BILL ANALYSIS                                                                                                                                                                                                    






                 SENATE JUDICIARY COMMITTEE
                  John L. Burton, Chairman
                  1997-98 Regular Session


AB 1296                                           A
Assemblymember Morrow                             B
As Introduced
Hearing Date:  July 15, 1997                      1
Government Code                                        2
GWW:lgh                                                9
                                                       6
                           SUBJECT
                               
  Public Entity Hazardous Recreational Activity Immunity:   
                       Skateboarding

                         DESCRIPTION  

AB 1296 would add "skateboarding" to the list of "hazardous  
recreational activities" for which a public entity is  
immune from liability when a person engaged in that  
recreational activity on public property is injured.   

                          BACKGROUND 

Under the Tort Claims Act, a public entity may be held  
liable for a dangerous condition of public property when  
the following essential elements are proven:
(a)  The property was in a dangerous condition at the time  
of the injury;
(b)  The plaintiffos injury was proximately caused by the  
dangerous condition;
(c)  The injury that occurred was reasonably foreseeable as  
a result of the dangerous condition; and,
(d)  The public entity either had actual or constructive  
notice of the condition a sufficient time before the injury  
to take reasonable measures to prevent the injury,  or the  
condition was created by a public employeeos negligent or  
wrongful act or omission.  (Government Code Section 835.)

The Act also provides that the happening of the accident  
causing the plaintiffos injury ois not in and of itself  
evidence that public property was in a dangerous  
condition."  (Government Code Section 830.5(a)).










Notwithstanding the above, a qualified immunity is  
conferred upon public entities for injuries incurred by  
persons participating in a ohazardous recreational  
activityo on public property which "creates a substantial  
(as distinguished from a minor, trivial, or insignificant)  
risk of injury. "   Such activities include various water  
activities including diving and boating, animal riding,  
archery, bicycle racing or jumping, cross-country and  
downhill skiing, mountain bicycling, hang gliding,  
kayaking, motorized vehicle racing or off-road  
motorcycling, orienteering, pistol and rifle shooting, rock  
climbing, surfing, trampolining, tree climbing, tree rope  
swinging, water-skiing, whitewater rafting, and wind  
surfing.  "Mountain bicycling" does not include riding a  
bicycle on paved pathways, roadways, or sidewalks.
 
The immunity does not apply under the following  
circumstances: 

1.The public entity fails to warn of a "known dangerous  
  condition" that is not reasonable assumed by the  
  participant as inherently a part of the hazardous  
  recreational activity.
2.The injury arises out of an activity for which a "fee"  
  was charged.  The term "fee" does not include "general  
  purpose" charges such as park fees, parking fees, or  
  permit fees. 
3.The injury was caused by the public entity's failure to  
  "properly construct or maintain" any structure,  
  equipment, or machinery utilized in the activity. 
4.The injury was caused by the public entity's reckless or  
  grossly negligent promotion of the activity. 
5.The injury was caused by the gross negligence of the  
  public entity. 

                   CHANGES TO EXISTING LAW
  
  Existing law  , as set forth in Government Code Section  
831.7, provides that no public entity or public employee is  
liable to any person (and any assistant of the participant  
or spectator) who "participates in a hazardous recreational  
activity" for any personal injury or property damage  
arising out of that hazardous recreational activity. 
 
  This bill  would add  "skateboarding" to the list of  
"hazardous recreational activity" in Section 831.7 for  









which the public entity enjoys a qualified immunity from  
liability.  

                           COMMENT
  
1.  Should skateboarding be deemed to be a "hazardous  
  recreational activity," so that a public entity is not  
  liable for skateboarding injuries on its property, except  
  as specified? 
   
   The California Association of Joint Powers Authorities  
  (CAJPA), sponsor of AB 1296, asserts that skateboarding  
  is an increasingly popular activity which takes place  
  primarily on public property such as state and city owned  
  facilities, streets, sidewalks, and on school grounds as  
  well as public parks.   The proponent asserts that  
  skateboarding is a relatively uncontrollable activity and  
  the pursuit of this activity on public property brings  
  with it public liability.  The City of Moreno Valley, in  
  support of AB 1296, states that it recently spent  
  approximately $31,000 to defend and settle a case  
  involving an injured skateboarder.  (The specific details  
  of the case were not provided.)
 
