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Limiting government liability for "hazardous recreational activities"

California law provides very effective protection against lawsuits for public agencies that allow hazardous activities on public land.

By Patty Ciesla

Below is the text of the California Government Code which limits the government's liability in high-risk sports (including bicycle racing and jumping, and animal riding and equestrian competition). Basically, this law provides very effective protection against lawsuits for public agencies that allow hazardous activities on public land which is owned and operated by the agency, where they do not charge a fee to use the facility.

Note that the protection applies only to public entities (e.g., cities, counties, school districts, etc) and that liability is NOT limited for private entities that operate concessions on public lands (last clause), or when a fee is charged to participate. Skateboarding is not specifically named the list of hazardous activities, although it falls under the general description in 831.7.(b). You might contact the legal department of a city near you where there is a city-operated skate park, what their exposure to risk is and how they minimize their liability.

The City of San Jose recently had to deal with a lawsuit brought by the parent of a minor who was injured while jumping his bike at Calabazas park. The park was closed for a while following the injury for reconfiguration of the dirt jumping area, but it is due to be reopened soon (once the rain stops they can complete their work, I guess). I don't know the details or the outcome of the suit, but you should be able to get information from the city by contacting their Parks and Rec department. Their website is http://www.sjparks.org/

From the California Government Code:

831.7. (a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself and was voluntarily in the place of risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity.

(b) As used in this section, "hazardous recreational activity" means a recreational activity conducted on property of a public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator.

"Hazardous recreational activity" also means:

(1) Water contact activities, except diving, in places where or at a time when lifeguards are not provided and reasonable warning thereof has been given or the injured party should reasonably have known that there was no lifeguard provided at the time.

(2) Any form of diving into water from other than a diving board or diving platform, or at any place or from any structure where diving is prohibited and reasonable warning thereof has been given.

(3) Animal riding, including equestrian competition, archery, bicycle racing or jumping, mountain bicycling, boating, cross-country and downhill skiing, hang gliding, kayaking, motorized vehicle racing, off-road motorcycling or four-wheel driving of any kind, orienteering, pistol and rifle shooting, rock climbing, rocketeering, rodeo, spelunking, sky diving, sport parachuting, paragliding, body contact sports (i.e., sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants), surfing, trampolining, tree climbing, tree rope swinging, waterskiing, white water rafting, and windsurfing. For the purposes of this subdivision, "mountain bicycling" does not include riding a bicycle on paved pathways, roadways, or sidewalks

(c) Notwithstanding the provisions of subdivision (a), this section does not limit liability which would otherwise exist for any of the following:

(1) Failure of the public entity or employee to guard or warn of a known dangerous condition or of another hazardous recreational activity known to the public entity or employee that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose.

(2) Damage or injury suffered in any case where permission to participate in the hazardous recreational activity was granted for a specific fee. For the purpose of this paragraph, a "specific fee" does not include a fee or consideration charged for a general purpose such as a general park admission charge, a vehicle entry or parking fee, or an administrative or group use application or permit fee, as distinguished from a specific fee charged for participation in the specific hazardous recreational activity out of which the damage or injury arose.

(3) Injury suffered to the extent 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 utilized in the hazardous recreational activity out of which the damage or injury arose.

(4) Damage or injury suffered in any case where the public entity or employee recklessly or with gross negligence promoted the participation in or observance of a hazardous recreational activity.

For purposes of this paragraph, promotional literature or a public announcement or advertisement which merely describes the available facilities and services on the property does not in itself constitute a reckless or grossly negligent promotion.

(5) An act of gross negligence by a public entity or a public employee which is the proximate cause of the injury.

Nothing in this subdivision creates a duty of care or basis of liability for personal injury or for damage to personal property.

(d) Nothing in this section shall limit the liability of an independent concessionaire, or any person or organization other than the public entity, whether or not the person or organization has a contractual relationship with the public entity to use the public property, for injuries or damages suffered in any case as a result of the operation of a hazardous recreational activity on public property by the concessionaire, person, or organization.

from http://www.leginfo.ca.gov/cgibin/calawquery?codesection=gov&codebody=high+risk+activity+liability&hits=20

Patty Ciesla
Executive Director
Northern California Mountain Bicycling Association
PO Box 785, Los Altos, CA 94023-0785
650-917-1741
patty.ciesla@norcamba.org
www.norcamba.org

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