Absent the improbable piranha when diving into local waters, there may be no duty to warn

A motorcyclist sees traffic up ahead. To his right is a dirt lot owned by a local government agency. If he cuts across the lot he'll avoid the traffic jam and get to his destination quicker. So he takes his Suzuki 250 off-road at a cool 25 miles per hour. Just as he approaches the end of the lot, he sees what looks like metal cables connecting portions of fencing bordering the property. He is unable to brake in time to avoid colliding with the cables. He suffers serious injuries and spends two months in the hospital.

Here's the question: Is colliding with the cables used to demarcate the public entity's property line an inherent risk our motorcyclist assumed when he hopped on his Suzuki? Yes, according to the Court of Appeal in Altizer v. Coachella Valley Coastal Commission. In a case of first impression, the Court ruled that Tanner Altizer assumed the inherent risk of colliding with fencing, barricades, or other debris when he rode his motorcycle across the dirt lot owned and maintained by the Coachella Valley Coastal Commission. As a result, the Commission had no duty to warn him that they were there.

Government Code § 831.7

Government Code 831.7 is the hazardous recreational immunity statute. It lists a plethora of activities that are "recreational" in nature. A public entity is immune from tort liability when a plaintiff is injured on its property engaging in these activities. The list is not exclusive, and it includes such activities as diving, skiing, hang-gliding, rock climbing, and body contact sports. Unfortunately for Altizer, it also includes motorcycling.

The reason for this immunity is based on public policy. These activities are inherently dangerous, and we want public entities to make their properties available for the public's use and enjoyment. Imposing tort liability might thwart these goals. Section 831.7 contains several exceptions to the immunity rule. One of the exceptions is the duty to warn.

Duty to Warn

Section 831.7 re-imposes tort liability when a public entity fails to warn of a known dangerous condition or another hazardous recreational activity known to the public entity or employee that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose. Government Code 831.7 § (c)(1)(A). You're not alone if you don't know what that means.

Several recent cases have explored the government's duty to warn under Section 831.7. They have all come down in the government's favor. The courts have consistently found that pretty much everything is an inherent risk to the activity the plaintiff was doing. The result is the same--immunity applies because the government had no duty to warn the plaintiff of that particular risk.

Mubanda v. City of Santa Barbara

Mubanda was a wrongful death case. Davies Kabagoza went paddle-boarding in the Santa Barbara harbor in 2017. He did not know how to swim, and his flotation belt was fastened incorrectly. Sadly, Kabagoza fell off his paddle board and drowned. His mother sued the City of Santa Barbara, which was responsible for the portion of the harbor where Kabagoza died. She argued that the immunity afforded by section 831.7 should not apply because the City failed to warn her son of the dangers associated with paddle-boarding.

The Court disagreed. The risk of falling off a paddle board and drowning in the harbor is an inherent risk of any boating activity, including paddle boarding. The depth of the water is not necessarily relevant. Paddle boarders are presumed to know that choppy water can cause a paddle boarder to lose his balance and fall into the water. The Court noted that the Legislature's aim was to withhold immunity if and only if the public entity failed to warn against a dangerous condition or hazardous activity that is not an inherent part of the activity. Mubanda v. City of Santa Barbara (2022) 74 Cal.App.5th 256.

So what does that mean? When is a risk not inherent? In Perez v. City of Los Angeles (1992) 27 Cal.App.4th 1380, the court gave an example. Let's say someone decides to swing from a rope tied to a city tree. The person musters his inner Tarzan and swings right into an adjacent pond, where he is then devoured by piranhas or crocodiles. Rope swinging is inherently dangerous. Falling to the ground is among the risks associated with this activity, and every rope swinger knows this. But being eaten by dangerous marine life is not. So, because the city knows there are piranhas or crocodiles in the water, and the rope swinger does not, the city would need to warn the rope swingers that man-eating fish are lurking under the surface.

Carr v. City of Newport Beach

Brian Carr visited Newport Beach's "Baby Beach" over a holiday weekend. A 20-inch seawall called a "groin" juts out into the water. Thinking that the water was deeper than it actually was, Carr dove off the groin in full view of the lifeguards on duty. Sadly, diving into the shallow water rendered Carr a quadriplegic. He sued Newport Beach, arguing it had a duty to warn him not to dive into the shallow water. The city moved for summary judgment, arguing it was immune from liability associated with the hazardous recreational activity of diving into the water. The trial court granted summary judgment, and the Court of Appeals affirmed.

The court noted that diving is inherently dangerous. In fact, diving is explicitly listed as a hazardous activity in Section 831.7. By its plain terms, the duty to warn only applies if the danger is not an inherent risk of the hazardous recreational activity. Unlike the piranha or crocodile example mentioned above, diving headfirst into water entails the risk of hitting the bottom or an object under the water's surface. Both the majority and the dissent in Carr invited the Legislature to rewrite Section 831.7. But until that happens, courts will apply the statute as it stands now, even if it leads to tragic results. Carr v. City of Newport Beach 2023 WL 5596339.

Altizer v. Coachella Valley Coastal Commission

This brings us back to Altizer. The trial court ruled that the Coachella Valley Coastal Commission was immune because Tanner Altizer was engaged in the hazardous recreational activity of riding his motorcycle. The Court of Appeals affirmed. The Court noted that it did not matter that Altizer was riding his motorcycle for transportation and not recreation. Altizer assumed the risk of colliding with natural and unnatural objects when he rode his motorcycle off-road through an unpaved desert lot. Properties throughout that area are peppered with fences of different materials and sizes used to identify property lines. The Court concluded that the Coachella Valley Coastal Commission did not need to warn Tanner Altizer about the metal cables because colliding with them was an inherent risk of riding his motorcycle. Altizer, 2023 WL 5343730.

I would respectfully argue otherwise. There are many inherent risks to riding a motorcycle. Is crashing into a thin metal cable which is barely visible to the naked eye one of them? I think not. Yes, drowning is an inherent risk associated with venturing into the ocean on a paddle board or other watercraft. Yes, we were all warned as children not to dive in the shallow end. But are we to presume that the water is always shallow? Isn't the hidden danger of unknowingly diving into shallow water the same as the hidden danger of piranhas waiting to eat an unsuspecting rope swinger? Wouldn't a simple warning by the on-duty lifeguard, or better yet, a "No Diving" sign on the groin in the Newport Beach Baby Beach have prevented Brian Carr from losing the use of his legs for the rest of his life?

Conclusion

As the cases above demonstrate, unless and until we encounter a hypothetical as outlandish as the one referenced in Perez, the hazardous recreational immunity statute will continue to bar plaintiffs' tort claims. Public entities will continue to escape liability because courts will find that almost anything is an inherent risk of the activity the plaintiff was injured doing--thereby abrogating the duty to warn. Nobody will encounter a piranha or crocodile anywhere in California outside of a zoo or aquarium. The Perez court's hypothetical is helpful, but the reality is that Section 831.7 imposes a high burden on plaintiffs engaged in hazardous recreational activities who are injured on government property. Let's hope that the Legislature takes up the court's invitation in Carr and finally fixes this mess of a statute. Better yet, it can feed it to the piranhas.