In Haytasingh v. City of San Diego, published July 9, 2021, the Fourth District Court of Appeal, Division 1 affirmed in part and reversed in part a decision for the defendant city in a personal injury case. One of the plaintiffs was surfing. A city lifeguard was operating a city-owned personal watercraft on city business. Although the parties’ versions of the accident differed, the plaintiffs alleged the lifeguard was operating the watercraft inside the surfline, parallel to the surfer plaintiff, and made a left turn in front of him. To avoid a collision, the surfer plaintiff dove off his board and struck his head on the ocean floor, sustaining serious injuries. He and his wife sued the city and the employee. The trial court granted summary adjudication of the plaintiffs’ cause of action, ruling that Government Code section 831.7’s immunity for public entities and employees from liability for injuries that arise out of hazardous recreational activities (which the statute defines to include surfing) applied. The plaintiffs amended their complaint to allege two exceptions to section 831.7: gross negligence; and failure to warn of another hazardous recreational activity. The case proceeded to trial. At trial, the court declined to give the plaintiffs’ requested jury instruction that city lifeguards were required to comply with the basic speed law set forth in Harbors and Navigation Code section 655.2. Section 655.2 limits the speed of vessels operated within 100 feet of bathers to five miles per hour, unless the vehicle is engaged in law enforcement and displaying the required lights (which the lifeguard’s watercraft was not). The jury found for the defendants.
The appellate court affirmed the summary adjudication of the negligence cause of action. It rejected the plaintiffs’ contention that Government Code section 831.7, like the statute it was purportedly designed to mirror, Civil Code section 846, was limited to premises liability. Unlike the language of section 846, which focuses on premises, the broad language of section 831.7 focuses on the hazardous recreational activity itself, by negating any liability for injuries arising out of that activity. Because surfing is one of the activities listed in the statute as a hazardous recreational activity, the plain language of the statute established it applied. But the court also ruled that the trial court erred in concluding that the application of Harbors and Navigation Code section 655.2 was preempted by a municipal code ordinance, which limited speed to five miles per hour but exempted governmental employees from the speed limit. Although section 655.2 provides that it applies if the area is not otherwise regulated by local rules and regulations, and section 660 allows local governmental entities to adopt additional regulations if they do not conflict with the Harbors and Navigation Code, the court ruled that the municipal code section did conflict with the Code. The court further concluded that the instructional error was prejudicial.
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