In Carr v. City of Newport Beach, published August 29, 2023, a divided panel of the Fourth District Court of Appeal, Division 3 affirmed summary judgment for the defendant city. The plaintiff walked onto a 20-foot groin jutting out from a beach, and dove off of it. His head struck bottom and he was rendered a quadriplegic. He sued the city for maintaining a dangerous condition of public property. The trial court granted summary judgment based on Government Code section 831.7's Hazardous Recreational Activity immunity.
The panel majority affirmed the decision. Among the activities that section 831.7 defines as a hazardous recreational activity is "[a]ny form of diving into water from other than a diving board or diving platform, or at any place or from any structure where diving is prohibited and reasonable warning thereof has been given." The majority interpreted these provisions as operating in the disjunctive. Therefore, any dive into water from other than a diving board or diving platform is a hazardous recreational activity, regardless of whether diving is prohibited and reasonable warning given. The majority rejected the plaintiff's argument that triable issues existed regarding the gross negligence exception to the immunity. The plaintiff contended that there was gross negligence because the city prohibited diving off groins yet did not post a warning of that prohibition, and because city lifeguards watched him dive and did not interfere. The gross negligence exception does not apply to a failure to warn or protect against a risk inherent in the activity, such as the risk of striking an object when diving headfirst into water. Further, the argument that the lifeguards did not enforce the law is barred by Government Code section 818.2's immunity for failing to enforce the law.
A dissenting justice opined that the majority's interpretation of section 831.7 would render the second part of the statute superfluous, and that the immunity applied only when diving from a structure where diving is prohibited and reasonable warning given. The justice also opined that there were triable issues of fact on whether there was a dangerous condition.
Both the majority and the dissent asked the Legislature and the California Supreme Court to clarify section 831.7.
Comments