Issue 113 - July 2021
ReClaim: Hazardous Recreational Activity Immunity
To help members identify and reduce the cost of claims involving cases where the application of governmental immunities may be a potential dispositive defense, the California JPIA has launched ReClaim, a new awareness campaign. This important, data-driven initiative will help members understand and address high-impact claims so that they can redirect critical funding toward important programs and services.
Hazardous Recreational Activity Immunity is the first of three specific governmental immunities on which the California JPIA’s ReClaim campaign will focus this summer. To receive an alert when new materials are available, please contact Management Analyst Courtney Morrison.
The Golden State’s diverse geography cultivates active communities. California beaches, lakes, public parks, and outdoor facilities serve as playgrounds for recreation enthusiasts ranging from surfers to mountain bikers.
To encourage local governments to provide recreational opportunities that improve resident activity level and quality of life, the California Government Code protects public entities from liability arising from injuries sustained during activities that carry a substantial risk of injury to participants or spectators. Hazardous recreational activity immunity eliminates the fear of liability for accidents or injuries that might occur.
Government Code section 831.7(b) defines “hazardous recreational activity” as:
A 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 code contains a non-exhaustive list of activities that qualify as “hazardous recreational activities,” such as any form of diving into water from other than a diving board or diving platform, bicycle motocross, boating, cross-country and downhill skiing, and rock climbing.
The purpose of hazardous recreational activity immunity is to prevent recreational users who might injure themselves during hazardous, unsupervised activities from attributing their injuries to conditions of public property by eliminating liability unless the public entity failed to either maintain the property or to warn of known dangerous conditions on public property not inherent in the activity itself.
Patterned on California Civil Code section 846, which provides qualified immunity for private landowners against claims by recreational users, the statue was intended, for example, to prevent hang gliders or rock climbers from suing a public entity when that person is injured during the activity. Cases applying section 831.7 immunity generally have done so only in the context of injuries sustained by both participants and spectators during voluntary, unsupervised, and unsponsored activities (such as injuries sustained during an after-hours adult basketball game).
The protections afforded by hazardous recreational activity immunity can be a powerful tool for combatting liability claims. Like any tool, it must be used properly and regularly maintained. To maintain its effectiveness, agencies must adhere to these three standards:
- Warn participants of known dangers by posting signs on entrances and fences, and including disclaimers on promotional flyers, or by obtaining signed waivers. Inspect and maintain signage regularly.
- Public entities should have routine, documented, maintenance and inspection procedures in place to ensure equipment is in good working order. Equipment should be maintained in a way that it would not cause injury to a person who is exercising due care while using the equipment.
- Although a fee can be charged to participate in an activity, it will eliminate the immunity. A public entity can still mitigate liability by having participants sign a liability waiver. Parking fees, fees collected from general permits, and admission fees will not abolish the immunity.
For more information, please read the California JPIA’s white paper on hazardous recreational activity immunity. The white paper presents more detailed discussion on the scope of the immunity and how courts have applied exceptions, as well as specific tips on how public agencies can preserve the immunity.< Back to Full Issue Print Article