BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
John L. Burton, Chairman
1997-98 Regular Session
AB 1296 A
Assemblymember Morrow B
As Introduced
Hearing Date: July 15, 1997 1
Government Code 2
GWW:lgh 9
6
SUBJECT
Public Entity Hazardous Recreational Activity Immunity:
Skateboarding
DESCRIPTION
AB 1296 would add "skateboarding" to the list of "hazardous
recreational activities" for which a public entity is
immune from liability when a person engaged in that
recreational activity on public property is injured.
BACKGROUND
Under the Tort Claims Act, a public entity may be held
liable for a dangerous condition of public property when
the following essential elements are proven:
(a) The property was in a dangerous condition at the time
of the injury;
(b) The plaintiffos injury was proximately caused by the
dangerous condition;
(c) The injury that occurred was reasonably foreseeable as
a result of the dangerous condition; and,
(d) The public entity either had actual or constructive
notice of the condition a sufficient time before the injury
to take reasonable measures to prevent the injury, or the
condition was created by a public employeeos negligent or
wrongful act or omission. (Government Code Section 835.)
The Act also provides that the happening of the accident
causing the plaintiffos injury ois not in and of itself
evidence that public property was in a dangerous
condition." (Government Code Section 830.5(a)).
Notwithstanding the above, a qualified immunity is
conferred upon public entities for injuries incurred by
persons participating in a ohazardous recreational
activityo on public property which "creates a substantial
(as distinguished from a minor, trivial, or insignificant)
risk of injury. " Such activities include various water
activities including diving and boating, animal riding,
archery, bicycle racing or jumping, cross-country and
downhill skiing, mountain bicycling, hang gliding,
kayaking, motorized vehicle racing or off-road
motorcycling, orienteering, pistol and rifle shooting, rock
climbing, surfing, trampolining, tree climbing, tree rope
swinging, water-skiing, whitewater rafting, and wind
surfing. "Mountain bicycling" does not include riding a
bicycle on paved pathways, roadways, or sidewalks.
The immunity does not apply under the following
circumstances:
1.The public entity fails to warn of a "known dangerous
condition" that is not reasonable assumed by the
participant as inherently a part of the hazardous
recreational activity.
2.The injury arises out of an activity for which a "fee"
was charged. The term "fee" does not include "general
purpose" charges such as park fees, parking fees, or
permit fees.
3.The injury was caused by the public entity's failure to
"properly construct or maintain" any structure,
equipment, or machinery utilized in the activity.
4.The injury was caused by the public entity's reckless or
grossly negligent promotion of the activity.
5.The injury was caused by the gross negligence of the
public entity.
CHANGES TO EXISTING LAW
Existing law , as set forth in Government Code Section
831.7, provides that no public entity or public employee is
liable to any person (and any assistant of the participant
or spectator) who "participates in a hazardous recreational
activity" for any personal injury or property damage
arising out of that hazardous recreational activity.
This bill would add "skateboarding" to the list of
"hazardous recreational activity" in Section 831.7 for
which the public entity enjoys a qualified immunity from
liability.
COMMENT
1. Should skateboarding be deemed to be a "hazardous
recreational activity," so that a public entity is not
liable for skateboarding injuries on its property, except
as specified?
The California Association of Joint Powers Authorities
(CAJPA), sponsor of AB 1296, asserts that skateboarding
is an increasingly popular activity which takes place
primarily on public property such as state and city owned
facilities, streets, sidewalks, and on school grounds as
well as public parks. The proponent asserts that
skateboarding is a relatively uncontrollable activity and
the pursuit of this activity on public property brings
with it public liability. The City of Moreno Valley, in
support of AB 1296, states that it recently spent
approximately $31,000 to defend and settle a case
involving an injured skateboarder. (The specific details
of the case were not provided.)
CAJPA points out that most public entities self-insure
for much of their potential liability. Activities such
as skateboarding generally are not covered by commercial
insurance in any event because of the recognized dangers
of skateboarding.
Proponents, numerous cities and park districts, assert
that deeming skateboarding to be a "hazardous
recreational activity" would relieve districts, local
governments and the state from liability for a relatively
uncontrollable activity. In addition, it might encourage
the public entity to build "skateboard" parks or
facilities where the participants understand the risks
and conditions, and taxpayer funds are not in jeopardy
for extreme liabilities over which there is no control.
Proponents contend that passage of this bill would
encourage cities and recreation and park districts to
construct new skateboard parks if the threat of liability
due to the nature of the activity were reduced.
SHOULD THE BILL BE NARROWED TO APPLY THE IMMUNITY TO
SKATEBOARDING IN THESE SPECIALLY CONSTRUCTED "SKATEBOARD
PARKS" WHERE THE PARTICIPANTS KNOW OF AND UNDERSTAND THAT
THEY ARE ASSUMING THE ORDINARY RISK OF INJURY, INSTEAD OF
APPLYING TO ALL PUBLIC STREETS AND PROPERTY WHERE HIDDEN
RISKS OF INJURY ARE NOT READILY KNOWN OR APPRECIATED?
2. Opposition from Consumer Attorneys
The Consumer Attorneys of California (CAOC) opposes AB
1296 for the following asserted reasons:
a) Skateboarding is different from the current
hazardous recreational activities
Skateboarding is qualitatively different than the
vast majority of activities immunized by Section
831.7, many of which involve mechanized equipment or
activities of an extraordinary nature which carry
inherent risks as skydiving, hang gliding, and
spelunking. Ordinary skateboarding does not carry
such inherent risks.
b) Bill does not distinguish between ordinary
skateboarding and riskier oacrobatic skateboardingo
While forms of advanced "sport" skateboarding may
carry some inherent risks, as evidenced by skaters
participating in the sport in the oX-games,o this bill
fails to distinguish between those riskier forms and
ordinary skateboarding by young kids. To draw an
analogy, the current statute classifies bicycle racing
or jumping as a hazardous recreational activity while
ordinary bike riding is not.
