BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 264 (Correa)
As Introduced
Hearing Date: April 26, 2011
Fiscal: No
Urgency: No
BCP:jg
SUBJECT
Recreational Activities: Skateboard Parks
DESCRIPTION
Existing law provides a qualified immunity to local public
agencies that operate public skateboarding parks, provided that
they meet certain requirements, including requiring persons who
skateboard to wear helmets, elbow pads, and knee pads. That
immunity will sunset on January 1, 2012.
This bill would remove that sunset date, thereby extending the
immunity indefinitely.
BACKGROUND
Historically, the assumption of risk doctrine prevented
individuals from recovering for injuries caused when they
engaged in hazardous recreational activities on public property.
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. The included
activities, such as rock climbing, sky diving, and sport
parachuting, all pose a substantial risk of injury to a
participant or spectator. Over the years, other attempts have
been made to expand the list of hazardous recreational
activities. For example, mountain biking, but not ordinary use
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of a bicycle, was added to the list of hazardous recreational
activities.
In 1997, AB 1296 (Morrow, Chapter 573, Statutes of 1997) added
skateboarding under certain conditions to the list of hazardous
recreational activities. SB 994 (Morrow, Chapter 409, Statutes
of 2002) extended the sunset date of that provision to January
1, 2008, and SB 1179 (Chapter 140, Statutes of 2006) further
extended the sunset to January 1, 2012, unless legislation is
enacted to extend or repeal that sunset.
Pursuant to those provisions, skateboarding results in public
entity immunity only when the participant is at least 12 years
old, and performing a trick, stunt, or luge skateboarding on
public property meeting certain requirements. As a result of
this immunity, communities began building skateboarding parks
for the use of their residents. These skateboarding parks
provide a dedicated location for individuals to skateboard
without worry of trespassing or vehicular hazards. Pursuant to
existing law, all of these skateboard parks require use of
helmets, elbow pads, and knee pads. As a further incentive to
public skateboard parks to implement these mandatory safety
guidelines, the limited immunity currently enjoyed by public
entities is conditioned upon requiring skateboarders to wear the
requisite safety equipment. Thus, the current scheme both
provides dedicated locations for young adults to skateboard, and
encourages the use of proper safety equipment.
This bill would permanently extend the limited immunity, and
associated safety requirements, by removing the January 1, 2012
sunset date. If approved by this Committee, this bill will be
sent to the Senate Appropriations Committee.
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.
Public entities and public employees remain liable for injuries
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. (Gov. Code Sec. 831.7.)
Existing law defines "hazardous recreational activity" as a
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recreational activity conducted on the property of a public
entity that creates a substantial risk of injury to a
participant or spectator. Sample 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.)
Existing law prohibits an operator of a skateboard park from
permitting any person to ride a skateboard therein, unless that
person is wearing a helmet, elbow pads, and knee pads.
Facilities owned or operated by a local public agency, that are
designed for recreational skateboard use and unsupervised, may
comply with that requirement by: (1) adopting an ordinance
requiring anyone riding a skateboard at the facility to wear a
helmet, elbow pads, and knee pads; and (2) posting signs that
inform skateboarders that they must wear those items and that
failing to do so will subject them to a citation. (Health &
Saf. Code Sec. 115800.)
Existing law defines skateboarding as a "hazardous recreational
activity" if the person skateboarding is at least 12 years old,
the skateboarding activity causing injury was a stunt, trick, or
luge skateboarding, and the injury occurred on public property
requiring a helmet, elbow pads, and knee pads. Existing law
also mandates that no operator of a skateboard park permit a
person to skateboard within that park, unless that person wears
a helmet, elbow pads, and knee pads. (Health & Saf. Code Sec.
115800.)
Existing law requires local public agencies to maintain a record
of all known or reported injuries incurred by a skateboarder in
a public skateboard park or facility. That agency must also
maintain a record of all claims, paid and not paid, including
any lawsuits and their results, arising from those incidents
that were filed against the public agency. (Health & Saf. Code
Sec. 115800(d)(4).)
Existing law requires the above records to be filed with the
Judicial Council, which shall submit a report to the Legislature
on or before March 31, 2011, on the incidences of injuries
incurred, claims asserted, and the results of any lawsuit filed
by persons while skateboarding in public skateboard parks or
facilities. (Health & Saf. Code Sec. 115800(d)(4).)
