Hazardous Recreational Activity Immunity
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Take action to help your agency be smarter about risk management!
ReClaim is an important, data-informed initiative that embodies two concepts: First, developing a deep understanding of the claims that represent the greatest impact to members, including cost, reputation, and disruption. Second, building strategies to reduce these claims in the future.
Although these claims impact members differently, depending on each agency’s size and history, there is one common data point: For the liability program—the one program in which all California JPIA members participate—the top five claims have cost $85M over the last five years, or $17M shared annually by all members of the pool.
What liability does an agency have when they provide a skatepark that is also used by BMX bike and scooter riders?
“Skatepark” is a generic term for “ramp-park,” and as such, should be allowable for bikes, scooters, roller skates, inline skates, wheelchair Motocross riders, and skateboards to use the same park.
In the state of California, hazardous activities include bicycle riding, skateboarding, and rollerblading, and specifically include the activity of bicycle jumping (Ca. Gov. Code s831.7), (CA Gov’t Code § 831.7(b)).
Liability is a moderately low risk, provided there are posted rules that include the requirement to be courteous to others and there is a documented inspection and maintenance plan. Studies of ramp-parks with mixed use of BMX and scooters have concluded that such use of the park does not pose any additional wear and tear or create added risks.
Our agency has open-space and parklands that overlook the ocean. These locations are unguarded cliffs, what steps do we need to take to warn the public? The community does not want fences installed in these natural environment areas.
It is highly recommended to install signage that warns of unguarded cliffs, the risk of falling, and the importance of staying back from the edge. Failure to warn of a known dangerous condition or of another hazardous recreational activity that was not assumed by the participant as inherently part of the activity (CA Gov’t Code § 831.7(c)(1)).
We are considering adding a zipline in one of our parks. How would this impact our liability?
While ziplining is a hazardous activity there are considerations that may void the hazardous recreational activity immunity. For instance, if the agency plans to charge a fee that will take away the immunity.
If your agency does not intend to charge a fee, it is recommended to post signage regarding safety concerns, rules, and warn of any hazards associated with the activity. If there are no plans to have an attendant, posted signage should be clear that use of the zip line is at your own risk.
If your agency intends to charge a fee. It is recommended to obtain a written waiver from each participant. Visibly post rules, safety concerns and hazards associated with the activity. Ensure that staff are well trained in the safety requirements and practices for this activity.
- Exceptions to hazardous recreational activity immunity:(1) Failure to warn of a known dangerous condition or of another hazardous recreational activity that was not assumed by the participant as inherently part of the activity (CA Gov’t Code § 831.7(c)(1)).
- When public pays specific fee to the entity for participation in the hazardous activity (CA Gov’t Code § 831.7(c)(2)).
- Gross negligence (CA Gov’t Code § 831.7(c)(4)(5)).
- Negligent failure to properly construct and maintain in good repair any structure, recreational equipment or machinery, or substantial work of improvement (CA Gov’t Code § 831.7(c)(3).
- Skate Park Maintenance Checklists
Maintenance checklists for noting and correcting deficiencies and repairs to be made at permanent or prefabricated skate parks, including drinking fountains, parking lots, and sidewalks
- 2020 Forum Session
A recording of a session from the Authority’s 2020 virtual Risk Management Educational Forum that addresses hazardous recreational activity immunity and includes elements of the immunity, related statutes, and preserving the immunity. Note: to view this recording, an online registration form must be completed.
- Hazardous Recreational Activity Immunity White Paper
This white paper presents a discussion on the scope of the hazardous recreational activity immunity, the way courts have applied exceptions, and tips on how to preserve it.
- Waiver, Release, Hold Harmless, and Agreement Not to Sue Policy Template
This agreement states the risks involved in participating in classes or events and releases the agency from liability.
- Skate Park Guidelines
Recommended guidelines for the design, construction, and operation of skate parks
Relevant Court Cases
Decker v. City of Imperial Beach (1989)
Gary Decker went surfing while were no lifeguard services provided at the beach. While in the water, his leash became entangled in a nylon rope attached to a submerged lobster trap. The local fire chief refused to allow bystanders to attempt to rescue Gary, as their training and experience was unknown. Gary’s leash eventually became disentangled, but efforts to revive him after he floated to shore were unsuccessful. The court held that even though the city was negligent in its attempts to assist and rescue Gary, hazardous recreational immunity protected the city from liability because Gary’s death arose out of his participation in a hazardous recreational activity. Read more.
Berry v. State of CA (1992)
Sandra Dee Berry sustained serious injuries after diving from a tree stump into the American River and hitting her head on a concrete structure under the water. Berry alleged there was a dangerous condition of public property and that the tree stump was a “diving platform.” Government Code section 831.7 provides that hazardous recreational activities include any form of diving into water from other than a diving board or diving platform. However, contrary to Berry’s claim, the court held that a tree stump is not a diving platform and therefore the State was immune from liability. Read more.
Perez v. City of Los Angeles (1994)
A 12-year-old child injured himself by swinging over a ravine from a rope tied to a tree. The rope broke, and he fell into the ravine and onto debris located in the ravine. Perez argued that the debris in the ravine created a separate dangerous condition which he did not appreciate. The city failed to warn of this condition and therefore, it was not part of the risk he assumed when he swung from the tree. The court rejected this argument, stating that the possibility of falling from the rope was obvious and inherent in the activity itself, and it did not matter if the plaintiff specifically knew of the danger of falling into the debris, as the average person would understand and appreciate that was a risk associated with swinging from the rope over the ravine. Read more.