BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 634
                                                                  Page  1

          Date of Hearing:  January 12, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                    AB 634 (Harkey) - As Amended:  January 7, 2010

           SUBJECT  :   PUBLIC ENTITY IMMUNITY: HAZARDOUS ACTIVITIES: SCUBA

           KEY ISSUE  :  SHOULD SCUBA DIVING BE ADDED TO THE LIST OF  
          HAZARDOUS RECREATIONAL ACTIVITIES FOR WHICH STATE LAW PROVIDES  
          QUALIFIED IMMUNITY FROM LIABILITY TO PUBLIC ENTITIES AND PUBLIC  
          EMPLOYEES FOR INJURIES SUSTAINED BY PARTICIPANTS OF SUCH  
          ACTIVITIES?

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.

                                      SYNOPSIS
          
          This bill simply seeks to add SCUBA diving to the list of  
          hazardous recreational activities for which existing state law  
          provides qualified immunity from liability to public entities  
          and public employees for injuries sustained by participants of  
          such activities.  SCUBA (Self Contained Underwater Breathing  
          Apparatus) diving is a popular offshore recreational activity in  
          coastal California communities, but does pose several inherent  
          dangers because participants must rely on the SCUBA equipment to  
          provide oxygen to breathe while they are underwater, and because  
          of the body's physiological response to surfacing from a  
          significant depth below sea level.  Supporters of the bill note  
          that the list of "hazardous recreational activities" under Gov.  
          Code Section 831.7 already includes activities like animal  
          riding, bicycle racing or jumping, skiing, hang gliding,  
          kayaking, pistol and rifle shooting, rock climbing, surfing, and  
          waterskiing.  They reasonably contend that SCUBA diving, for the  
          reasons noted above, is at least as hazardous as some of these  
          other recreational activities already recognized for being  
          hazardous, and therefore state and local governments should  
          similarly not face liability for risks assumed by people who  
          participate in SCUBA diving.  With the latest author's  
          amendments to the bill, Consumer Attorneys of California have  
          removed their opposition and there is now no known opposition to  
          this bill.
           
          SUMMARY  :  Seeks to add self-contained underwater breathing  








                                                                 AB 634
                                                                  Page  2

          apparatus (SCUBA) diving to the list of hazardous recreational  
          activities for which state law provides qualified immunity from  
          liability to public entities and public employees for injuries  
          sustained by participants of such activities.

           EXISTING LAW  : 

          1)Provides that neither a public entity nor a public employee is  
            liable to any person who participates in a hazardous  
            recreational activity, as defined, for any damage or injury to  
            property or persons arising out of that hazardous recreational  
            activity.  Furthermore, the public entity or employee is  
            similarly not liable to any person who assists the participant  
            and 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.  (Gov. Code Section 831.7(a). Unless stated otherwise,  
            all further statutory references are to this code.)

          2)Defines a "hazardous recreational activity" as "a recreational  
            activity conducted on property of a public entity which  
            creates a substantial (as distinguished from minor, trivial,  
            or insignificant) risk of injury to a participant or  
            spectator."  (Section 831.7(b).)

          3)Lists a number of specific activities that constitute a  
            "hazardous recreational activity," including (among others):   
            water contact activities, diving into water other than from a  
            diving board, animal riding, pistol and rifle shooting, rock  
            climbing, skiing, tree climbing, mountain bicycling,  
            waterskiing, and windsurfing.  (Section 831.7(b)(1)-(3).)

          4)Provides that the liability of public entities and public  
            employees is  not  limited in the following circumstances:  

             a)   When the public entity or public employee failed to  
               guard or warn of a known dangerous condition or of another  
               known hazardous recreational activity that is not  
               reasonably assumed by the participant as inherently a part  
               of the hazardous recreational activity from which the  
               damage or injury arose.  (Section 831.7(c)(1).)

             b)   When permission to participate in the hazardous  
               recreational activity was granted for a specific fee,  








                                                                  AB 634
                                                                  Page  3

               except for a fee charged for a general purpose, such as a  
               park admission charge or a vehicle entry or parking fee.   
               (Section 831.7(c)(2).)

             c)   When the injury was proximately caused by the public  
               entity or public employee's negligent failure to properly  
               construct or maintain in good repair a structure or  
               recreational equipment.  (Section 831.7(c)(3).)

             d)   When the public entity or public employee recklessly or  
               with gross negligence promoted the participation in or  
               observance of the hazardous recreational activity.   
               (Section 831.7(c)(4).)

             e)   When the public entity or public employee was the  
               proximate cause of the injury through an act of gross  
               negligence.  (Section 831.7(c)(5).)

