BILL ANALYSIS �
AB 1558
Page 1
Date of Hearing: March 20, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1558 (Eng and Hernandez) - As Introduced: January 26, 2012
PROPOSED CONSENT
SUBJECT : Liability: Flood Control and Water Conservation
Facilities
KEY ISSUE : Should the qualified immunity that existing law
grants to public entities engaged in flood control and water
recharge activities be made permanent?
FISCAL EffECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial bill removes a sunset date in an existing
provision of the California Tort Claims Act that, until January
2, 2013, grants qualified immunity to public entities that
operate flood control and water recharge facilities. The
immunity only applies where injuries are sustained by persons
using the facilities for a purpose other than that which the
public entity intended, where the danger is not readily
apparent, where the entity has not posted adequate warning
signs, and where the entity serves a county with more than 9
million residents (i.e. Los Angeles County). In addition, the
immunity is even more limited for injuries to children 16 years
of age or under. By removing the sunset - which has already
been extended twice - this bill would make the qualified
immunity permanent. Existing law also requires the Los Angeles
County Department of Public Works (LACDPW) to keep certain
records and make reports on injuries sustained at its facilities
and any civil actions brought as a result of those injuries.
These record-keeping and reporting requirements were enacted in
conjunction with the sunset date in order to provide information
to the Legislature for purposes of evaluating the consequences
of qualified immunity and deciding whether or not to continue
such immunity. These reports suggest that the flood control and
recharge facilities do not pose a significant public danger and
show that no actions have been brought against LACDPW relating
to injuries caused by its flood control and recharge facilities.
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As such this bill will not eliminate the sunset on the
record-keeping and reporting requirement, which would be allowed
to expire by its own terms. The bill is sponsored by the
LACDPW. There is no known opposition.
SUMMARY : Eliminates a sunset date and thereby extends
indefinitely provisions of existing law that extend qualified
immunity, as specified, to public entities that operate flood
control and water conservation facilities.
EXISTING LAW :
1)Provides that, until January 1, 2013, neither a public entity
that operates flood control and water conservation facilities
nor its employees shall be liable for injuries caused by the
condition or use of unlined flood control channels or adjacent
groundwater recharge spreading grounds if, at the time of the
injury, the person injured was using the property for any
purpose other than that for which the public entity intended
the property to be used, so long as specified conditions,
including the posting of conspicuous warning signs, are met.
Applies only to facilities in counties whose population
exceeds nine million residents. (Government Code Section
831.8(c).)
2)Specifies that the qualified immunity provided above does not
exonerate a public entity or a public employee from liability
for any injury proximately caused by a dangerous condition of
property if all of the following occur:
a) The injured person was not guilty of a criminal offence
in entering or using the property;
b) The condition created a substantial and unreasonable
risk of death or serious bodily harm when property was used
with due care and in a reasonably foreseeable manner.
c) The dangerous character of the condition was not
reasonably apparent, and would not have been anticipated by
a mature, reasonable person using the property with due
care.
d) The public entity or the public employee had actual or
constructive knowledge of the dangerous condition in
sufficient time to have taken protective measures.
(Government Code Section 831.8(d).)
3)Specifies that, notwithstanding the immunity provided in 1)
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above, nothing exonerates a public agency or public employee
from liability for injury proximately caused by a dangerous
condition of public property if the person injured was 16
years of age or under; the dangerous condition created a
substantial and unreasonable risk to children 16 years of age
or younger using the property in a reasonably foreseeable
manner; and the person injured did not discover the dangerous
condition or did not appreciate its dangerous character
because of his or her immaturity. (Government Code Section
831.8(f).)
4)Requires, until January 1, 2013, the County of Los Angeles
County Department of Public Works (LACDPW) to maintain records
of injuries, and the results of any civil actions relating
thereto, sustained in the department's unlined flood control
channels or adjacent groundwater recharge spreading grounds.
Requires further that the department annually file a copy of
these records with the Judicial Council and that the Judicial
Council, in turn, submit a report on these matters to the
Legislature by January 31, 2012. (Government Code Section
831.9.)
COMMENTS : According to the sponsor, the Los Angeles County
Board of Supervisors, this bill is necessary in order to
continue qualified immunity for public entities engaged in flood
control and water conservation activities. Among its many
activities, the Los Angeles County Department of Public Works
(LACDPW) "recharges" (or replenishes) groundwater supplies by
moving water through unlined flood control channels and into
groundwater "spreading grounds" in the San Gabriel Valley. At
the risk of oversimplifying a complex process, flows from the
State Water Project, Colorado River, and local watersheds are
released into spreading grounds, where the water then filters
downward into the aquifers in the San Gabriel Valley Basin.
This naturally filtered groundwater makes a critical
contribution to the water supplies of approximately 64 cities in
Southern California, including the 15 member cities of the San
Gabriel Valley Water Association.
