BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 1146 (Jones)
Version: June 8, 2015
Hearing Date: June 30, 2015
Fiscal: No
Urgency: No
BCP
SUBJECT
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. This bill
would extend that same qualified immunity, subject to the same
restrictions, to public agencies that operate skateboarding
parks with respect to persons who use other wheeled recreational
devices, as defined, in the parks.
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 (Morrow, Chapter 140, Statutes of 2006)
further extended the sunset to January 1, 2012, unless
legislation was enacted to extend or repeal that sunset.
Lastly, SB 264 (Correa, Chapter 232, Statutes of 2011) removed
the sunset date.
Pursuant to those provisions, a public entity has immunity from
liability for skateboarding injuries only when the participant
is at least 12 years of age, 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.
Skateboarding parks, which may be publicly or privately
operated, provide a dedicated location for individuals to
skateboard without worry of trespassing or vehicular hazards,
and, 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.
To accommodate the use of other wheeled devices in public
skateboard parks, this bill, until January 1, 2020, would expand
the existing qualified immunity to also cover the use of other
wheeled recreational devices, as specified, in skateboard parks
operated by a public entity. That qualified immunity would be
subject to the same terms and conditions that currently apply to
the use of skateboards in those parks.
CHANGES TO EXISTING LAW
Existing law shields public entities and public employees from
liability to any person participating in a hazardous
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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
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 of
age, 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
may 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
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Sec. 115800(d)(4).)
Existing law requires copies of the records of claims and
lawsuits to be filed annually, no later than January 30 each
year, with the Assembly Committee on Judiciary and the Senate
Committee on Judiciary. (Health & Saf. Code Sec. 115800(d)(4).)
This bill would expand the above provisions to include other
wheeled recreational devices, and would define those devices as
nonmotorized bicycles, scooters, in-line skates, roller skates,
or wheelchairs.
This bill would provide that, for purposes of injuries that
occur while operating other wheeled recreational devices in a
skateboard facility, the qualified immunity shall apply to any
claim filed on or after January 1, 2016.
This bill would sunset on January 1, 2020.
COMMENT
1. Stated need for the bill
According to the author, "Current law excludes all-wheeled
non-motorized devices other than skateboards from being used in
skate parks. Other devices such as wheelchairs, scooters,
bicycles etc. are excluded from being used in skate parks
because they are not covered under the Health and Safety Code."
The County of San Diego, sponsor, further notes:
Under current State law, potential liability to local
government limits the participation of all-wheeled
nonmotorized devices other than skateboards at local skate
parks. Current law provides immunity from liability when
only skateboards are allowed within the skate park. The San
Diego County Board of Supervisors unanimously acted to seek
a change in state law to extend local governmental immunity
for injuries that occur in local skate parks to include
other all-wheeled non-motorized recreational devices, such
as bicycles, scooters,
in-line skates, and wheelchairs.
As the popularity of skate parks and other wheeled
activities in skate parks continue to rise, this change in
state law would allow local governments to accommodate these
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uses and maintain immunity for injuries. Without such
changes, local governments are forced to make difficult risk
assessments on which activities to allow within skate parks.
Furthermore, allowing these other all-wheeled non-motorized
devices to participate at local skate parks would promote
safety for the riders and protect public and private
property that may otherwise be damaged.
2. Expanding qualified immunity to cover other wheeled
recreational devices
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. Those skateboarding parks seek to provide a safe
environment for skateboarding where skateboarders do not have to
be worried about potentially getting hit by a car, or risk
trespassing to find an appropriate location to practice. As
noted by this Committee's prior analyses of the qualified
immunity provided to local agencies for skateboard parks, the
immunity not only encouraged the opening of public skateboarding
parks, it also encouraged the use of safety equipment by
participants.
As a practical matter, the qualified immunity statute for
skateboard parks acts as a roadmap for local agencies that seek
to open a park - absent listing other types of wheeled vehicles
in the statute, the local government is likely to not allow them
to use the public area. For example, San Diego CityBeat's May
27, 2014, article entitled "No wheelchairs allowed at Lakeside
Park" reported:
"Park is for skateboarding only," reads a big green sign
that's already been defaced by those who disagree with the
rule. "Bicycles, rollerskates, scooters, motorized vehicles
or other wheeled devices are not permitted in the skate
park," it continues.
Thompkins says he heard about the skateboard-only rule on
KUSI-TV and immediately wanted to ride the skate park
despite the risk of being cited.
