BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 634 (Harkey)
As Amended January 7, 2010
Hearing Date: June 10, 2010
Fiscal: No
Urgency: No
BCP:jd
SUBJECT
Hazardous Recreational Activities: SCUBA diving
DESCRIPTION
This bill would add self-contained underwater breathing
apparatus (SCUBA) diving to the list of hazardous recreational
activities and, as a result, provide a qualified immunity for
public entities and public employees from damages for injuries
sustained by those divers on public property.
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 individuals
engaged in hazardous recreational activities on public property.
The included activities, such as rock climbing, sky diving, and
sport parachuting, all pose a substantial risk of injury to a
participant or spectator. The list of qualifying "hazardous
recreational activities" was last amended by AB 700 (Cuneen,
Chapter 597, Statutes of 1995) to include mountain biking and
paragliding. Prior legislation also attempted to add
skateboarding to the list of hazardous recreational activities,
but after concerns arose about its inclusion, skateboarding was
added to a separate section that defines it as a hazardous
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recreational activity when occurring in a public skateboard
park, but only if specified safety requirements and age
restrictions are enforced by the public entity.
Similar to the above legislation, this bill seeks to add
self-contained underwater breathing apparatus (SCUBA) diving to
the list of "hazardous recreational activities" in order to
address liability concerns of public entities. Unlike other
previously proposed additions, there is no opposition to this
proposed inclusion.
CHANGES TO EXISTING LAW
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.
(Gov. Code Sec. 831.7.)
Existing law provides that the above provision does not limit
liability that would otherwise exist for, among other things:
(1) failure to warn of a known dangerous condition; (2) damage
or injury suffered in any case where permission to participate
in the activity was granted for a fee, as specified; (3)
negligent failure of the public entity or employee to properly
construct or maintain in good repair any structure, recreational
equipment or machinery, or substantial work of improvement; (4)
reckless or gross negligence promotion of participation in or
observance of a hazardous recreational activity; and (5) gross
negligence that is the proximate case of the injury. (Gov. Code
Sec. 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. Specific codified 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 Sec. 831.7.)
This bill would add "self-contained underwater breathing
apparatus (SCUBA) diving" to the list of specific codified
activities that constitute a "hazardous recreational activity."
COMMENT
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1. Stated need for the bill
According to California Ship to Reefs (CSTR), sponsor:
AB 634 is solely intended to protect state and local
governments from liability associated with SCUBA diving.
SCUBA diving is an inherently dangerous activity,
acknowledged when divers routinely sign waivers upon
boarding dive charter boats. Hazards include out-of-air
emergencies, decompression illness (the bends), nitrogen
narcosis (rapture of the deep) and oxygen toxicity. Such
waivers generally include the state and local government.
Diving on and penetration of structures such as sunken ships
is even more hazardous, requiring special training and
equipment beyond that for normal SCUBA. SCUBA diving
requires training and certification at every level. There
are at least 3 ship-based artificial reefs in California
waters or under State control on which diving and
penetrations are being made.
Unfortunately, there are a small number of divers who will
dive a ship or structure on their own and not be properly
trained, experienced or equipped, who trigger the need for
AB 634. There is direct evidence that divers are accessing
artificial reefs from private boats without signing waivers.
The author additionally notes that the intent of AB 634 is to
protect state and local governments from liability associated
with SCUBA diving in their waters, particularly on ship-based
artificial reefs.
2. Risks associated with SCUBA diving
AB 634 would add SCUBA diving to the codified list of "hazardous
recreational activities," thus conferring a qualified immunity
on public entities and employees for injuries suffered by those
who participate in SCUBA diving. From a practical standpoint,
this qualified immunity would be triggered when a participant
was injured and the State of California or local government
would have otherwise been found to have some liability for the
injury. (Government Code Section 831.7 defines hazardous
recreational activity as, among other things, recreational
activity conducted on property of a public entity.) Although
the bill would apply to SCUBA diving generally, the sponsor and
proponent's main concern appears to be injuries associated with
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diving in artificial reefs that have been created on land owned
by the state and local governments. (See Comment 3.) While
diving in those reefs may pose additional dangers, as discussed
below, SCUBA diving as a general activity does appear to meet
the criteria for inclusion as a "hazardous recreational
activity."
Under existing law, a hazardous recreational activity is defined
as a recreational activity that creates a substantial risk of
injury to a participant or spectator. That definition is
augmented to specifically include various activities, such as
downhill skiing, motorized vehicle racing, spelunking, sports
surfing, white water rafting, and windsurfing. Thus, the main
policy question posed by AB 634 is whether SCUBA diving poses a
significant risk that is comparable to other activities already
codified. If so, the addition of SCUBA to the definition would
confer a qualified immunity on public entities and public
employees for injuries associated with that activity.
The sponsor asserts that SCUBA diving is an inherently dangerous
activity that puts participants at the risk of decompression
illness, nitrogen narcosis, and oxygen toxicity. Those risks
have been confirmed by several studies, including a study that
found recreational diving to be between 39 and 62 times riskier
than driving a car and that concluded that diving should not be
considered a safe activity. (Is Recreational Diving Safe? Ikeda,
T; Ashida, H, 2000.) The Northern California Oceans Foundation,
in support, further asserts that "SCUBA diving is recognized as
an inherently dangerous activity and divers are accustomed to
signing liability waivers for every phase of diving . . . Divers
are [also] taught from their very first training session that
they are ultimately responsible for their own safety."
