No Warnings Required for Dangerous Recreational Activities

Summary: A plaintiff who sustained injuries after diving headfirst into shallow waters from a 20-inch-wide seawall brought an action for dangerous condition of public property and failure to warn. In Carr v. City of Newport Beach (2023) 94 Cal.App.5th 1199, the Fourth District Court of Appeal sustained the trial court’s granting of summary judgment based on hazardous recreational activity immunity.

Discussion: The plaintiff, Brian Carr, and a friend were kayaking in Newport Bay. After consuming a few beers, they returned to a beach known as “Baby Beach.” Carr chose to dive headfirst into the harbor waters from a 20-inch wide seawall, which was originally constructed in the 1930s for erosion control. Carr hit the bottom of the shallow water, sustaining a spinal cord injury. Carr filed suit against the City of Newport Beach alleging two primary causes of action: dangerous condition of public property under Government Code section 835; and failure to warn under Government Code section 830.8.

Government Code section 831.7 provides immunity to public entities for injuries sustained during hazardous recreational activities, such as diving into water from any place other than a diving board or platform, or where diving is prohibited with reasonable warning. Carr argued that this immunity only applied where warnings were given. The Court disagreed noting that the statue is written in the disjunctive, meaning diving from places other than diving boards or platforms triggers immunity regardless of warnings. The Court further found that because the seawall was not a diving board, but rather was built to control erosion, diving from the seawall fell within the scope of a hazardous recreational activity.

Carr argued for an exception to immunity because the City was grossly negligent for not blocking access to the seawall or posting warnings, despite training lifeguards about the dangers of diving from such structures. The Court rejected this argument, finding that the seawall did not pose an extreme risk. The inherent risk of diving into water is hitting the bottom, which is an assumed risk in hazardous recreational activities. The Court noted gross negligence does not lie in failing to protect against or warn about inherent risks.

The Court affirmed judgment in favor of the City, emphasizing the legislative intent to shield public entities from liability to promote the use of public lands for recreational activities.

A copy of the case can be found here.

This communication may be considered advertising in some jurisdictions. It is intended to provide general information about legal developments and is not legal advice. If you have questions about the contents of this alert, please contact Matthew T. Matejcek.