108, 112.] Primary assumption of the risk limits a defendant's liability when the inherent risks of a sport cannot be eliminated without destroying the sport itself. [Record v. Reason (1999) 73 Cal. App. 4th 472, 480.] These sports include those "done for enjoyment or thrill, requir[ing] physical exertion as well as elements of skill, and involv[ing] a challenge containing a potential risk of injury." [Id. at 482.] Even when assumption of the risk applies, "defendants generally do have a duty to use due care not to increase the risks to a participant over and above SB 1179 (Morrow) Page 9 those inherent in the sport." [Knight v. Jewett (1992) 3 Cal. 4th 296, 316.] In Calhoon v. Lewis, California's Fourth District Court of Appeal stated that "[s]kateboarding is a type of activity covered by the primary assumption of risk doctrine." [81 Cal. App. 4th 108, 115.] Thus, defendants cannot be held liable for risks inherent in the sport of skateboarding. For example, a skateboarder who enters a neighbors yard, attempts to perform a trick, loses his balance, hits a planter and impales himself on a metal pipe cannot hold the neighbor liable unless they held out their yard to skateboarders. [Id. at 110-18.] On the other hand, skatepark owners who know that individuals will be skateboarding in the park may be liable if their actions increase the risk inherent in the sport of skateboarding or fail to minimize risks to skateboarders. [Id. at 117-18.] Thus, current law already protects both public and private individuals from suits resulting from injuries as a result of the inherent risk of skateboarding. Furthermore, a 1998 Attorney General opinion requested by the author of this bill found that "skateboarding may be considered a 'hazardous recreational activity' under the terms of subdivision (b) of section 831.7 even though it is not specifically so identified in the statute." Subdivision (b) of Government Code Section 831.7 states that a hazardous recreational activity "means a recreational activity conducted on property of a public entity which creates a substantial . . . risk of injury to a participant or a spectator." Thus, depending on the type of skateboarding conducted, the public entity would be immune. For example, merely skateboarding down the sidewalk does not create a substantial risk of injury to anyone. While cracks in the sidewalk may pose some danger, it cannot be maintained that this simple act, akin to rollerskating, razor scootering, or bike riding, poses a substantial risk of injury. Once a participant begins performing tricks, stunts, or more aggressive riding of a skateboard, such as mountain boarding, their actions likely pose a substantial risk of injury which qualifies the activity as a hazardous recreational activity. Thus, SB 1179 (Morrow) Page 10 the effect of SB 1179 would be to extend public entity immunity to skateboarding that does not pose a substantial risk of injury to participants or spectators. DOES NOT BOTH CASE LAW CONCERNING ASSUMPTION OF THE RISK, AND EXISTING SECTION 831.7(B) SUFFICIENTLY PROTECT PUBLIC ENTITIES FROM LIABILITY? 4. History behind mandated safety equipment In 1978, California enacted legislation stating that "[n]o operator of a skateboard park shall permit any person to ride a skateboard therein, unless that person is wearing a helmet, elbow pads, and knee pads." In 1997, AB 1296 (Morrow) used that requirement as a foundation for public entity immunity for injuries occurring in publicly operated skateboard parks. The original version of AB 1296, like SB 1179, proposed an addition of skateboarding to the list of hazardous recreational activities. AB 1296 was amended in this committee to instead limit the categorization of skateboarding as a hazardous recreational activity to the certain circumstances detailed above. According to the Consumer Attorneys of California (CAOC), the final version of AB 1296 "represents a negotiated agreement between CAOC, Senator Morrow and other parties." Supporters, namely several skateboard advocates, contend that mandated safety equipment constitutes an unwanted government intrusion into skateboarding. Those supporters further contend that skateboarding should be left to "self regulate" the type of safety gear that is appropriate. Their concerns include law enforcement handing out tickets to young children for failure to wear proper safety gear, and that requiring safety gear in parks forces kids to skate on local streets. From the public entities' perspective, enforcement of current safety requirements is essential to preserving their limited liability. If law enforcement does not enforce the requirement for skateboarders to wear helmets, elbow pads and knee pads, the public entity essentially waives its current limited immunity for injuries occurring in those skateboard parks. As discussed above, medical professionals repeatedly SB 1179 (Morrow) Page 11 recommend that these children wear helmets, elbow pads and knee pads. Absent compelling evidence otherwise, the safety equipment requirement should not be removed merely because kids don't want to wear a helmet, elbow pads or knee pads. The same argument forwarded by skateboarding advocates can be made for motorcycle riders. Like skateboarders, many motorcycle riders firmly believe that the state should not require them to wear helmets. Many of these riders, by law at least 16 years old, also argue that they understand the risks of their sport and do not want to wear safety equipment. From a public policy standpoint, the law cannot choose to exempt one group of individuals from safety requirements merely because they do not want to comply. Moreover, the National SAFE KIDS Campaign states that "[s]ix out of every ten skateboarding injuries occur among children ages 14 and under." Unlike their older counterparts, these younger children likely lack the capacity to fully understand the risks associated with skateboarding and properly protect themselves with appropriate safety gear. 5. Public entity liability under SB 1179 for failing to require helmets, elbow pads and knee pads SB 1179 further provides that failure of a public entity to regulate conditions of use at a public skateboard park does not alter their immunity from liability to persons engaging in hazardous recreational activities. Essentially, this provision would allow cities to remove safety regulations without losing their immunity for injuries due to skateboarding. Committee staff believes the proposal is poor public policy. This allows cities to build skateboarding parks, and yet ignore safety measures that protect both the participant and the public purse. Injured skateboarders without insurance will be treated in emergency rooms at public cost and if the injuries are very severe, could be public charges for life. As discussed above, safety regulations are endorsed by various medical entities to protect the safety of young children. SB 1179 would repeal provisions requiring SB 1179 (Morrow) Page 12 safety gear, and provisions conditioning immunity on the skateboarder being age 14. Public entities would be free to allow young children into skateboarding parks without the benefit of any safety gear. Accordingly, SB 1179 allows cities to leave inexperienced young children to decide for themselves whether they should wear safety equipment, and escape liability for injuries resulting from that determination. It is these children under age 14 that account for six out of ten skateboarding injuries that are treated in hospital emergency rooms. Support: Civil Justice Association of California; City of Lake Forest; International Association of Skateboard Companies (IASC); California State Association of Counties (CSAC); City of Santa Barbara; League of California Cities; California Association of Joint Powers Authorities (CAJPA); City of Arcadia; Mayor of the City of Concord; City of Moreno Valley; Tony Hawk Foundation; SkatePark Association United States of America (SPAUSA) Opposition: Consumer Attorneys of California; City of Palm Desert HISTORY Source: Author Related Pending Legislation: AB 2696 (Huff), would add nonmotorized or electric scooters to the list of hazardous recreational activities and lower the age element for skateboard immunity from 14 to 10 years old. (This bill is in the Assembly Judiciary Committee.) SB 1407 (Margett), would add scootering on a push scooter to the list of hazardous recreational activities. (This bill is currently in the Senate SB 1179 (Morrow) Page 13 Judiciary Committee.) Prior Legislation: AB 1296 (Morrow), Chapter 573, Statutes of 1997, provided that skateboarding at a public skateboard park is a hazardous recreational activity if the person skateboarding is 14 years of age or older, the skateboarding activity was stunt, trick, or luge skateboarding, and the skateboard park is on public property. SB 994 (Morrow), Chapter 409, Statutes of 2002, extended the sunset provision established by AB 1296 (Morrow). **************