BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 1179 S
Senator Morrow B
As Amended April 26, 2006
Hearing Date: May 9, 2006 1
Government Code 1
BCP:cjt 7
9
SUBJECT
Recreational Activities: Skateboarding
DESCRIPTION
This bill would repeal existing law that provides public
entities with limited immunity for injuries sustained while
skateboarding at public skateboard parks. Public entities'
current limited immunity only applies for injuries
sustained, in public skateboard parks requiring safety
gear, by skateboarders performing a trick, stunt, or luge
who are at least age 14. This bill would replace that
limited immunity with a broad immunity for all
skateboarding activities occurring on public property
regardless of the age of the skateboarder. Additionally,
this bill would repeal existing law requiring skateboard
park operators to require anyone using a skateboard park to
wear a helmet, elbow pads, and knee pads.
BACKGROUND
Historically, the assumption of risk doctrine prevented
individuals from recovering for injuries caused when they
engaged in hazardous recreational activities. 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
(more)
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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 of a bicycle, was added to the
list of hazardous recreational activities.
In 1997, AB 1296 (Morrow) added skateboarding under certain
conditions to the list of hazardous recreational
activities. That provision will sunset on January 1, 2008,
unless legislation is enacted to extend or repeal that
sunset. Skateboarding results in public entity immunity
only when the participant is at least 14, 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 children to skateboard, and
encourages the use of proper safety equipment.
SB 1179 would add skateboarding in and of itself to the
list of hazardous recreational activities and repeal the
previous section requiring skate parks to mandate use of
safety gear.
CHANGES TO EXISTING LAW
1. 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
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to properly construct or maintain in good repair any
structure, recreational equipment or machinery, or
substantial work of improvement. [Gov. Code 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 831.7.]
This bill would add skateboarding to the list of
hazardous recreational activities.
2. Existing law requires skateboard riders and passengers
to wear a properly fitted and fastened bicycle helmet
when riding along a street, bikeway, or any other public
bicycle path or trail. [Vehicle Code Section 21212.]
Existing law defines skateboarding as a "hazardous
recreational activity" if the person skateboarding is at
least 14, 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 & Safety Code
Section 115800.]
This bill would repeal that section.
This bill would state that the decision of a local public
agency to regulate conditions at a public skateboard park
does not alter their immunity from liability to persons
engaging in hazardous recreational activities.
COMMENT
1. Stated need for the bill
The author notes that "numerous local governments have
built skateboarding parks to provide skateboarders
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appropriate venues for plying their skills." Further,
the author states that existing law "provides these local
governments liability protection less than the protection
offered to [hazardous recreational activities] listed in
the Gov[ernment] Code." According to the International
Association of Skateboard Companies (IASC), supporter,
"public entities are left vulnerable by [these]
technicalities . . . and are consequently hesitant to
construct more skateparks."
Citing the mandated requirement that operators of
skateboard parks require individuals to wear helmets,
elbow pads and knee pads, the author contends that
"[t]his one-size-fits-all statewide mandate does not
recognize the wide variety of apparatus-related
challenges found among skateboard parks." IASC adds that
"[o]lder skateboarders are . . . alienated from
skateparks by the broad gear requirements . . . and the
possibility of citation for noncompliance."
The author further states that "according to experts in
the skateboarding field, injury statistics do not support
treating skateboarding as more dangerous than other
high-risk [hazardous recreational activities] . . . none
of which have safety equipment (such as helmets and
pads)." The City of Santa Barbara, supporter, adds that
"[s]kateboarding statistically has fewer injuries than
many other sports, but is one of the only sports with
state mandated safety equipment." SB 1179 removes these
safety requirements and immunizes public entities from
liability for injuries.
2. Reconciliation of skateboarding risks and safety
equipment requirements
SB 1179 would both add skateboarding to the list of
hazardous recreational activities (HRAs), and remove
safety requirements for individuals skateboarding at
skateboard parks. The author and supporters struggle to
reconcile these two contradictory proposals.
A. Risks of skateboarding
Some supporters do tout the dangers of skateboarding,
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while others emphasize its safety. The City of Lake
Forest proclaims that "[c]learly, skateboarding is an
activity that is hazardous regardless of age."
Further elaborating on the danger posed, the
California Association of Joint Powers Authorities
(CAJPA), contends that "participants . . . are well
aware of risks associated with skateboarding. Let's
be realistic: we are talking about a small platform
set on wheels, and 'ridden' at significant speeds on
and around cement surfaces and obstacles." In
contrast, the website for the SkatePark Association
United States of America (SPAUSA), supporter, contains
statistics detailed below which portray skateboarding
as much safer than many other sports.