           COMMENTS  :  This bill simply seeks to add SCUBA diving to the  
          list of hazardous recreational activities for which state law  
          provides qualified immunity from liability to public entities  
          and public employees for injuries sustained by participants of  
          such activities.

          SCUBA (Self Contained Underwater Breathing Apparatus) diving is  
          a popular offshore recreational activity in many coastal  
          California communities, but does pose several inherent dangers  
          because participants must rely on the SCUBA equipment to provide  
          oxygen to breathe while they are underwater, and because of the  
          body's physiological response to surfacing from a significant  
          depth below sea level.

          According to the bill's sponsor, California Ships to Reefs,  
          there are a number of inherent dangers associated with SCUBA  
          diving besides drowning or simply running out of air, including  
          decompression illness, nitrogen narcosis, and oxygen toxicity:

               Approximately 1% of divers experience decompression  
               illness (DCI, also known as "the bends"), and a small  
               percentage of those are classified as "undeserved"  
               (meaning) that the diver appeared to do everything  
               right and still experienced a DCI.  All divers are  
               subject to nitrogen narcosis, which is the effect of  
               nitrogen on the brain at depth, and is similar to  
               alcohol intoxication.  As with alcohol, effects range  








                                                                  AB 634
                                                                  Page  4

               from euphoria to impaired judgment and coordination?.  
               A mixed breathing gas known as Nitrox has become  
               popular, in which extra oxygen is added to normal air  
               to lower the percentage of nitrogen.  This results in  
               less risk of DCI, but it also increases the risk of  
               oxygen toxicity.  Oxygen at depth can cause  
               convulsions or unconsciousness, so additional training  
               and caution are required to dive with Nitrox.

          Supporters of the bill note that the list of "hazardous  
          recreational activities" under Gov. Code Section 831.7 already  
          includes activities like animal riding, bicycle racing or  
          jumping, skiing, hang gliding, kayaking, rock climbing, surfing,  
          and waterskiing.  They reasonably contend that SCUBA diving, for  
          the reasons noted above, is at least as hazardous as some of  
          these other hazardous activities, and therefore state and local  
          governments should similarly not face liability for risks  
          assumed by people who participate in SCUBA diving.

           Recent Author's Amendments  :  The author has recently amended the  
          bill to remove language that would have created an unprecedented  
          exception to the existing "specific fee" exception under Gov.  
          Code Section 831.7(c)(2) that allows liability when permission  
          to participate in the hazardous recreational activity was  
          granted for a specific fee for that purpose.  In its current  
          form, the bill's sole substantive provision is to include SCUBA  
          diving in the non-exhaustive list of hazardous recreational  
          activities under Section 831.7.  The bill also contains a small  
          number of purely technical cleanup provisions proposed by  
          Legislative Counsel.
              
           PRIOR LEGISLATION  :  AB 555 (Campbell) of 1983, Ch. 863 of 1983,  
          provided qualified immunity for public entities and public  
          employees against injuries sustained by individuals  
          participating in "hazardous recreational activities," including  
          (but not limited to) water contact activities, diving other than  
          from a diving board, animal riding, skiing, and other hazardous  
          recreational activities specified in a non-exhaustive list.

          AB 700 (Cunneen) of 1995, Ch. 597 of 1995, added mountain  
          bicycling and paragliding to the list of hazardous recreational  
          activities specified by Section 831.7.

           REGISTERED SUPPORT / OPPOSITION  :   









                                                                  AB 634
                                                                  Page  5

           Support 

           California Ships to Reefs, Inc. (sponsor)
          City of Dana Point
          Civil Justice Association of California
          Orange County Board of Supervisors

           Opposition 

           None on file
           
          Analysis Prepared by  :   Drew Liebert and Anthony Lew / JUD. /  
          (916) 319-2334