  CAJPA points out that most public entities self-insure  
  for much of their potential liability.  Activities such  
  as skateboarding generally are not covered by commercial  
  insurance in any event because of the recognized dangers  
  of  skateboarding. 

  Proponents, numerous cities and park districts, assert  
  that deeming skateboarding to be a "hazardous  
  recreational activity" would relieve districts, local  
  governments and the state from liability for a relatively  
  uncontrollable activity.  In addition, it might encourage  
  the public entity to build "skateboard" parks or  
  facilities where the participants understand the risks  
  and conditions, and taxpayer funds are not in jeopardy  
  for extreme liabilities over which there is no control.   
  Proponents contend that passage of this bill would  
  encourage cities and recreation and park districts to  
  construct new skateboard parks if the threat of liability  
  due to the nature of the activity were reduced. 

  SHOULD THE BILL BE NARROWED TO APPLY THE IMMUNITY TO  
  SKATEBOARDING IN THESE SPECIALLY CONSTRUCTED "SKATEBOARD  









  PARKS" WHERE THE PARTICIPANTS KNOW OF AND UNDERSTAND THAT  
  THEY ARE ASSUMING THE ORDINARY RISK OF INJURY, INSTEAD OF  
  APPLYING TO ALL PUBLIC STREETS AND PROPERTY WHERE HIDDEN  
  RISKS OF INJURY ARE NOT READILY KNOWN OR APPRECIATED? 

2.  Opposition from Consumer Attorneys 

  The Consumer Attorneys of California (CAOC) opposes AB  
  1296 for the following asserted reasons:
 
   a)    Skateboarding is different from the current  
     hazardous recreational activities  

        Skateboarding is qualitatively different than the  
     vast majority of activities immunized by Section  
     831.7, many of which involve mechanized equipment or  
     activities of an extraordinary nature which carry  
     inherent risks as skydiving, hang gliding, and  
     spelunking.   Ordinary skateboarding does not carry  
     such inherent risks.

   b)    Bill does not distinguish between ordinary  
     skateboarding and riskier oacrobatic skateboardingo  

        While forms of advanced "sport" skateboarding may  
     carry some inherent risks, as evidenced by skaters  
     participating in the sport in the oX-games,o this bill  
     fails to distinguish between those riskier forms and  
     ordinary skateboarding by young kids.  To draw an  
     analogy, the current statute classifies bicycle racing  
     or jumping as a hazardous recreational activity while  
     ordinary bike riding is not.  
        
        SHOULD SOME DISTINCTION BE DRAWN BETWEEN "SPORT" OR  
     oACROBATICo SKATEBOARDING AND "ORDINARY"  
     SKATEBOARDING?
    
   c)    Proposed immunity will most likely affect minors

        Ordinary skateboarding is predominantly an activity  
     enjoyed by minors who simply do not appreciate the  
     risks inherent in skateboarding on public streets and  
     may not recognize dangers posed by a dangerous  
     condition of public property. 

        SHOULD A DISTINCTION BE DRAWN BETWEEN YOUNG MINORS  









     AND ADULTS?

   d)   No threat of frivolous litigation because of  
     disincentives for lawyers to file frivolous claims  

        Opponents also assert that there is no compelling  
     evidence of claims or lawsuits brought against public  
     entities because of skateboarding injuries.  According  
     to CAOC, a search of 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.  

        Thus, CAOC contends, the doctrines of assumption of  
     risk and comparative negligence, as well as the  
     sanctions for meritless lawsuits, and the business  
     economics of bringing a personal injury case on a  
     contingency basis will weed out any frivolous claims.   


        Proponents respond that the threat of potential  
     lawsuits is scaring many cities into prohibiting a  
     very popular form of recreational activity.   While a  
     city may prevail in the lawsuit, the costs of a  
     successful defense can run into the tens of thousands  
     of dollars.   In the absence of some protective  
     measures to shield public budgets from potential  
     lawsuit and liability, proponents report that some  
     public entities have no choice but to prohibit  
     skateboarding on public streets and property.   The  
     City of Carlsbad took that action shortly after  
     failing to win passage of AB 533 in 1993, an identical  
     measure to limit a public entity's liability for  
     skateboarding injuries.




   e)    CAOC believes immunity should be limited to adults  
     in skateboard parks
        
        CAOC contends that AB 1296 adopts the wrong  
     approach and point to examples such as the City of  
     Davis which built a skateboard park to  address the  
     problem without broadly resorting to restricting  









     people's legal rights.  CAOC contends that any  
     immunity, if passed, should be limited to injuries in  
     skateboard parks and limited to adult skateboarders.  

