BILL ANALYSIS                                                                                                                                                                                                    



                                                          AB 1296  
                                                         Page 1

ASSEMBLY THIRD READING
AB 1296 (Morrow)
As Introduced February 28, 1997 
Majority vote
                                                   
  JUDICIARY            9-4                                             


Ayes: Morrow, Alby, Aroner, Baugh,
      Kaloogian, Keeley, McClintock,
      Ortiz, Pacheco

Nays: Escutia, Floyd, Kuehl,     
      Villaraigosa

  SUMMARY  :  Adds "skateboarding" to the list of "hazardous  
recreational activities" (HRAs) for which public entities and  
their employees enjoy a qualified immunity from liability. 

  EXISTING LAW  : 

1) Provides that public entities and public employees are not  
   liable to any person who participates in an HRA, including any  
   person who assists the participant, or to any spectator who  
   knew or reasonably should have known that the HRA created a  
   substantial risk of injury to himself or herself and was  
   voluntarily in the place of risk. 

2)  Defines an HRA as a recreational activity conducted on the  
property of a public entity which creates a substantial risk of  
injury to a participant or spectator.  Certain activities are  
specifically designated as HRAs.  These include:  a) animal  
riding; b) bicycle racing or jumping; c) mountain bicycling; d)  
off-road motorcycling or four-wheel driving of any kind; e)  
motorized vehicle racing; f) tree climbing; g) surfing; and h)  
diving from places other than a diving board.

3)  Provides that the immunity from liability to persons  
participating in an HRA does not limit liability in a number of  
specified situations, including where the injury is caused by the  
public entity's or employee's negligent failure to properly  
construct or maintain any structure, recreational equipment or  
machinery utilized in the HRA.  

  FISCAL EFFECT  :  None

  COMMENTS  :  The many public entities and skateboard enthusiasts who  
support this bill argue that the risks inherent to skateboarding  
are similar to the risks inherent in the other HRAs for which  
public entities and employees have a qualified immunity from  
liability.  Specifically, they argue that skateboarding poses  
risks similar to those posed by mountain biking, horseback riding,  
surfing and tree climbing.

The Consumer Attorneys of California (CAOC), however, disagrees,  
and argues that skateboarding is qualitatively different than the  







                                                          AB 1296  
                                                         Page 2

vast majority of activities categorized as HRAs, many of which  
involve mechanized equipment or activities of an extraordinary  
nature which carry inherent risks, such as skydiving, hang gliding  
and spelunking. 

CAOC argues that litigation statistics do not support the  
contention that skateboarding is an especially hazardous activity  
which results in a plethora of suits against public entities.   
According to CAOC, a search by Jury Verdicts Research found only  
two cases in California, one of which ended in a defense verdict.   
The other was a plaintiff's verdict where the jury reduced the  
award by 88% due to the plaintiff's comparative negligence. 
 
CAOC also argues that while some forms of advanced "sport"  
skateboarding may carry the type of risks posed by some of the  
HRAs, this bill fails to distinguish between those riskier forms  
and ordinary skateboarding.  To draw an analogy, the current  
statute classifies bicycle racing or jumping (and mountain  
bicycling) as a hazardous recreational activity while ordinary  
recreational bicycle riding is not characterized as an HRA. 

Manufacturers of skateboard equipment and skateboarders support  
this bill because they believe it will encourage public agencies  
to build skateboard parks.  Many public agencies would like to  
build skateboard parks as a means of confining skateboarding  
activities to the park and discouraging or prohibiting  
skateboarding in areas where it can conflict with pedestrian and  
vehicular uses.  

CAOC argues that, under recent developments in case law, local  
agencies should already be protected from liability if they build  
a skateboard park and post adequate warnings about the risks being  
assumed by skating there.  CAOC is referring to the "primary  
assumption of the risk" doctrine enunciated by a plurality opinion  
of the California Supreme Court in  Knight v. Jewett  (1992) 3  
Cal.4th 296. 

Although CAOC opposes an immunity for skateboard parks, it argues  
that it is particularly inappropriate for the bill to apply the  
same rules to skateboarding on well-managed skateboard parks with  
clear warnings as it would to skateboarding in other public places  
where there are not clear warnings about the dangers.  CAOC argues  
this is particularly a problem because so many skateboarders are  
minors who may not be able to appreciate the severity of the risk  
posed by skateboarding in various public places.  


  Analysis prepared by  :  Gordon E. Hart / ajud / (916) 445-4560


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