Our case today involves a surfer at Mission Beach who claimed that a City of San Diego lifeguard operating a personal watercraft, both inside the surf line, caused him to fall and hit his head on the beach. Sadly, the surfer broke his neck, lives with a feeding tube and uses a wheelchair fulltime.

SURFER CLAIMS LIFEGUARD CAUSED HIM TO CRASH ON BEACH

Ashley Marino, a San Diego lifeguard, was operating a personal watercraft in two feet of water separating swimmers and surfers into their respective zones in the water. At the same time Michael Haytasingh was traveling parallel in the same direction on his surfboard in three feet of water next to and behind Marino.

Haytasingh claimed he had been riding a 3-feet high wave for approximately seven seconds when the jet ski cut left right in front of him causing him to “bail off to the right” where he hit his head on the ocean floor and was seriously injured.

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Marino had a different story. She claimed she was riding parallel to Haytashingh and in order to avoid colliding, turned left and began a U-turn maneuver. She estimated she was traveling between 5-15 mph. She denied she cut Haytashingh off.

IMMUNITY FOR HAZARDOUS RECREATIONAL ACTIVITY

Marino and the City argued they were wholly immune from any negligence of Marino’s because Haytashingh was injured while he was surfing and surfing is a “hazardous recreational activity” under Government Code section 831.7. Section 831.7 precludes liability of a public entity or public employee for injuries arising out of hazardous recreational activities conducted on public property. Surfing is expressly listed in the code as a hazardous recreational activity. The trial court ruled the immunity code applied without exception. Win for San Diego.

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But, hold on, we are not done. Haytashingh and his lawyers also argued that Marino and San Diego were at fault because Marino was operating the personal watercraft faster than the 5 mph speed limit mandated by Harbors and Navigation Code section 655.2 when operating within 200 feet of a beach frequented by bathers.

JURY VERDICT OVERTURNED

The jury that ruled for Marino and San Diego was not told about section 655.2 because the trial judge believed that section did not apply and that another code did apply. It’s complicated.

The issue over the dueling code sections in this 70-page Opinion is too gnarly to explain, but San Diego’s Fourth Appellate District Court of Appeals overturned the jury’s ruling in favor of San Diego and ordered a new trial.

If Haytashingh can prove gross negligence at a new trial, which seems to me will be difficult, he stands a chance of getting a judgment against Marino and the City.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com