As recognized in current law, performing tricks,
stunts or luges on a skateboard by an individual of
appropriate age, with the necessary safety gear is a
hazardous recreational activity. It is at these times
when the act of skateboarding poses a substantial risk
of harm to the participant. The existing age and
safety requirements are in place to ensure that the
participant recognizes the risk posed by the activity,
and has some protection against that substantial risk
of injury. As mentioned above, the qualified immunity
for this hazardous recreational activity sunsets on
January 1, 2008.
Ordinary riding of a skateboard, akin to roller-skates
or push scooters, does not appear to pose the same
hazardous risks of other hazardous recreational
activities such as off-road motorcycling or sport
parachuting. In fact the SPAUSA website states that
"[s]kateparks with smooth surfaces and protective gear
have a very low injury rate." That website further
states that skateboarding, with .49% of its
participants injured (27,718 out of 6,200,000), ranked
significantly below ice hockey (3.6%), football
(2.78%), basketball (2.57%), soccer (1.42%) and
baseball (1.26%) in 1969. Similarly, 1999 statistics
by the U.S. Consumer Product Safety Commission found
that skateboarding, with .77% of its participants
injured, ranks below football (1.99%), basketball
(1.52%), soccer (1.00%) and baseball (1.61%) for
percentage of participants injured.
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Compared with ordinary bicycling, which is not
classified as a hazardous recreational activity, the
National SAFE KIDS Campaign (NSKC) reports
significantly fewer injuries to children from
skateboarding-related accidents. "In 2002, nearly
272,800 children ages 5 to 14 were treated in hospital
emergency rooms for bicycle related injuries." During
that same time period, only 60,100 of similarly aged
children were treated for skateboard-related injuries.
Unlike the data provided by SPAUSA, this data does
not include the total number of kids engaged in each
of the activities.
Additionally, Judicial Council's reports to the
Legislature pursuant to Health and Safety Code Section
115800 demonstrate the low level of injuries due to
skateboarding. Judicial Council's March 13, 2002
report found that a total of 80 skateboarding injuries
occurred at skateboarding parks in nine cities during
the 2001 calendar year. Divided between nine cities,
the injury rate in skateboarding parks is less than
one per month. Considering the amount of
skateboarders in each of these cities, it is difficult
to see skateboarding as a sport with a substantial
risk of injury to the participants. Furthermore, none
of these injuries resulted in a lawsuit against the
city. In fact, there are no published California
cases including suits against a city for injuries
caused at a skateboarding park.
DOES NOT ORDINARY SKATEBOARDING FAIL TO RISE TO THE
LEVEL OF OTHER HAZARDOUS RECREATIONAL ACTIVITIES?
INSTEAD OF REMOVING THE LIMITED DEFINITION AS A
HAZARDOUS RECREATIONAL ACTIVITY, SHOULD NOT THIS BILL
EXTEND THE SUNSET PROVISION UNTIL 2012?
As discussed below, most of these supporters want
classification of skateboarding as a hazardous
recreational activity either to promote building of
skateparks, or to remove existing safety equipment
restrictions. For those individuals engaged in
riskier forms of skateboarding, existing case law
concerning assumption of risk already provides
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liability protection.
B. Arguments for the effect of adding skateboarding as
a hazardous recreational activity
The main thrust of the supporters' arguments is not on
the danger of skateboarding, but how public entity
immunity will encourage expansion of skateboarding
parks and on the importance of removing safety gear
requirements.
The City of Santa Barbara states that SB 1179 "would
enable public entities to maintain their current
skateboard parks with less risk of liability and may
result in greater recreational opportunities for the
citizens of California through the construction of new
skateboard parks." Additionally, supporters contend
that skateboarding parks have the incidental effect of
reducing the amount of children who skateboard on city
streets and parking lots. In contrast, the U.S.
Consumer Product Safety Commission warns parents that
"[s]kateboarding in the street can result in
collisions with cars causing serious injury and even
death."
Supporters further argue that mandating the use of
safety equipment in unstaffed skateboard parks is
unnecessary. SPAUSA, supporter, contends that young
kids are being ticketed in these skateboard parks for
lack of the required safety equipment. SPAUSA further
argues that children from poor neighborhoods are
unable to pay these tickets, resulting in bench
warrants for their arrest. As to the necessity of
safety equipment, IASC states that "[a]necdotal
accounts show that many skateboarders feel that pads
and helmets restrict movement and impair balance,
enhancing the possibility for injury."