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"I find it ridiculous," Thompkins says, pointing out the
obvious mixed traffic at the park and the gobs of local kids
on bikes and scooters who seem to agree with him. Thompkins
plans to hold a chairskating-awareness event at the park,
located on the southwestern edge of Lindo Lake County Park,
at 1:30 p.m. Saturday, June 14. The event is part of an
ongoing series he calls "Looking Beyond the Wheels." He's
held about a half-dozen similar events across the region in
hopes of inspiring kids and other folks in wheelchairs to
take up the sport and push their limits. This one will also
advocate for opening public skate parks to wheelchair
athletes.
"I mean, I no longer have the privilege to get on a
skateboard or a bike or a scooter and say, 'OK, I'm going to
do this,'" he says. "The wheelchair is it. And for someone
to tell us we're not allowed in a public skate park is
unjustifiable." (Kinsee Morlan, No Wheelchairs Allowed at
Lakeside Skatepark (May 27, 2014) San Diego CityBeat at
)
This bill seeks to address that issue by extending the existing
qualified immunity for recreational skateboarding to also apply
to "other wheeled recreational devices." This bill would define
those other devices as nonmotorized bicycles, scooters, in-line
skates, roller skates, or wheelchairs. To qualify for immunity,
the public park must, consistent with existing law, require
persons riding those recreational devices to wear a helmet,
elbow pads, and knee pads. That requirement not only reinforces
safe recreational use of the devices, but, it also arguably
reduces the chances of injury in the park. Similar to when the
qualified immunity was first enacted for skateboards, this bill
would also include a sunset date of January 1, 2020, so as to
allow the Legislature to review the impacts of the immunity,
including whether any claims were made against a local agency
for injuries as a result of using other wheeled recreational
devices.
3. Reporting requirement
Under existing law, local public agencies must 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 Senate and
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Assembly Committees on the Judiciary so as to potentially alert
the committees as to any unsafe conditions which may exist in a
local skateboarding park.<1> By way of background, with respect
to skateboarding injuries, this Committee's analysis of SB 264
(Correa, Chapter 232, Statutes of 2011) noted:
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."
. . . 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
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.
-------------------------
<1> Staff notes that prior to the enactment of SB 264 (Correa,
Chapter 22, Statutes of 2011), the Judicial Council was
responsible for compiling information from public agencies with
respect to injuries.
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To ensure that information about any claims or lawsuits against
the public agency relating to the use of other wheeled
recreational devices is annually reported directly to the Senate
and Assembly Judiciary Committees - this bill would expand the
existing annual reporting requirement to also include claims by
persons riding other wheeled devices. From a policy standpoint,
that reporting is essential for review of this statute by this
Committee should proponents seek to extend or remove the sunset
in the future.
4. Application to claims filed on or after January 1, 2016
To clarify the effect of adding "other wheeled recreational
device" to the existing qualified immunity statute, this bill
would provide that the new immunity would apply to any claim
filed on or after January 1, 2016, for injuries occurring while
operating one of the other wheeled recreational devices. As
that language could theoretically apply the qualified immunity
to injuries occurring before 2016 - if the claim for those
injuries was not filed until 2016 - the following amendment
would further clarify that the provisions of the bill apply
prospectively to injuries occurring on or after January 1, 2016
(the effective date of this bill).
Suggested amendment :
On page 4, strike lines 7 through 10, inclusive and insert:
(6) For purposes of injuries that occur while operating one of
the other wheeled recreational devices described in
subdivision (d) in a skateboard facility, this subdivision
shall apply to any claim for injuries occurring on or after
January 1, 2016.
Support : California Park and Recreation Society; California
State Association of Counties; City of Laguna Hills; City of San
Marcos; Friends of the Lakeside SkatePark Committee; Urban
Counties Caucus; two individuals
Opposition : None Known
HISTORY
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Source : County of San Diego
Related Pending Legislation : None Known
Prior Legislation :
SB 264 (Correa, Chapter 232, Statutes of 2011) See Background;
Comment 3.
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.
SB 1179 (Morrow, Chapter 140, Statutes of 2006) See Background.
SB 994 (Morrow, Chapter 409, Statutes of 2002) See Background.
AB 1296 (Morrow, Chapter 573, Statutes of 1997) See Background.
Prior Vote :
Assembly Floor (Ayes 77, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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