Given the significant risks associated with SCUBA diving -
ranging from drowning and hypoxia to decompression sickness -
that activity appears at least as risky (if not riskier due to
being in an underwater environment) than existing codified
activities such as kayaking, boating, or surfing. As discussed
in Comment 3, that risk may arguably be significant enough for a
public entity or employee to already limit their SCUBA liability
based upon the "assumption of the risk doctrine" or the current
codified definition of "hazardous recreational activity." The
proposed codification of SCUBA as a "hazardous recreational
activity" serves to remove any ambiguity that may be present
regarding liability for injuries sustained by SCUBA divers on
public property.
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3. Current liability for public entities and public employees
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 those inherent in the sport." (Knight
v. Jewett (1992) 3 Cal.4th 296, 316.) Given that SCUBA diving
in itself is inherently risky, and that there is no way to fully
eliminate the risks associated with being in an underwater
environment while breathing compressed gas - an individual
injured while SCUBA diving may likely be found to have assumed
the risk of diving. Additionally, if going on a commercial dive
boat, individuals going SCUBA diving are likely to have signed a
liability waiver stating that they understand and assume the
risks associated with the activity.
In addition to potential defenses based upon assumption of the
risk, SCUBA diving may arguably already fall under the
definition of "hazardous recreational activity" as that
definition includes any recreational activity conducted on
property of a public entity that creates a substantial risk of
injury to a participant or a spectator. Provided that the
public entity could prove that SCUBA diving posed a substantial
risk of injury, that public entity may already not be liable for
injuries occurring on their "property."
Regarding existing protections from liability, the City of
Monterey, in support, states that "[t]he only opinions on the
issue of liability for divers on artificial reefs on public
lands are those of city attorneys who are in disagreement as to
whether there is or is not exposure on the part of the public
entity on whose property a reef is placed." This bill would
resolve those questions about legal exposure by providing a
clear qualified immunity for public entities and their employees
for SCUBA related injuries.
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4. Construction of artificial reefs
California Ships to Reefs, Inc. (CSTR), sponsor, is a non-profit
public benefit corporation that is seeking to establish a series
of artificial reefs, primarily decommissioned ships, along the
California coast. CSTR asserts that those reefs "can bring [the
sustainable] economic benefits of SCUBA diving and fishing
tourism to California's ports, ravaged by recent fishing
collapses." As an example, CSTR cites the reefing of the HMCS
Yukon off of San Diego in 2000 - that reefing cost $1.2 million
and generates $4.5 million annually in diver related income.
Regarding the process for "reefing" decommissioned ships, CSTR
states:
Ships will be thoroughly cleaned of toxics and "diverized"
before reefing by removal of all wire and overhead items
that might collapse and create an entanglement hazard.
Hatches will be removed or welded open, bulkheads removed to
open up interior spaces. Numerous holes will be cut into
the vessel for ingress and egress. A diver will be able to
see daylight, the way out, from anywhere in the ship. Areas
deemed too unsafe will be closed off and hatches welded shut
or otherwise secured.
As far as future projects, the County of Orange, in support,
states that "[l]ocally there are two potential programs
involving [CSTR] that may utilize the Harbor if space becomes
available as a base of operation and would most likely evolve to
commercial SCUBA diving activity launching from the Harbor's
docks. The first deals with pier pilings currently part of the
Dana Point Harbor (DPH) dock structure. The planned renovation
of the DPH dock system will recycle the pilings in an approved
off shore location to be utilized as an artificial reef to
support marine plant and fish populations in the area. The
second involves reefing a retired Department of Defense ship
along the coastline, serving as a dive destination."
It should be noted that the State Lands Commission (SLC) holds
"sovereign land" in trust for the people of the State of
California, and that the land generally includes submerged lands
along the State's coastline and offshore islands from the mean
high tide line to three nautical miles offshore. Regarding the
need for this bill, CSTR's Web site states that the SLC has "no
problem with CSTR's activities, assuming all permits and
required approvals are obtained, as long as there is no
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additional liability put upon the State." CSTR's Web site
further asserts that:
[i]t will be very much more difficult, if not impossible, to
get the approval of the State Lands Commission for leases
for ship-based artificial reefs without this bill. They have
indicated that they want absolutely no additional real or
apparent exposure of the State to any liability issues.
This is also the reason they want CSTR to own the reefs and
lease the sea bottom from them. CSTR expects that the
jurisdictions for the few sites on granted lands (where a
city, county or harbor district "owns" the sea bottom) will
follow the State's lead.
Support : City of Dana Point; City of Monterey; City of Morro
Bay; County of Orange Board of Supervisors; Civil Justice
Association of California; Diving Unlimited International, Inc.;
Northern California Oceans Foundation; two individuals
Opposition : None Known
HISTORY
Source : California Ships to Reefs, Inc.
Related Pending Legislation : AB 874 (Saldana), would remove the
requirement in current law that city and county owned or
operated skateboard parks require users to wear elbow pads and
knee pads to enhance safety while retaining the requirement that
skateboarders wear safety helmets. This bill is currently in
this Committee.
Prior Legislation : None Known
Prior Vote :
Assembly Judiciary (Ayes 9, Noes 0)
Assembly Floor (Ayes 71, Noes 0)
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