BILL ANALYSIS
AB 1296
Page 1
ASSEMBLY THIRD READING
AB 1296 (Morrow)
As Introduced February 28, 1997
Majority vote
JUDICIARY 9-4
Ayes: Morrow, Alby, Aroner, Baugh,
Kaloogian, Keeley, McClintock,
Ortiz, Pacheco
Nays: Escutia, Floyd, Kuehl,
Villaraigosa
SUMMARY : Adds "skateboarding" to the list of "hazardous
recreational activities" (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 in a number of
specified situations, including where the injury is caused by the
public entity's or employee's negligent failure to properly
construct or maintain any structure, recreational equipment or
machinery utilized in the HRA.
FISCAL EFFECT : None
COMMENTS : 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 Consumer Attorneys of California (CAOC), however, disagrees,
and argues that skateboarding is qualitatively different than the
AB 1296
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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.
Manufacturers of skateboard equipment and skateboarders support
this bill because they believe it will encourage public agencies
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.
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.
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.
Analysis prepared by : Gordon E. Hart / ajud / (916) 445-4560
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031143