In contrast, the American Academy of Pediatrics (AAP)
issued a policy statement finding that
"[s]kateboard-related injuries account for an
estimated 50,000 emergency department visits and 1,500
hospitalizations among children and adolescents in the
United States each year." Of those 1,500
hospitalizations, the AAP states that most of the
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injuries were to the head. AAP further states that
"[p]ediatricians should advise parents, teachers, and
others to strongly recommend that all skateboarders
wear a helmet and other protective gear (including
wrist guards, elbow pads, and knee pads) to prevent or
reduce the severity of injuries resulting from falls."
The U.S. Consumer Product Safety Commission adds
that "[p]rotective gear . . . may not fully protect
skateboarders from fractures, but its use is
recommended as such gear . . . can reduce the number
and severity of injuries."
Contrary to those recommendations, this bill would
eliminate the requirement for helmets, elbow pads and
knee pads in skateboard parks. While this may
encourage further use of skateboard parks, this
enjoyment may come at the cost of unnecessary injury
to participants. In recognition of the value of
safety equipment, a single sponsor, the City of
Arcadia suggests "amending the bill to retain the
provision of requiring a local public agency that owns
or operates a skateboard park to prohibit a person
from riding a skateboard in the park unless the person
is wearing protective gear . . ."
SHOULD NOT THE PROVISIONS REQUIRING USE OF A HELMET,
ELBOW PADS AND KNEE PADS AT SKATEPARKS BE RETAINED?
3. Current law regarding assumption of risk
Generally, every individual has a duty to exercise
ordinary care; failure to exercise reasonable care under
the circumstances results in liability. [Parsons v.
Crown Disposal Co. (1997) 15 Cal. 4th 456, 472; Rowland
v. Christian (1968) 69 Cal. 2d 108, 112.] Primary
assumption of the risk limits a defendant's liability
when the inherent risks of a sport cannot be eliminated
without destroying the sport itself. [Record v. Reason
(1999) 73 Cal. App. 4th 472, 480.] These sports include
those "done for enjoyment or thrill, requir[ing] physical
exertion as well as elements of skill, and involv[ing] a
challenge containing a potential risk of injury." [Id.
at 482.] Even when assumption of the risk applies,
"defendants generally do have a duty to use due care not
to increase the risks to a participant over and above
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those inherent in the sport." [Knight v. Jewett (1992) 3
Cal. 4th 296, 316.]
In Calhoon v. Lewis, California's Fourth District Court
of Appeal stated that "[s]kateboarding is a type of
activity covered by the primary assumption of risk
doctrine." [81 Cal. App. 4th 108, 115.] Thus,
defendants cannot be held liable for risks inherent in
the sport of skateboarding. For example, a skateboarder
who enters a neighbors yard, attempts to perform a trick,
loses his balance, hits a planter and impales himself on
a metal pipe cannot hold the neighbor liable unless they
held out their yard to skateboarders. [Id. at 110-18.]
On the other hand, skatepark owners who know that
individuals will be skateboarding in the park may be
liable if their actions increase the risk inherent in the
sport of skateboarding or fail to minimize risks to
skateboarders. [Id. at 117-18.] Thus, current law
already protects both public and private individuals from
suits resulting from injuries as a result of the inherent
risk of skateboarding.
Furthermore, a 1998 Attorney General opinion requested by
the author of this bill found that "skateboarding may be
considered a 'hazardous recreational activity' under the
terms of subdivision (b) of section 831.7 even though it
is not specifically so identified in the statute."
Subdivision (b) of Government Code Section 831.7 states
that a hazardous recreational activity "means a
recreational activity conducted on property of a public
entity which creates a substantial . . . risk of injury
to a participant or a spectator." Thus, depending on the
type of skateboarding conducted, the public entity would
be immune.
For example, merely skateboarding down the sidewalk does
not create a substantial risk of injury to anyone. While
cracks in the sidewalk may pose some danger, it cannot be
maintained that this simple act, akin to rollerskating,
razor scootering, or bike riding, poses a substantial
risk of injury. Once a participant begins performing
tricks, stunts, or more aggressive riding of a
skateboard, such as mountain boarding, their actions
likely pose a substantial risk of injury which qualifies
the activity as a hazardous recreational activity. Thus,
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the effect of SB 1179 would be to extend public entity
immunity to skateboarding that does not pose a
substantial risk of injury to participants or spectators.
DOES NOT BOTH CASE LAW CONCERNING ASSUMPTION OF THE RISK,
AND EXISTING SECTION 831.7(B) SUFFICIENTLY PROTECT PUBLIC
ENTITIES FROM LIABILITY?
