Today’s column is another sad story about a completely preventable accidental drowning. If you can’t swim, don’t use a paddleboard.

STEARNS WHARF

Thirty-year-old Davies Kabogoza and a friend he had just met rented paddleboards from a concessionaire on Stearns Wharf in Santa Barbara. On the drive to the wharf Kabogoza said he had paddle boarded before, but could not swim. He joked “about how there were not many places to swim where he grew up in Africa.”

Kabogoza initialed and signed the Rental Contract/Release Agreement provided by the wharf concessionaire. Kabogoza declined the traditional nylon life vest and elected an inflatable belt pack with a pull string to inflate. Bad idea if you can’t swim.

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PADDLEBOARDING

Kabogoza fell off his paddleboard while in the process of turning. His friend tried to reach him but he was panicking and too big for her to pull to the surface. He was later discovered in 35 feet of water near Buoy 6. The string on the belt pack had not been pulled to inflate and the pack was fashioned backwards instead of in the front as he had been instructed. Kabogoza’s mother sued Santa Barbara. The trial court ruled against her. She appealed.

GOVERNMENTAL IMMUNITY FOR HAZARDOUS RECREATIONAL ACTIVITIES

As you avid readers of the Law Review know, while a government, like the City of Santa Barbara, may be sued, there are numerous immunities under the Government Claims Act. One of those is the so called “hazardous recreational activity.” In short, public entities are not liable to anyone who participates in a hazardous recreational activity, which are expressly spelled out in Government Code section 831.7. The activities include boating.

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DROWNING VICTIM’S CLAIM AGAINST SANTA BARBARA

Kabogoza’s mother claimed Santa Barbara was liable because (a) it failed to warn her son, (b) it was grossly negligent, and (c) he had paid fees for the paddleboard rental. The hazardous recreational immunity does not hold up if the public entity fails to warn of a known dangerous condition or was grossly negligent or received specific fees for the recreational activity.

COURT RULING

In a well written, succinct opinion, the Second Appellate District Court of Appeal ruled for Santa Barbara finding there was no known, obvious dangerous condition to warn about nor was Santa Barbara grossly negligent. No evidence of gross negligence. And last, while the City received 10% of the paddleboard concessionaire’s gross receipts, the court of appeal determined that fee was more like a general park admission fee or parking fee as distinguished from a specific fee charged for participation in a specific hazardous recreational activity.

OTHER DEFENSES AVAILABLE TO SANTA BARBARA

In a footnote the court of appeal noted that because it found Kabogoza engaged in a hazardous recreational activity providing Santa Barbara an immunity, it did not address other potential defenses available to the City. One of those of course would be that Kabogoza assumed the risk of his injuries, which I dare say would have been another immunity for Santa Barbara. Plus he signed a Release of Claims.

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