SHOULD SOME DISTINCTION BE DRAWN BETWEEN "SPORT" OR
oACROBATICo SKATEBOARDING AND "ORDINARY"
SKATEBOARDING?
c) Proposed immunity will most likely affect minors
Ordinary skateboarding is predominantly an activity
enjoyed by minors who simply do not appreciate the
risks inherent in skateboarding on public streets and
may not recognize dangers posed by a dangerous
condition of public property.
SHOULD A DISTINCTION BE DRAWN BETWEEN YOUNG MINORS
AND ADULTS?
d) No threat of frivolous litigation because of
disincentives for lawyers to file frivolous claims
Opponents also assert that there is no compelling
evidence of claims or lawsuits brought against public
entities because of skateboarding injuries. According
to CAOC, a search of 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.
Thus, CAOC contends, the doctrines of assumption of
risk and comparative negligence, as well as the
sanctions for meritless lawsuits, and the business
economics of bringing a personal injury case on a
contingency basis will weed out any frivolous claims.
Proponents respond that the threat of potential
lawsuits is scaring many cities into prohibiting a
very popular form of recreational activity. While a
city may prevail in the lawsuit, the costs of a
successful defense can run into the tens of thousands
of dollars. In the absence of some protective
measures to shield public budgets from potential
lawsuit and liability, proponents report that some
public entities have no choice but to prohibit
skateboarding on public streets and property. The
City of Carlsbad took that action shortly after
failing to win passage of AB 533 in 1993, an identical
measure to limit a public entity's liability for
skateboarding injuries.
e) CAOC believes immunity should be limited to adults
in skateboard parks
CAOC contends that AB 1296 adopts the wrong
approach and point to examples such as the City of
Davis which built a skateboard park to address the
problem without broadly resorting to restricting
people's legal rights. CAOC contends that any
immunity, if passed, should be limited to injuries in
skateboard parks and limited to adult skateboarders.
(It should be noted, however, that the City of
Davis requires those who use its skateboard facilities
to sign an agreement which details the dangers. If
the user is under 18, the parent or legal guardian
must sign.)
3. Discussion of possible amendments -- nothing firm
Proponents have discussed the possibility of amending the
bill, but need to check with the author, to narrow its
provisions to osport skateboardingo in designated
skateboard parks. However, they do not want to restrict
the immunity only to adults and believe that the immunity
should also apply to minors who use the park when the
minor and the parent or legal guardian has signed a legal
waiver of liability.
CAOC objects to extension of the immunity to minors,
pointing out that these parks will likely be
unsupervised, which increases the risks of injuries and
the possibilities of collisions between older, bigger
skateboarders and younger, smaller skateboarders using
the same facilities. CAOC asserts that waivers do not
necessarily inform the user/signator of the full risks
being assumed, and that as a matter of public policy
should be disfavored as a means of avoiding liability.
In addition, CAOC asserts that any such immunity must
clearly retain the public entity's duty to maintain the
skateboard park in a safe manner.
4. Related pending legislation
AB 915 (Baugh) would add "in-line skating" to the list of
"hazardous recreational activities" for which a public
entity is immune from liability when a person engaged in
that recreational activity on public property is injured.
Support: Assn. for California Tort Reform; Assn. of
California Water Agencies; CA Business Properties
Assn.; CA Joint Powers Insurance Authority; CA
Park and Recreation Society; CA State Association
of Counties; Cities of Agoura Hills, Apple
Valley, Berkeley, Camarillo, Carlsbad, Cerritos,
Chino Hills, Chula Vista, Claremont, Corona,
Coronado, Covina, Culver City, Dana Point,
Dinuba, Downey, El Cajon, Fullerton, Glendale,
Glendora, Hayward, Huntington Beach, Imperial
Beach, La Mirada, Laguna Hills, Lodi, Loma Linda,
Los Alamitos, Millbrae, Modesto, Moreno Valley,
Mountain View, Novato, Orange, Oroville,
Palmdale, Palo Alto, Pleasanton, Poway, Rancho
Mirage, Rio Vista, Rohnert Park, Roseville, San
Luis Obispo, Santa Ana, Santa Barbara, Santa
Cruz, Santa Fe Springs; Santa Rosa, Santee,
Sonoma, South Lake Tahoe, St. Helena, Taft,
Temecula, Torrance, Tracy, Ukiah, Visalia, Walnut
Creek, Willits, and Windsor; Conejo Recreation &
Park District; East Bay Municipal Utility
District; Glenn County Board of Supervisors;
Glenn County Joint Powers Authority; High Speed
Productions, Inc.; League of California Cities;
Marin County; North Bay Schools Insurance
Authority; Northcountry Clinic (Arcata); Pleasant
Valley Recreation and Park District; RJM Design
Group, Inc.; Redwood Empire Schools' Insurance
Group; Sunrise Recreation and Park District;
Thousand Oaks/Conejo Valley Chamber of Commerce;
and 759 individuals.
Opposition: Consumer Attorneys of California
HISTORY
Source: California Association of Joint Powers
Authorities
Related Pending Legislation: AB 915 (Baugh) - also
scheduled for July 15
hearing
Prior Legislation: AB 2357 (1996) - Held in Senate
Judiciary Committee
AB 533 (1993) - Held in Assembly
Judiciary Committee
Assembly Floor Vote: Ayes 58, Noes 9
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