4. History behind mandated safety equipment
In 1978, California enacted legislation stating that
"[n]o operator of a skateboard park shall permit any
person to ride a skateboard therein, unless that person
is wearing a helmet, elbow pads, and knee pads." In
1997, AB 1296 (Morrow) used that requirement as a
foundation for public entity immunity for injuries
occurring in publicly operated skateboard parks. The
original version of AB 1296, like SB 1179, proposed an
addition of skateboarding to the list of hazardous
recreational activities. AB 1296 was amended in this
committee to instead limit the categorization of
skateboarding as a hazardous recreational activity to the
certain circumstances detailed above. According to the
Consumer Attorneys of California (CAOC), the final
version of AB 1296 "represents a negotiated agreement
between CAOC, Senator Morrow and other parties."
Supporters, namely several skateboard advocates, contend
that mandated safety equipment constitutes an unwanted
government intrusion into skateboarding. Those
supporters further contend that skateboarding should be
left to "self regulate" the type of safety gear that is
appropriate. Their concerns include law enforcement
handing out tickets to young children for failure to wear
proper safety gear, and that requiring safety gear in
parks forces kids to skate on local streets.
From the public entities' perspective, enforcement of
current safety requirements is essential to preserving
their limited liability. If law enforcement does not
enforce the requirement for skateboarders to wear
helmets, elbow pads and knee pads, the public entity
essentially waives its current limited immunity for
injuries occurring in those skateboard parks. As
discussed above, medical professionals repeatedly
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recommend that these children wear helmets, elbow pads
and knee pads. Absent compelling evidence otherwise, the
safety equipment requirement should not be removed merely
because kids don't want to wear a helmet, elbow pads or
knee pads.
The same argument forwarded by skateboarding advocates
can be made for motorcycle riders. Like skateboarders,
many motorcycle riders firmly believe that the state
should not require them to wear helmets. Many of these
riders, by law at least 16 years old, also argue that
they understand the risks of their sport and do not want
to wear safety equipment. From a public policy
standpoint, the law cannot choose to exempt one group of
individuals from safety requirements merely because they
do not want to comply. Moreover, the National SAFE KIDS
Campaign states that "[s]ix out of every ten
skateboarding injuries occur among children ages 14 and
under." Unlike their older counterparts, these younger
children likely lack the capacity to fully understand the
risks associated with skateboarding and properly protect
themselves with appropriate safety gear.
5. Public entity liability under SB 1179 for failing to
require helmets, elbow pads and knee pads
SB 1179 further provides that failure of a public entity
to regulate conditions of use at a public skateboard park
does not alter their immunity from liability to persons
engaging in hazardous recreational activities.
Essentially, this provision would allow cities to remove
safety regulations without losing their immunity for
injuries due to skateboarding.
Committee staff believes the proposal is poor public
policy. This allows cities to build skateboarding parks,
and yet ignore safety measures that protect both the
participant and the public purse. Injured skateboarders
without insurance will be treated in emergency rooms at
public cost and if the injuries are very severe, could be
public charges for life.
As discussed above, safety regulations are endorsed by
various medical entities to protect the safety of young
children. SB 1179 would repeal provisions requiring
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safety gear, and provisions conditioning immunity on the
skateboarder being age 14. Public entities would be free
to allow young children into skateboarding parks without
the benefit of any safety gear. Accordingly, SB 1179
allows cities to leave inexperienced young children to
decide for themselves whether they should wear safety
equipment, and escape liability for injuries resulting
from that determination. It is these children under age
14 that account for six out of ten skateboarding injuries
that are treated in hospital emergency rooms.
Support: Civil Justice Association of California; City
of Lake Forest; International Association of
Skateboard Companies (IASC); California State
Association of Counties (CSAC); City of Santa
Barbara; League of California Cities; California
Association of Joint Powers Authorities (CAJPA);
City of Arcadia; Mayor of the City of Concord; City
of Moreno Valley; Tony Hawk Foundation; SkatePark
Association United States of America (SPAUSA)
Opposition: Consumer Attorneys of California; City of Palm
Desert
HISTORY
Source: Author
Related Pending Legislation: AB 2696 (Huff), would add
nonmotorized or
electric scooters to the
list of hazardous
recreational activities
and lower the age element
for skateboard immunity
from 14 to 10 years old.
(This bill is in the
Assembly Judiciary Committee.)
SB 1407 (Margett), would
add scootering on a push
scooter to the list of
hazardous recreational
activities. (This bill
is currently in the Senate
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Judiciary Committee.)
Prior Legislation: AB 1296 (Morrow), Chapter 573, Statutes
of 1997, provided that skateboarding at a
public skateboard park is a hazardous
recreational activity if the person
skateboarding is 14 years of age or older, the
skateboarding activity was stunt, trick, or
luge skateboarding, and the skateboard park is
on public property.
SB 994 (Morrow), Chapter 409, Statutes of
2002, extended the sunset provision
established by AB 1296 (Morrow).
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