BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 634
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          ASSEMBLY THIRD READING
          AB 634 (Harkey)
          As Amended January 7, 2010
          Majority vote 

           JUDICIARY           9-0                                         
           
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          |Ayes:|Feuer, Tran, Brownley,    |     |                          |
          |     |Evans, Hagman, Jones,     |     |                          |
          |     |Knight, Lieu, Monning     |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |     |                          |     |                          |
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           SUMMARY  :  Adds self-contained underwater breathing 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.  

          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."  

          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  








                                                                  AB 634
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            climbing, skiing, tree climbing, mountain bicycling,  
            waterskiing, and windsurfing.  

          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; 

             b)   When permission to participate in the hazardous  
               recreational activity was granted for a specific fee,  
               except for a fee charged for a general purpose, such as a  
               park admission charge or a vehicle entry or parking fee;  

             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;  

             d)   When the public entity or public employee recklessly or  
               with gross negligence promoted the participation in or  
               observance of the hazardous recreational activity; and,  

             e)   When the public entity or public employee was the  
               proximate cause of the injury through an act of gross  
               negligence. 

           FISCAL EFFECT  :  None

           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 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  








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          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.

          Supporters of the bill note that the list of "hazardous  
          recreational activities" under Government 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.

          The author has recently amended the bill to remove language that  
          would have created an unprecedented exception to the existing  
          "specific fee" exception under Government 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  
          Government Code Section 831.7.  The bill also contains a small  
          number of purely technical cleanup provisions proposed by  
          Legislative Counsel.
              
           
          Analysis Prepared by  :   Drew Liebert and Anthony Lew / JUD. /  
          (916) 319-2334 


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