Background : Public water works, which typically involve storing
water in open reservoirs or moving water through open channels,
inevitably create a potential public danger - especially where
members of the public might ignore warning signs or use these
facilities for other than their intended purposes. In order to
balance the need to provide vital public services on the one
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hand, and to provide reasonable protection to the public, on the
other hand, the California Tort Claims Act contains several
provisions that limit the liability of government entities for
injuries caused by dangerous conditions on public property. In
general, these provisions impose liability on government
entities only where there is a substantial danger which is not
apparent to those using the property in a reasonably foreseeable
manner. �See e.g. Government Code Sections 830-840.6; Biscotti
v. Yuba City Unified School District (2007) 158 Cal. App. 4th
554.]
Although irrigation districts and related entities have enjoyed
qualified immunity from liability for many years, it was not
until 1998 that legislation (Chapter 659, Statutes of 1998)
extended immunity to certain flood control and water
conservation activities conducted by the LACDPW. (These
provisions applied to public entities in counties with nine
million or more residents, which effectively only apply to Los
Angeles County.) The immunity granted under the original
legislation - which would be made permanent under this bill - is
subject to many qualifying conditions. For example, immunity
only applies where injuries are sustained by persons using the
facilities for a purpose other than that which the public entity
intended, where the danger is not readily apparent, and where
the entity has not posted adequate warning signs. In addition,
the immunity provisions generally do not exonerate a public
entity and its employees for injuries to children 16 years of
age or under if use of the facility by a person 16 years of age
or younger is reasonably foreseeable and the person injured did
not discover or appreciate the extent of danger due to his or
her immaturity. Existing law provides a similar exemption for
government operators of reservoirs and irrigation districts, but
sets the age at 12 instead of 16. (Government Code Section
831.8(e).)
This original 1998 legislation provided a sunset date of January
1, 2002, and it required LACDPW to maintain records of injuries
incurred and any records relating to civil actions initiated as
a result of those injuries. It further required LACDPW to file
copies of these records annually with the Judicial Council and,
in turn, required to Judicial Council to submit a report to the
Legislature. The purpose of both the sunset and the report was
to assist the Legislature in determining whether to continue or
terminate the qualified immunity. However, AB 92 (Chapter 756,
Statutes of 2001) extended the sunset date for both the immunity
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provisions and the record-keeping and reporting requirements to
January 1, 2007. After the 2007 sunset date had expired and
these provisions had become inoperative by their own terms, AB
1903 (Chapter 633, Statutes of 2008) revived the qualified
immunity and created a new sunset date of January 1, 2013. It
also extended until January 1, 2013, the requirement that the
LACDPW maintain records and file annual reports to the Judicial
Council, and it required the Judicial Council to submit a report
to the Legislature by January 31, 2012. This bill would
eliminate the sunset date on the immunity provision and thereby
make the immunity permanent.
No Need to Continue Reporting Requirements : This bill will not
eliminate the sunset date on the record-keeping and reporting
requirements; thus, those provisions will be repealed by their
own terms as of January 1, 2013. The original requirement that
LACDPW maintain records for use in a final report to the
Legislature was linked to the sunset date. Sunset dates are
typically added to legislation when the Legislature wants to
reevaluate a policy in order to ensure that the policy has not
produced unintended and unwanted consequences. As a general
rule, if unwanted consequences occur, then the provision can be
repealed or allowed to lapse; if they do not occur, then the
sunset should be repealed and the policy extended indefinitely.
Here, the sunset dates have already been extended twice. The
reports produced thus far suggest that these facilitates do not
constitute a significant danger, and it appears that no injuries
were sustained nor claims brought. Although the Judicial
Council did not submit its report to the Legislature by the
required date of January 31, 2012, it did confirm to the
Committee that no reportable incidents had occurred and no
actions had been initiated. In short, the author and sponsor
believe, the purpose for both the sunset date and the reporting
requirements have been served.
ARGUMENTS IN SUPPORT : According to the author and sponsor, this
bill is necessary to continue qualified immunity to Los Angeles
County flood control and groundwater recharging facilities. The
sponsor contends that it is "important that this provision of
law continue as the County has limited alternatives to the use
of current ground water storage facilities and it must use these
facilities as efficiently as possible." The Upper San Gabriel
Municipal Water District (District) supports this bill because
it will "ensure that local water supplies remain sustainable"
without fear of liability from injuries caused by persons who
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ignore warning signs or use facilities in ways that were not
intended. The District notes that Los Angeles County "relies on
the replenishing of underground aquifers to ensure adequate
water supply for �its] growing population" and that this bill
will allow recharge activities to continue "with appropriate
liability protection." The California State Association of
Counties adds that "Los Angeles County has limited alternatives
to the use of the current groundwater recharge facilities and
liability derived from the groundwater replenishment process
threatens to restrict and jeopardize the sustainability of the
local water supply."
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County Board of Supervisors (sponsor)
California State Association of Counties
Upper San Gabriel Municipal Water District
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334