BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 874 (Saldana)
As Amended April 21, 2009
Hearing Date: June 29, 2010
Fiscal: No
Urgency: No
BCP:jd
SUBJECT
Recreational Activities: Skateboarding
DESCRIPTION
Existing law provides a qualified immunity to local public
agencies that operate public skateboarding parks, provided that
they meet certain requirements, including requiring persons who
skateboard to wear helmets, elbow pads, and knee pads. This bill
would remove that requirement to wear elbow pads and knee pads.
This bill would also remove the requirement that local public
agencies maintain and file records regarding skateboard injuries
and delete the requirement that the Judicial Council submit a
report to the Legislature on these incidents.
BACKGROUND
Historically, the assumption of risk doctrine prevented
individuals from recovering for injuries caused when they
engaged in hazardous recreational activities on public property.
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 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
(more)
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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, Chapter 573, Statutes of 1997) added
skateboarding under certain conditions to the list of hazardous
recreational activities. SB 994 (Morrow, Chapter 409, Statutes
of 2002) extended the sunset date of that provision to January
1, 2008, and SB 1179 (Chapter 140, Statutes of 2006) further
extended the sunset to January 1, 2012, unless legislation is
enacted to extend or repeal that sunset.
Pursuant to those provisions, skateboarding results in public
entity immunity only when the participant is at least 12, 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 young adults to skateboard, and
encourages the use of proper safety equipment.
This bill would remove the requirement for skateboarders to wear
elbow and knee pads in skateboard parks, thus, leaving only the
requirement to wear helmets.
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 to properly construct or
maintain in good repair any structure, recreational equipment
or machinery, or substantial work of improvement. (Gov. Code
Sec. 831.7.)
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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 Sec. 831.7.)
Existing law prohibits an operator of a skateboard park from
permitting any person to ride a skateboard therein, unless
that person is wearing a helmet, elbow pads, and knee pads.
Facilities owned or operated by a local public agency, that
are designed for recreational skateboard use and unsupervised,
may comply with that requirement by: (1) adopting an ordinance
requiring anyone riding a skateboard at the facility to wear a
helmet, elbow pads, and knee pads; and (2) posting signs that
inform skateboarders that they must wear those items and that
failing to do so will subject them to a citation. (Health &
Saf. Code Sec. 115800.)
Existing law defines skateboarding as a "hazardous
recreational activity" if the person skateboarding is at least
12, 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
& Saf. Code Sec. 115800.)
Existing law repeals the inclusion of skateboarding as a
"hazardous recreational activity" on January 1, 2012.
This bill would remove the requirement for skateboarders to
wear elbow pads and knee pads from all of the above
provisions, thus, requiring skateboarders to only wear a
helmet in these parks.
2. Existing law requires local public agencies to maintain a
record of all known or reported injuries incurred by a
skateboarder in a public skateboard park or facility. That
agency must also maintain a record of all claims, paid and not
paid, including any lawsuits and their results, arising from
those incidents that were filed against the public agency.
(Health & Saf. Code Sec. 115800(d)(4).)
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Existing law requires the above records to be filed with the
Judicial Council, which shall submit a report to the
Legislature on or before March 31, 2011, on the incidences of
injuries incurred, claims asserted, and the results of any
lawsuit filed by persons while skateboarding in public
skateboard parks or facilities. (Health & Saf. Code Sec.
115800(d)(4).)
This bill would repeal these requirements.
COMMENT
1. Stated need for the bill
According to the author:
The bill simply aims to make skateboarders more safe by
allowing them to utilize skate parks without the pad and
helmet requirement so that skateboarding activities are
confined to public skate parks where those activities are
most safe.
2. Removal of safety equipment
Under existing law, skateboarding is considered a hazardous
recreational activity (conferring a qualified immunity on public
entities for injuries sustained in public skateboard parks),
only when: (1) the facility prohibits a person to ride a
skateboard in the park unless they are wearing a helmet, elbow
pads, or knee pads; or (2) the local public agency adopts an
ordinance requiring skateboarders to wear a helmet, elbow pads,
and knee pads, and posts signs providing notice of those
requirements at the public skateboard park. That qualified
immunity only applies when the person skateboarding is 12 years
of age or older, the skateboarding activity that caused the
injury was a stunt, trick, or luge skateboarding, and the park
is on a public property that meets the above requirements
regarding safety equipment.
