BILL ANALYSIS
AB 1296
Page 1
Date of Hearing: May 7, 1997
ASSEMBLY COMMITTEE ON JUDICIARY
Martha Escutia, Chairwoman
AB 1296 (Morrow) - As Introduced: February 28,1997
SUBJECT : GOVERNMENT TORT LIABILITY: SKATEBOARDING
KEY ISSUE : SHOULD SKATEBOARDING BE ADDED TO THE LIST OF
"HAZARDOUS RECREATIONAL ACTIVITIES" FOR WHICH PUBLIC ENTITIES AND
THEIR EMPLOYEES ENJOY A QUALIFIED IMMUNITY FROM LIABILITY?
SUMMARY : This bill would add "skateboarding" to the list of
"hazardous recreational activities" (hereinafter referred to as
"HRAs") for which public entities and their employees enjoy a
qualified immunity from liability.
EXISTING LAW :
1) Provides that public entities and public employees are not
liable to any person who participates in an HRA, including any
person who assists the participant, or to any spectator who
knew or reasonably should have known that the HRA created a
substantial risk of injury to himself or herself and was
voluntarily in the place of risk.
2) Defines an HRA as a recreational activity conducted on the
property of a public entity which creates a substantial risk of
injury to a participant or spectator. Certain activities are
specifically designated as HRAs. These include: a) animal riding;
b) bicycle racing or jumping; c) mountain bicycling; d) off-road
motorcycling or four-wheel driving of any kind; e) motorized
vehicle racing; f) tree climbing; g) surfing; and h) diving from
places other than a diving board.
3) Provides that the immunity from liability to persons
participating in an HRA does not limit liability which would
otherwise exist for the following:
a) Failure of the public entity or employee to guard or warn
of a known but hidden danger , i.e. a dangerous condition known
to the public entity that is not reasonably assumed by the
participant to be an inherent part of the hazardous
recreational activity which caused the injury.
b) Damage or injury suffered in cases where the participant in
the HRA paid a specific fee to participate in the HRA (as
opposed to a fee paid for general park admission or parking).
c) Injury caused by the public entity's or employee's
negligent failure to properly construct or maintain any
structure, recreational equipment or machinery, or substantial
work of improvement utilized in the HRA.
d) Damage or injury suffered in cases where the public entity
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or employee recklessly promoted the participation in or
observance of the HRA.
e) An act of gross negligence by the public entity or employee
which is the proximate cause of the injury.
FISCAL EFFECT : None
COMMENTS :
Is skateboarding sufficiently similar to the other listed "HRAs?"
The many public entities and skateboard enthusiasts who support
this bill argue that the risks inherent to skateboarding are
similar to the risks inherent in the other HRAs for which public
entities and employees have a qualified immunity from liability.
Specifically, they argue that skateboarding poses risks similar to
those posed by mountain biking, horseback riding, surfing and tree
climbing.
The California State Association of Counties (CSAC), for example,
argues that these are all activities "in which the participant is
reasonably aware of the risks of the sport and has made a
conscious decision to take personal responsibility for those
risks. In the event that an individual makes that choice and is
injured, a public entity must not be held liable."
The Consumer Attorneys of California, however, disagrees, and
argues that skateboarding is qualitatively different than the vast
majority of activities categorized as HRAs, many of which involve
mechanized equipment or activities of an extraordinary nature
which carry inherent risks, such as skydiving, hang gliding, and
spelunking.
CAOC argues that litigation statistics do not support the
contention that skateboarding is an especially hazardous activity
which results in a plethora of suits against public entities.
According to CAOC, a search by Jury Verdicts Research found only
two cases in California, one of which ended in a defense verdict.
The other was a plaintiff's verdict where the jury reduced the
award by 88% due to the plaintiff's comparative negligence.
CAOC also argues that while some forms of advanced "sport"
skateboarding may carry the type of risks posed by some of the
HRAs, this bill fails to distinguish between those riskier forms
and ordinary skateboarding. To draw an analogy, the current
statute classifies bicycle racing or jumping (and mountain
bicycling) as a hazardous recreational activity while ordinary
recreational bicycle riding is not characterized as an HRA.
Possible amendment : Should the bill be amended to apply only to
"sport" or "acrobatic" skateboarding and not to ordinary
recreational skateboarding?
