BILL NUMBER: AB 634	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Harkey

                        FEBRUARY 25, 2009

   An act to amend Section 831.7 of the Government Code, relating to
liability.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 634, as introduced, Harkey. Hazardous recreational activities.
   Under existing law, public entities and public employees are
generally not liable to any person who participates in various
hazardous recreational activities, as defined, including, but not
limited to, certain water contact and diving activities, kayaking,
surfing, waterskiing, white water rafting, and windsurfing. These
provisions do not limit liability that would otherwise exist for
damage or injury suffered in any case where permission to participate
in the hazardous recreational activity was granted for a specific
fee.
   This bill would include any form of self-contained underwater
breathing apparatus (SCUBA) diving among these hazardous recreational
activities. The bill would provide that the exception to this
provision allowing liability where a specific fee is charged does not
include a fee or surcharge levied, charged, or collected for SCUBA
diving access to an artificial reef created or placed in cooperation
with the state or any political subdivision thereof, and operated by
a 501(c)(3) nonprofit public benefit corporation. The bill would
provide that any person participating in those SCUBA diving
activities does so at their own risk.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 831.7 of the Government Code is amended to
read:
   831.7.  (a) Neither a public entity nor a public employee is
liable to any person who participates in a hazardous recreational
activity, including any person who assists the participant, or to any
spectator who knew or reasonably should have known that the
hazardous recreational activity created a substantial risk of injury
to himself or herself and was voluntarily in the place of risk, or
having the ability to do so failed to leave, for any damage or injury
to property or persons arising out of that hazardous recreational
activity.
   (b) As used in this section, "hazardous recreational activity"
means a recreational activity conducted on property of a public
entity  which   that  creates a substantial
 (as   , as  distinguished from a minor,
trivial, or  insignificant)   insignificant,
 risk of injury to a participant or a spectator.
   "Hazardous recreational activity" also means:
   (1) Water contact activities, except diving, in places where 
,  or at a time when  ,  lifeguards are not provided
and reasonable warning thereof has been given  ,  or the
injured party should reasonably have known that there was no
lifeguard provided at the time.
   (2) Any form of diving into water from other than a diving board
or diving platform, or at any place or from any structure where
diving is prohibited and reasonable warning thereof has been given.
   (3) Animal riding, including equestrian competition, archery,
bicycle racing or jumping, mountain bicycling, boating, cross-country
and downhill skiing, hang gliding, kayaking, motorized vehicle
racing, off-road motorcycling or four-wheel driving of any kind,
orienteering, pistol and rifle shooting, rock climbing, rocketeering,
rodeo, spelunking, sky diving, sport parachuting, paragliding, body
contact sports  (i.e., sports in which it is reasonably
foreseeable that there will be rough bodily contact with one or more
participants)  , surfing, trampolining, tree climbing, tree
rope swinging, waterskiing, white water rafting, and windsurfing. For
the purposes of this subdivision, "mountain bicycling" does not
include riding a bicycle on paved pathways, roadways, or sidewalks.
 For the purpose of this paragraph, "body contact sports" means
sports in which it is reasonably foreseeable that there will be rough
bodily contact with one or more participants.  
   (4) Any form of self-contained underwater breathing apparatus
(SCUBA) diving including, but not limited to, recreational diving,
technical diving, deep water diving, wreck diving, and penetration
diving. SCUBA diving is recognized as an inherently hazardous
activity involving risks of decompression sickness, embolism, or
other hyperbaric injuries that may require treatment in a
recompression chamber and diving on shipwrecks or overhead
environments involves further possible hazards related to drowning or
entrapment. Any person SCUBA diving on any vessel placed as an
artificial reef in cooperation with the state or any political
subdivision thereof, and operated by a 501(c)(3) nonprofit public
benefit corporation does so at his or her own risk. 
   (c)  (1)  Notwithstanding  the provisions of
 subdivision (a), this section does not limit liability
 which   that  would otherwise exist for
any of the following: 
   (1) 
    (A)  Failure of the public entity or employee to guard
or warn of a known dangerous condition or of another hazardous
recreational activity known to the public entity or employee that is
not reasonably assumed by the participant as inherently a part of the
hazardous recreational activity out of which the damage or injury
arose. 
   (2) 
    (B)  Damage or injury suffered in any case where
permission to participate in the hazardous recreational activity was
granted for a specific fee. For the purpose of this 
paragraph   subparagraph  , a "specific fee" does
not include  a   either of the following: 
    (i)     A fee or consideration charged
for a general purpose such as a general park admission charge, a
vehicle entry or parking fee, or an administrative or group use
application or permit fee, as distinguished from a specific fee
charged for participation in the specific hazardous recreational
activity out of which the damage or injury arose. 
   (3)  
   (ii) A fee or surcharge levied, charged, or collected for SCUBA
diving access to an artificial reef created or placed in cooperation
with the state or any political subdivision thereof, and operated by
a 501(c)(3) nonprofit public benefit corporation. 
    (C)  Injury suffered to the extent proximately caused by
the negligent failure of the public entity or public employee to
properly construct or maintain in good repair any structure,
recreational equipment or machinery, or substantial work of
improvement utilized in the hazardous recreational activity out of
which the damage or injury arose. 
   (4) 
    (D)  Damage or injury suffered in any case where the
public entity or employee recklessly or with gross negligence
promoted the participation in or observance of a hazardous
recreational activity. For purposes of this paragraph, promotional
literature or a public announcement or advertisement  which
  that  merely describes the available facilities
and services on the property does not in itself constitute a reckless
or grossly negligent promotion. 
   (5) 
    (E)  An act of gross negligence by a public entity or a
public employee  which   that  is the
proximate cause of the injury.
    (2)    Nothing in this subdivision creates a
duty of care or basis of liability for personal injury or 
for  damage to personal property.
   (d)  Nothing   Except as provided in
paragraph (4) of subdivision (b), nothing  in this section
 shall limit   limits  the liability of an
independent concessionaire, or any person or organization other than
the public entity, whether or not the person or organization has a
contractual relationship with the public entity to use the public
property, for injuries or damages suffered in any case as a result of
the operation of a hazardous recreational activity on public
property by the concessionaire, person, or organization.