All of those safety requirements represent the policy choice of
encouraging local governments to construct skateboarding parks,
but also ensuring that in exchange for that immunity, the local
governments implement reasonable safety standards. This bill
would remove two of the three safety requirements - elbow pads
and knee pads - thus, sending the policy message to local
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agencies that the Legislature no longer believes those safety
measures are important for skateboarding.
The proponents of the proposed elimination of those safety
requirements contend that: "Many skaters can't or won't wear
pads so they are prohibited from skating in the safest possible
environment (public skateparks) and forced back into the most
dangerous place to skateboard (our city streets and sidewalks)."
While it is entirely possible that some skateboarders may not
like wearing pads, or believe that they inhibit their ability to
skateboard, committee staff notes that many professional
skateboarders do wear both elbow pads and knee pads when
participating in professional competitions. Although public
skateboard parks may not be on par with the difficulty of
professional parks/half pipes, it appears difficult to contend
that pads pose problems for amateur skateboarders when
professionals actually wear them for some competitions.
Regarding the injuries actually sustained in skateboarding
parks, committee staff notes that a March, 2002 report by the
Judicial Council stated that a total of 80 skateboarding
injuries were reported in the 2001 calendar year from nine
different public agencies. Those injuries ranged from minor
lacerations, broken bones, and dislocated joints, to a slight
concussion. Given that most of those injuries (lacerations,
broken bones, dislocated joints) likely occurred as the result
of either an arm or leg hitting the concrete of the
skateboarding park, it is difficult to see how those
skateboarders did not benefit from the elbow pads and knee pads
that they were required to wear.
While young skateboarders should be encouraged to use public
skateboard parks as opposed to city streets, the simple refusal
to wear safety equipment on the part of some skateboarders
should not act to remove the requirements which do, in fact,
result in many skateboarders wearing that safety equipment. For
those who do follow the rules, these requirements instill in
those young skateboarders that it is actually okay to protect
their knees and elbows from injury. As a result, the Committee
should consider whether it is appropriate to remove safety
equipment requirements simply because some skateboarders do not
want to wear them - if the issue is the cost of those pads, the
sponsor should work within communities to formulate programs
that can provide those pads to low-income individuals.
3. Opposition's concerns and removal of support
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The CSAC Excess Insurance Authority (EIA), representing
approximately 2,000 public entities statewide (93 percent of the
state's counties, 80 percent of its cities, and 8 percent of all
school districts), expresses its uniform opposition to AB 874
due to the financial burden it would place on its members. EIA
maintains that their "[m]embership believes that the passage of
AB 874 would result in reduced protection for users of
skateboard parks, thereby leading to more injuries. An increase
in the rate of injury would undoubtedly lead to an increase in
litigation against our Public Entity Members as well as placing
added strain on our already taxed healthcare system."
The California Association of Joint Powers Authorities (CAJPA),
in opposition, similarly states that while they believe that the
bill is well intentioned, CAJPA "believes that AB 874 will
increase public entity liability by removing the requirement
that skateboard park users wear elbow and knee pads. . . . [the
proposed] changes will significantly increase the likelihood of
injuries due to the reduced protection worn by the
skateboarders. Increased injuries will lead to new litigation
and new liability for public entities that operate skateboard
parks."
Committee staff also notes that the California State Association
of Counties (CSAC), in its May 8, 2009 letter removing their
support, similarly noted that while they initially supported the
measure based upon a belief that it would balance liability
between the public entity and the individual skateboarders, "in
the intervening weeks, a larger group of risk management
officials and county counsel have examined the bill and
identified concerns about the liability implications and
potential costs associated with injuries. Those concerns have
led us to reconsider the measure, and we now feel compelled to
remove our support."
