BILL ANALYSIS
AB 634
Page 1
ASSEMBLY THIRD READING
AB 634 (Harkey)
As Amended January 7, 2010
Majority vote
JUDICIARY 9-0
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|Ayes:|Feuer, Tran, Brownley, | | |
| |Evans, Hagman, Jones, | | |
| |Knight, Lieu, Monning | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Adds self-contained underwater breathing 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.
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."
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
AB 634
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climbing, skiing, tree climbing, mountain bicycling,
waterskiing, and windsurfing.
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;
b) When permission to participate in the hazardous
recreational activity was granted for a specific fee,
except for a fee charged for a general purpose, such as a
park admission charge or a vehicle entry or parking fee;
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;
d) When the public entity or public employee recklessly or
with gross negligence promoted the participation in or
observance of the hazardous recreational activity; and,
e) When the public entity or public employee was the
proximate cause of the injury through an act of gross
negligence.
FISCAL EFFECT : None
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 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
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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.
Supporters of the bill note that the list of "hazardous
recreational activities" under Government 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.
The author has recently amended the bill to remove language that
would have created an unprecedented exception to the existing
"specific fee" exception under Government 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
Government Code Section 831.7. The bill also contains a small
number of purely technical cleanup provisions proposed by
Legislative Counsel.
Analysis Prepared by : Drew Liebert and Anthony Lew / JUD. /
(916) 319-2334
FN: 0003527