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