4. Issues regarding citations
Committee staff notes that the support of various individuals
appears to be based upon frustrations with law enforcement
officers issuing citations for violation of ordinances requiring
helmets, elbow pads, and knee pads - one potential step towards
a solution to that problem that does not involve removing the
requirement for pads would be to further examine how these
requirements are being enforced. From a policy standpoint, it
is important that the ordinances be enforced, but, if those
ordinances are being enforced in a way that creates additional
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hostility and tension between skateboarders and law enforcement,
the author and sponsor should examine the issue to see if there
is an alternate resolution to that problem.
Sample descriptions of the problem received by the Committee
include the following statements found in support letters:
"I have grown frustrated by strict law enforcement at
the skatepark, and I have seen officers expelling kids from
the skatepark, issuing citations, and creating an
adversarial relationship. Such enforcement actions result
in less user participation of the public facility, which is
a shame."
"Removing the mandate for full pads will also help
relieve the burden placed on municipalities that feel it
necessary to enforce this law by issuing citations,
confiscating board and forcing park closures."
"We have an annual three day skate contest which is held
at three skateparks in our area. These contests only
started 2 years ago and because of the harassment by the
police force nobody wanted to skate the contests this
year."
5. Removal of requirement for public agencies to maintain
records, and for the Judicial Council to report
Existing law requires local public agencies to maintain a record
of all known or reported injuries incurred by a skateboarder in
a public skateboarding park or facility. That agency must also
maintain a record of all claims, as specified. Beginning in
1999, those records were required to be submitted to the
Judicial Council who must then submit a report to the
Legislature by March 31, 2011. This bill would remove both of
those requirements.
Considering that striking that provision would not only remove
the record keeping requirement for local agencies (a key piece
of information for future evaluations of this immunity and
sunset), but also remove the requirement for the Judicial
Council to submit a report to the Legislature that is due within
the next year, the Committee should consider amending the bill
to reinsert both of those provisions.
6. Suggested amendment to address the above concerns and allow
public skateboarding parks to continue to operate past January
1, 2012
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Given the above concerns regarding the removal of the
requirement for elbow pads and knee pads, and the related issue
of how local public entities are enforcing safety requirements
(a problem not directly addressed by this bill), Committee staff
recommends the following amendment to extend the existing
qualified immunity given to public skateboard parks for another
4 years, to January 1, 2016. That amendment would leave the
existing safety requirements intact, and, as a result, appear to
address the above-discussed concerns. To ensure that full data
is available with regards to injuries in these parks, that
amendment should continue the requirement for local public
agencies to maintain a record of all claims, to file copies of
those records with the Judicial Council, and require the
Judicial Council to submit a report on or before March 31, 2015.
The current qualified immunity for skateboarding acts to
encourage public entities to actually construct and maintain
skateboard parks. If that immunity were to sunset on January 1,
2012, that incentive would be removed and it is unclear whether
public skateboarding parks would continue to operate. If the
following amendment is accepted, the Committee should consider
urging the sponsor and interested parties to continue to work
with Committee staff to explore the issue of how these
ordinances are being enforced.
Suggested amendment:
Strike out entire contents of the bill, and insert:
SECTION 1. Section 115800 of the Health and Safety Code, as
amended by Section 1 of Chapter 140 of the Statutes of 2006,
is amended to read:
115800. (a) No 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.
(b) With respect to any facility, owned or operated by a local
public agency, that is designed and maintained for the purpose
of recreational skateboard use, and that is not supervised on
a regular basis, the requirements of subdivision (a) may be
satisfied by compliance with the following:
(1) Adoption by the local public agency of an ordinance
requiring any person riding a skateboard at the facility to
wear a helmet, elbow pads, and knee pads.
(2) The posting of signs at the facility affording reasonable
notice that any person riding a skateboard in the facility
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must wear a helmet, elbow pads, and knee pads, and that any
person failing to do so will be subject to citation under the
ordinance required by paragraph (1).
(c) "Local public agency" for purposes of this section
includes, but is not limited to, a city, county, or city and
county.