Will the bill encourage local agencies to build skateboard parks ?
Manufacturers of skateboard equipment and skateboarders support
this bill because they believe it will encourage public agencies
AB 1296
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to build skateboard parks. Many public agencies would like to
build skateboard parks as a means of confining skateboarding
activities to the park and discouraging or prohibiting
skateboarding in areas where it can conflict with pedestrian and
vehicular uses.
Even without building skateboard parks, there are public agencies
prohibiting skateboarding on public property. For example, the
City of Carlsbad prohibited skateboarding on public streets and
property shortly after failing to win passage of AB 533 in 1993,
an identical measure to limit a public entity's liability for
skateboarding injuries.
As a 14 year old skateboarder from Healdsburg named Heather
Simmons writes, "We would like to see an increase in skate parks
so we could quit getting run out of parking lots and off city
sidewalks daily -- making us feel like criminals. In most towns
there's no where else to skate! Most towns are afraid to build
parks or designate skateboarding areas for fear of lawsuits. The
right to sue should not get carried to the point where cities are
afraid to offer citizens increased safety through well built
facilities .... It's already an unwritten code among skateboarders
'we know we could get hurt and are willing to take that risk.'"
CAOC argues that, under recent developments in case law, local
agencies should already be protected from liability if they build
a skateboard park and post adequate warnings about the risks being
assumed by skating there. CAOC is referring to the "primary
assumption of the risk" doctrine enunciated by a plurality opinion
of the California Supreme Court in Knight v. Jewett (1992) 3
Cal.4th 296.
In Knight , the Court held that defendants generally have no legal
duty to protect a plaintiff injured in a sporting activity against
risks inherent in the sport itself which the plaintiff assumes by
participation in the sport. As an example, it noted that a ski
resort has no duty to remove moguls from a ski run (although it
has a clear duty to use due care not to increase the risks to a
participant over and above those inherent in the sport).
In the context of a properly constructed and maintained skateboard
park, following Knight 's application of the primary assumption of
risk doctrine, it would appear that, under existing law, a public
entity has no legal duty to protect a plaintiff against risks
inherent in the sport of skateboarding in a skateboard park.
However, the public entity cannot increase the risks to
participants by improper maintenance or defective construction or
design.
This is essentially the rule which would apply if this bill were
adopted, so it is unclear why skateboard enthusiasts and local
agencies believe the bill is needed in order to encourage the
construction of skateboard parks. By the same token, if the bill
does not represent a significant change in the law as it relates
to skateboard parks, it is not clear what the harm of passing the
bill would be, at least with respect the bill's application to
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skateboard parks.
Although CAOC opposes an immunity for skateboard parks, it argues
that it is particularly inappropriate for the bill to apply the
same rules to skateboarding on well-managed skateboard parks with
clear warnings as it would to skateboarding in other public places
where there are not clear warnings about the dangers. CAOC argues
this is particularly a problem because so many skateboarders are
minors who may not be able to appreciate the severity of the risk
posed by skateboarding in various public places.
Possible amendment : Should the bill be amended to make it an HRA
to skateboard in a "skateboard park" where the participants are
warned of the conditions and understand that they are assuming the
risk of injury, instead of making all skateboarding an HRA?
Related pending and prior legislation . This bill is identical to
AB 533 (Morrow) of 1993 and AB 2357 (Morrow) of 1996. AB 533
failed in the Assembly Judiciary Committee and AB 2357 failed in
the Senate Judiciary Committee. AB 915 (Baugh), which would add
roller blading and in-line skating to the list of HRAs, will also
be heard in this committee May 7, 1997. SB 1327 (Knight), which
would add bicycling or walking on or next to the bicycle path
located
alongside the California Aqueduct to the list of HRAs, is pending
in the Senate.
REGISTERED SUPPORT / OPPOSITION :
Support Opposition
California Association of Joint Consumer Attorneys of California
Powers Authorities
California Association of Counties
International Association of
Skateboard Companies
Association of California Water Agencies
California Parks and Recreation Society
North Bay Schools Insurance Authority
East Bay Municipal Utility District
PLUS 28 LETTERS FROM CITIES AND
331 LETTERS OR PETITION SIGNATURES
FROM INDIVIDUALS
Analysis prepared by : Gordon E. Hart / ajud / (916) 445-4560