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 ***********