(d) (1) Skateboarding at any facility or park owned or
operated by a public entity as a public skateboard park, as
provided in paragraph (3), shall be deemed a hazardous
recreational activity within the meaning of Section 831.7 of
the Government Code if all of the following conditions are
met:
(A) The person skateboarding is 12 years of age or older.
(B) The skateboarding activity that caused the injury was
stunt, trick, or luge skateboarding.
(C) The skateboard park is on public property that complies
with subdivision (a) or (b).
(2) In addition to the provisions of subdivision (c) of
Section 831.7 of the Government Code, nothing in this section
is intended to limit the liability of a public entity with
respect to any other duty imposed pursuant to existing law,
including the duty to protect against dangerous conditions of
public property pursuant to Chapter 2 (commencing with Section
830) of Part 2 of Division 3.6 of Title 1 of the Government
Code. However, nothing in this section is intended to abrogate
or limit any other legal rights, defenses, or immunities that
may otherwise be available at law.
(3) For public skateboard parks that were constructed on or
before January 1, 1998, this subdivision shall apply to
hazardous recreational activity injuries incurred on or after
January 1, 1998, and before January 1, 2001. For public
skateboard parks that are constructed after January 1, 1998,
this subdivision shall apply to hazardous recreational
activity injuries incurred on or after January 1, 1998, and
before January 1, 2012 2016. For purposes of this subdivision,
any skateboard facility that is a movable facility shall be
deemed constructed on the first date it is initially made
available for use at any location by the local public agency.
(4) The appropriate local public agency shall maintain a
record of all known or reported injuries incurred by a
skateboarder in a public skateboard park or facility. The
local public agency shall also maintain a record of all
claims, paid and not paid, including any lawsuits and their
results, arising from those incidents that were filed against
the public agency. Beginning in 1999, copies of these records
shall be filed annually, no later than January 30 each year,
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with the Judicial Council, which shall submit a report to the
Legislature on or before March 31, 2011 2015, on the
incidences of injuries incurred, claims asserted, and the
results of any lawsuit filed, by persons injured while
skateboarding in public skateboard parks or facilities.
(5) This subdivision shall not apply on or after January 1,
2001, to public skateboard parks that were constructed on or
before January 1, 1998, but shall continue to apply to public
skateboard parks that are constructed after January 1, 1998.
(e) This section shall remain in effect until January 1, 2012
2016, and as of that date is repealed, unless a later enacted
statute, enacted before January 1, 2012 2016, deletes or
extends that date.
SEC. 2. Section 115800 of the Health and Safety Code, as
amended by Section 2 of Chapter 140 of the Statutes of 2006,
is amended to read:
115800. (a) No 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.
(b) With respect to any facility, owned or operated by a local
public agency, that is designed and maintained for the purpose
of recreational skateboard use, and that is not supervised on
a regular basis, the requirements of subdivision (a) may be
satisfied by compliance with the following:
(1) Adoption by the local public agency of an ordinance
requiring any person riding a skateboard at the facility to
wear a helmet, elbow pads, and knee pads.
(2) The posting of signs at the facility affording reasonable
notice that any person riding a skateboard in the facility
must wear a helmet, elbow pads, and knee pads, and that any
person failing to do so will be subject to citation under the
ordinance required by paragraph (1).
(c) "Local public agency" for purposes of this section
includes, but is not limited to, a city, county, or city and
county.
(d) This section shall become operative on January 1, 2012
2016.
Support : Skaters for Public Skateparks, sixteen individuals
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Opposition : CSAC-EIA; California Association of Joint Powers
Authorities; City of Palm Desert
HISTORY
Source : International Association of Skateboard Companies
Related Pending Legislation : AB 634 (Harkey), would add
self-contained underwater breathing apparatus diving to the list
of hazardous recreational activities and, as a result, provides
a qualified immunity for public entities and public employees
from damages for injuries sustained by those divers on public
property. This bill is currently on the Senate Floor.
Prior Legislation :
AB 1296 (Morrow, Chapter 573, Statutes of 1997) See background.
SB 994 (Morrow, Chapter 409, Statutes of 2002) See background.
SB 1179 (Chapter 140, Statutes of 2006) See background.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 76, Noes 0)
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