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)



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          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  
                                                                       




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            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  
                                                                       




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            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,  
                                                                       




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               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. 
                                                                       




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               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  
                                                                       




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               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  
                                                                       




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               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  
                                                                       




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            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,  
                                                                       




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            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  
                                                                       




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            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  
                                                                       




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            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 
                                                                       




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                                              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).  

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