Existing law repeals the inclusion of skateboarding as a
"hazardous recreational activity" on January 1, 2012.
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This bill would permanently extend the inclusion of
skateboarding as a hazardous recreational activity by removing
the January 1, 2012 sunset date.
COMMENT
1. Stated need for the bill
According to the author:
Without repeal or extension of the sunset provision contained
in Health and Safety Code Section 115800, public entities will
face increased liability related to skateboard parks and will
no longer have incentive to build and operate these
facilities. In fact, a majority of public entities, including
the City of Garden Grove, could be forced to close existing
facilities because they do not have fiscal resources to staff
and monitor these facilities commensurate with the increased
liability. . . .
SB 264 would enable public entities to maintain their current
skateboard parks with less risk of liability. This may result
in greater recreational opportunities for the citizens of
California through the construction of new skateboard parks
and sport tournament promotion. The enactment of this measure
could also have a positive immediate impact in local
economies.
2. Qualified immunity; no lawsuits reported by Judicial Council
As noted above, the existing skateboarding statute represents a
policy choice to confer a limited immunity in exchange for the
enforcement of important safety requirements. That policy
choice, made effective on January 1, 1998, addressed the
liability concerns of local governments and resulted in the
subsequent opening of numerous public skateboarding parks around
the state. Proponents of those skateboarding parks assert that
the parks provide a safe environment for young adults to skate
where they do not have to worry about potentially getting hit by
a car, or risk trespassing to find an appropriate location to
practice skateboarding. Absent legislation, that qualified
immunity will sunset on January 1, 2012. The author further
notes that if there is no extension or repeal of the sunset, "a
majority of public entities, including the City of Garden Grove,
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could be forced to close existing facilities because they do not
have fiscal resources to staff and monitor these facilities
commensurate with the increased liability."
To ensure that those parks are not forced to close, and to
provide long-term security, this bill would extend the qualified
immunity indefinitely by repealing the January 1, 2012 sunset
date. Similar to other sunsets imposed by the Legislature, the
skateboarding sunset included a report requirement so that the
Legislature would have sufficient information by which to
evaluate the appropriateness of either an extension or removal
of the sunset. In this case, existing law requires public
agencies to maintain a record of all known or reported injuries,
and all claims, lawsuits and their results. Copies of those
records must be filed annually with the Judicial Council, which
is then required to submit a report to the Legislature on the
injuries, claims, and lawsuits reported.
a. Judicial Council reports no claims or lawsuits
The Judicial Council's March 24, 2011 report contains
information received from thirty-four public agencies
regarding injuries sustained in skateboard parks between 2002
and 2010. During that time period, a total of 792 injuries
were reported with facial injuries being the most common type
of injury, followed by injuries to the ankle, head, and arm.
The report stated that "�n]one of the public agencies that
reported these injuries to the Judicial Council mentioned any
claims or lawsuits filed against them as a result of such
injuries."
As discussed above, the present statutory scheme reflects a
compromise amended into AB 1296 (Morrow, 1997) as it left this
Committee. That compromise granted a qualified immunity on
the public entity if: (1) the injured skateboarder was at
least a certain age (now, 12 years or older); (2) the activity
that caused the injury was a stunt, trick, or luge
skateboarding; and (3) skateboarders are required to wear a
helmet, elbow pads, and knee pads. Considering the
potentially risky nature of skateboarding, reports of only 792
injuries across 34 public agencies in an 8-year span arguably
demonstrates successes in the design of the parks, skill of
participants, and in the requirement for those participants to
wear necessary safety equipment.
The report also noted that no "claims or lawsuits had been
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filed against the �public entities] as a result of the
reported injuries." As a result, the qualified immunity
provided by the bill appears to not have actually been applied
to any lawsuits filed against a public agency (unless a public
agency failed to comply with the statute by failing to report
that fact). From a policy standpoint, whenever immunity is
granted to any party, concern always arises that the immunity
could prevent an aggrieved party from bringing suit to seek
redress for their injuries. The existing sunset date and
report were originally included to provide the Legislature
with the opportunity to review the grant of the immunity to
ensure that the immunity had not resulted in any unintended
consequences. The absence of any actions brought as a result
of those injuries arguably indicates that, in fact, the grant
of immunity has not impacted any filed court action. It
should be noted that the report only covers actual claims and
lawsuits, but does not provide any information on actions that
were not filed due to a plaintiff's concern about application
of the immunity provision.