        (It should be noted, however, that the City of  
     Davis requires those who use its skateboard facilities  
     to sign an agreement which details the dangers.  If  
     the user is under 18, the parent or legal guardian  
     must sign.)
             
3.  Discussion of possible amendments -- nothing firm

   Proponents have discussed the possibility of amending the  
  bill, but need to check with the author, to narrow its  
  provisions to osport skateboardingo in designated  
  skateboard parks.  However, they do not want to restrict  
  the immunity only to adults and believe that the immunity  
  should also apply to minors who use the park when the  
  minor and the parent or legal guardian has signed a legal  
  waiver of liability.  

  CAOC objects to extension of the immunity to minors,  
  pointing out that these parks will likely be  
  unsupervised, which increases the risks of injuries and  
  the possibilities of collisions between older, bigger  
  skateboarders and younger, smaller skateboarders using  
  the same facilities.  CAOC asserts that waivers do not  
  necessarily inform the user/signator of the full risks  
  being assumed, and that as a matter of public policy  
  should be disfavored as a means of avoiding liability.   
  In addition, CAOC asserts that any such immunity must  
  clearly retain the public entity's duty to maintain the  
  skateboard park in a safe manner.

4.    Related pending legislation

   AB 915 (Baugh) would add "in-line skating" to the list of  
  "hazardous recreational activities" for which a public  
  entity is immune from liability when a person engaged in  
  that recreational activity on public property is injured.  
    
     

Support:  Assn. for California Tort Reform; Assn. of  
          California Water Agencies; CA Business Properties  
          Assn.; CA Joint Powers Insurance Authority;  CA  









          Park and Recreation Society; CA State Association  
          of Counties;  Cities of Agoura Hills, Apple  
          Valley, Berkeley, Camarillo, Carlsbad, Cerritos,  
          Chino Hills, Chula Vista, Claremont, Corona,  
          Coronado, Covina, Culver City, Dana Point,  
          Dinuba, Downey, El Cajon, Fullerton, Glendale,  
          Glendora,  Hayward, Huntington Beach, Imperial  
          Beach, La Mirada, Laguna Hills, Lodi, Loma Linda,  
          Los Alamitos, Millbrae, Modesto, Moreno Valley,  
          Mountain View,  Novato, Orange, Oroville,  
          Palmdale, Palo Alto, Pleasanton, Poway, Rancho  
          Mirage, Rio Vista, Rohnert Park, Roseville, San  
          Luis Obispo, Santa Ana, Santa Barbara, Santa  
          Cruz, Santa Fe Springs; Santa Rosa, Santee,  
          Sonoma, South Lake Tahoe, St. Helena, Taft,  
          Temecula, Torrance, Tracy, Ukiah, Visalia, Walnut  
          Creek, Willits, and Windsor; Conejo Recreation &  
          Park District; East Bay Municipal Utility  
          District; Glenn County Board of Supervisors;  
          Glenn County Joint Powers Authority; High Speed  
          Productions, Inc.; League of California Cities;  
          Marin County; North Bay Schools Insurance  
          Authority; Northcountry Clinic (Arcata); Pleasant  
          Valley Recreation and Park District; RJM Design  
          Group, Inc.; Redwood Empire Schools' Insurance  
          Group; Sunrise Recreation and Park District;  
          Thousand Oaks/Conejo Valley Chamber of Commerce;  
          and 759 individuals.
 
Opposition:    Consumer Attorneys of California

                           HISTORY

  Source:   California Association of Joint Powers  
Authorities

Related Pending Legislation:   AB 915 (Baugh) - also  
scheduled for July 15                                        
 hearing
          
Prior Legislation:   AB 2357 (1996) - Held in Senate  
                    Judiciary Committee
                    AB 533 (1993) - Held in Assembly  
Judiciary Committee
     
Assembly Floor Vote:   Ayes 58, Noes 9










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