BILL ANALYSIS
AB 634
Page 1
Date of Hearing: January 12, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 634 (Harkey) - As Amended: January 7, 2010
SUBJECT : PUBLIC ENTITY IMMUNITY: HAZARDOUS ACTIVITIES: SCUBA
KEY ISSUE : SHOULD SCUBA DIVING BE ADDED TO THE LIST OF
HAZARDOUS RECREATIONAL ACTIVITIES FOR WHICH STATE LAW PROVIDES
QUALIFIED IMMUNITY FROM LIABILITY TO PUBLIC ENTITIES AND PUBLIC
EMPLOYEES FOR INJURIES SUSTAINED BY PARTICIPANTS OF SUCH
ACTIVITIES?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill simply seeks to add SCUBA diving to the list of
hazardous recreational activities for which existing state law
provides qualified immunity from liability to public entities
and public employees for injuries sustained by participants of
such activities. SCUBA (Self Contained Underwater Breathing
Apparatus) diving is a popular offshore recreational activity in
coastal California communities, but does pose several inherent
dangers because participants must rely on the SCUBA equipment to
provide oxygen to breathe while they are underwater, and because
of the body's physiological response to surfacing from a
significant depth below sea level. Supporters of the bill note
that the list of "hazardous recreational activities" under Gov.
Code Section 831.7 already includes activities like animal
riding, bicycle racing or jumping, skiing, hang gliding,
kayaking, pistol and rifle shooting, rock climbing, surfing, and
waterskiing. They reasonably contend that SCUBA diving, for the
reasons noted above, is at least as hazardous as some of these
other recreational activities already recognized for being
hazardous, and therefore state and local governments should
similarly not face liability for risks assumed by people who
participate in SCUBA diving. With the latest author's
amendments to the bill, Consumer Attorneys of California have
removed their opposition and there is now no known opposition to
this bill.
SUMMARY : Seeks to add self-contained underwater breathing
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apparatus (SCUBA) diving to the list of hazardous recreational
activities for which state law provides qualified immunity from
liability to public entities and public employees for injuries
sustained by participants of such activities.
EXISTING LAW :
1)Provides that neither a public entity nor a public employee is
liable to any person who participates in a hazardous
recreational activity, as defined, for any damage or injury to
property or persons arising out of that hazardous recreational
activity. Furthermore, the public entity or employee is
similarly not liable to any person who assists the participant
and to any spectator who knew or reasonably should have known
that the hazardous recreational activity created a substantial
risk of injury to himself or herself and was voluntarily in
the place of risk, or having the ability to do so, failed to
leave. (Gov. Code Section 831.7(a). Unless stated otherwise,
all further statutory references are to this code.)
2)Defines a "hazardous recreational activity" as "a recreational
activity conducted on property of a public entity which
creates a substantial (as distinguished from minor, trivial,
or insignificant) risk of injury to a participant or
spectator." (Section 831.7(b).)
3)Lists a number of specific activities that constitute a
"hazardous recreational activity," including (among others):
water contact activities, diving into water other than from a
diving board, animal riding, pistol and rifle shooting, rock
climbing, skiing, tree climbing, mountain bicycling,
waterskiing, and windsurfing. (Section 831.7(b)(1)-(3).)
4)Provides that the liability of public entities and public
employees is not limited in the following circumstances:
a) When the public entity or public employee failed to
guard or warn of a known dangerous condition or of another
known hazardous recreational activity that is not
reasonably assumed by the participant as inherently a part
of the hazardous recreational activity from which the
damage or injury arose. (Section 831.7(c)(1).)
b) When permission to participate in the hazardous
recreational activity was granted for a specific fee,
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except for a fee charged for a general purpose, such as a
park admission charge or a vehicle entry or parking fee.
(Section 831.7(c)(2).)
c) When the injury was proximately caused by the public
entity or public employee's negligent failure to properly
construct or maintain in good repair a structure or
recreational equipment. (Section 831.7(c)(3).)
d) When the public entity or public employee recklessly or
with gross negligence promoted the participation in or
observance of the hazardous recreational activity.
(Section 831.7(c)(4).)
e) When the public entity or public employee was the
proximate cause of the injury through an act of gross
negligence. (Section 831.7(c)(5).)
COMMENTS : This bill simply seeks to add SCUBA diving to the
list of hazardous recreational activities for which state law
provides qualified immunity from liability to public entities
and public employees for injuries sustained by participants of
such activities.
SCUBA (Self Contained Underwater Breathing Apparatus) diving is
a popular offshore recreational activity in many coastal
California communities, but does pose several inherent dangers
because participants must rely on the SCUBA equipment to provide
oxygen to breathe while they are underwater, and because of the
body's physiological response to surfacing from a significant
depth below sea level.
According to the bill's sponsor, California Ships to Reefs,
there are a number of inherent dangers associated with SCUBA
diving besides drowning or simply running out of air, including
decompression illness, nitrogen narcosis, and oxygen toxicity:
Approximately 1% of divers experience decompression
illness (DCI, also known as "the bends"), and a small
percentage of those are classified as "undeserved"
(meaning) that the diver appeared to do everything
right and still experienced a DCI. All divers are
subject to nitrogen narcosis, which is the effect of
nitrogen on the brain at depth, and is similar to
alcohol intoxication. As with alcohol, effects range
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from euphoria to impaired judgment and coordination?.
A mixed breathing gas known as Nitrox has become
popular, in which extra oxygen is added to normal air
to lower the percentage of nitrogen. This results in
less risk of DCI, but it also increases the risk of
oxygen toxicity. Oxygen at depth can cause
convulsions or unconsciousness, so additional training
and caution are required to dive with Nitrox.
Supporters of the bill note that the list of "hazardous
recreational activities" under Gov. Code Section 831.7 already
includes activities like animal riding, bicycle racing or
jumping, skiing, hang gliding, kayaking, rock climbing, surfing,
and waterskiing. They reasonably contend that SCUBA diving, for
the reasons noted above, is at least as hazardous as some of
these other hazardous activities, and therefore state and local
governments should similarly not face liability for risks
assumed by people who participate in SCUBA diving.
Recent Author's Amendments : The author has recently amended the
bill to remove language that would have created an unprecedented
exception to the existing "specific fee" exception under Gov.
Code Section 831.7(c)(2) that allows liability when permission
to participate in the hazardous recreational activity was
granted for a specific fee for that purpose. In its current
form, the bill's sole substantive provision is to include SCUBA
diving in the non-exhaustive list of hazardous recreational
activities under Section 831.7. The bill also contains a small
number of purely technical cleanup provisions proposed by
Legislative Counsel.
PRIOR LEGISLATION : AB 555 (Campbell) of 1983, Ch. 863 of 1983,
provided qualified immunity for public entities and public
employees against injuries sustained by individuals
participating in "hazardous recreational activities," including
(but not limited to) water contact activities, diving other than
from a diving board, animal riding, skiing, and other hazardous
recreational activities specified in a non-exhaustive list.
AB 700 (Cunneen) of 1995, Ch. 597 of 1995, added mountain
bicycling and paragliding to the list of hazardous recreational
activities specified by Section 831.7.
REGISTERED SUPPORT / OPPOSITION :
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Support
California Ships to Reefs, Inc. (sponsor)
City of Dana Point
Civil Justice Association of California
Orange County Board of Supervisors
Opposition
None on file
Analysis Prepared by : Drew Liebert and Anthony Lew / JUD. /
(916) 319-2334