Staff also notes that while the proposed sunset removal may be
appropriate, any future Legislative effort to remove the above
discussed safety requirements would arguably require the
imposition of a new sunset and report to ensure that no
additional injuries (or serious lawsuits) would occur as a
result.
b. Record keeping by local public agencies
In order to ensure that sufficient information was available
to evaluate the sunset date, existing law requires local
public agencies to maintain a record of all known or reported
injuries in a public skateboard park or facility, and any
claims arising from those incidents. Copies of those records
must then be filed annually with the Judicial Council, which
is then required to submit the report described above on or
before March 31, 2011.
As long as public agencies continue to enjoy a qualified
immunity relating to skateboarding, the record keeping
provisions contained in existing law would continue to ensure
that relevant information is maintained on the local level
that would be beneficial to evaluate the safety of those
parks. It may also be helpful for those local public entities
to submit, on an annual basis, information regarding any
claims or lawsuits resulting from those injuries to the Senate
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and Assembly Committees on Judiciary. Staff notes that if the
number of claims or lawsuits continues to be zero, no
submission to the Legislature would be required. On the other
hand, if one of the new skateboarding parks mentioned by the
author in Comment 3 ends up triggering claims or lawsuits
related to injuries, the submission of that information to the
Legislature would alert the appropriate Committees to those
suits and the potential need to revisit the issue of qualified
immunity.
Should the Committee elect to replace the existing requirement
that local public agencies compile and send information to the
Judicial Council with a requirement that those entities,
instead, send information regarding claims and lawsuits to the
Senate and Assembly Committees on Judiciary, the following
amendment is suggested:
Suggested amendment:
On page 3, strike out lines 8 through 19, inclusive, and
insert:
(4) The appropriate local public agency shall maintain a
record of all known or reported injuries incurred by a
skateboarder in a public skateboard park or facility. The
local public agency shall also maintain a record of all
claims, paid and not paid, including any lawsuits and their
results, arising from those incidents that were filed
against the public agency. Beginning in 2013, copies of the
records of claims and lawsuits shall be filed annually, no
later than January 30 each year, with the Senate and
Assembly Committees on Judiciary.
3. Future of skateboarding parks
Staff notes that the continuation of the qualified immunity for
public entities operating skateboarding parks would arguably
allow for the creation of additional public parks that would
serve as safe places for California's young adults. If that
immunity is extended, it is essential to preserve the current
safety equipment requirements in order to ensure that injuries
do not escalate above the reported numbers discussed in the
Comment 2(a). Regarding the state of skateparks in California,
the author notes:
In California there are 254 skateparks listed with another
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100 in the planning stages. Cities are building multiple
parks with five scheduled for Long Beach- there are three
built so far. Los Angeles has 26 skateparks, more in the
planning stages and more than 30 on school grounds. The Los
Angeles area is the leader for both skate spots and plazas,
and the popularity of these sites is increasing. Corporate
sponsors like Nike and DC Shoes have helped build these
plazas. The largest park in California is Lake Cunningham,
in San Jose (67,000 sq. feet) with the world's tallest wall
ride and longest full pipe. California has skateboard
leagues that are flourishing and contest series such as
"CASL" (12 and under) and "SPA" inner city games, and at the
professional level, "Street League", "Maloof Cup" and "X
GAMES".
Support : California Association of Joint Powers Authorities;
California Park & Recreation Society; CSAC Excess Insurance
Authority
Opposition : None Known
HISTORY
Source : City of Garden Grove
Related Pending Legislation : None Known
Prior Legislation :
AB 874 (Saldana, 2010), sought to remove the requirement to wear
elbow pads and knee pads. That bill was referred to this
Committee but never heard.
AB 1296 (Morrow, Chapter 573, Statutes of 1997) See Background.
SB 994 (Morrow, Chapter 409, Statutes of 2002) See Background.
SB 1179 (Chapter 140, Statutes of 2006) See Background.
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