Law review: A hazard of recreating on public property – government immunity
The denizens of, and visitors to, Truckee-Tahoe are a recreational bunch. The Sierra Nevada is a playground for the adventurous, and rightly so – it is a haven for skiing, mountain biking, boating, and countless other outdoor activities.
Activities the California Legislature has declared, “hazardous recreational activities.” Activities that are basically, and very broadly, those that come with a substantial risk of injury. So, congratulations to all you hazardous risk takers, you are legally hardcore, and you probably didn’t even know it.
It is not a desirable distinction though. That is because if you are participating in a hazardous recreational activity on state, county, city, or municipal property and get hurt, you will – subject to limited exceptions – be unable to hold the respective governmental agency accountable for your injuries.
A recent decision from the California Court of Appeals, Fourth Appellate District – Carr v. City of Newport Beach – highlights the broad immunity from liability enjoyed by public entities from claims for injuries sustained by those participating in activities most of us would not necessarily deem “hazardous.”
The facts of the case are tragic. Brian Carr was enjoying a holiday weekend kayaking in Newport Bay. When he returned to the beach, Mr. Carr decided to go for a swim, and instead of wading into the water from the sand, he walked onto a 20-inch-wide seawall and dove into the water headfirst. His head hit the bottom, and he sustained a spinal cord injury that left him a quadriplegic.
Mr. Carr filed a personal injury lawsuit against the City for dangerous condition of public property and for failure to warn of the dangerous condition. Mr. Carr alleged the City was aware that people dove from the seawall, that the danger of doing so was not readily apparent to the public, and that the City failed to take protective measures to prevent diving, such as, removing the seawall, posting warning signs, or training lifeguards.
The City moved to have the case dismissed given its immunity from liability for injuries sustained by persons participating in hazardous recreational activities on public property, pursuant to Government Code section 831.7. The trial court agreed, and Mr. Carr appealed the decision.
The court of appeal, somewhat apologetically, ruled in favor of the City. The court stated, “though application of  immunity in cases as tragic as this may seem harsh, we are obligated to apply the statute as enacted by the Legislature.” The court further explained that the California Legislature chose to “shield public entities from liability claims arising from hazardous recreational activities in order to deter those entities from severely restricting access to and use of public lands.”
A “hazardous recreational activity,” per Government Code section 813.7, is any “recreational activity conducted on property of a public entity that creates a substantial, as distinguished from a minor, trivial, or insignificant, risk of injury to a participant or a spectator.” The statute enumerates an extensive list of specific activities that constitute hazardous recreational activities, including: “mountain biking,” “cross-country and downhill skiing,” “animal riding,” “boating,” and, unfortunately for Mr. Carr, “any form of diving into water from other than a diving board or diving platform.”
Because Mr. Carr, was diving from public property at the time of his injury, and because he did not dive from a board or platform, the City was, the appellate court held, legally insulated from culpability pursuant to California law that protects governmental entities from lawsuits arising from hazardous recreational activities.
The California Legislature has determined that the broad grant of immunity to public entities “is an appropriate price to pay for the extensive and enjoyable, though often inherently hazardous, recreational use of the myriad of so readily accessible public lands.”
There are – as they say – “no free lunches.” You pay to play. The cost of riding public trails, boating public waterways, and skiing public lands, is a substantially diminished ability to seek recourse against government agencies for injuries suffered. It is a tradeoff most do not know they have made.
Ravn R. Whitington is a partner at Porter Simon licensed to practice law in California and Nevada. Ravn heads up the firm’s personal injury practice – Porter Simon Sierra Injury Lawyers – and is a member of the firm’s Trial Practice Group where he focuses on all aspects of civil litigation. He may be reached at email@example.com, http://www.portersimon.com, or http://www.sierrainjurylawyers.com. ©2023
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