Beach Cities Bracing to Fight Ruling on Accident Liability

Before Steve and April Gonzales’ lawsuit over their mother’s drowning accident made its way to the state Supreme Court--before it was even appealed--officials in some California beach cities recognized the potential impact.

Sixty miles upcoast from Black’s Beach, the popular San Diego nude bathing spot where Theresa Gonzales drowned in a riptide in 1978, San Clemente Marine Safety Capt. Lynn Hughes heard about the case and recommended that warning signs be posted at several spots along that city’s hilly shoreline, where submerged rocks pose a hidden threat.

Unlike many of its municipal neighbors, San Clemente so far has not had to defend itself against large lawsuits resulting from swimming or diving accidents since the Gonzales ruling in 1982. But Hughes’ recommendation seemed prophetic last year when neighboring Newport Beach was ordered by a Superior Court judge to pay a $6-million judgment to Claremont, Calif., resident John Taylor, who became a quadriplegic after diving into shallow water near the city’s Balboa Pier.

Now, Hughes has ordered additional signs in San Clemente, warning in both English and Spanish about the perils of everything from rip currents to clearly visible pier pilings.

Many public entities that own beaches along California’s 840-mile coastline are following suit; posting, or preparing to post before summer, signs in English, Spanish and in some cases Vietnamese to warn about a variety of potential dangers--some quite obvious, others, like riptides, among the invisible mysteries of the ocean.

A handful of other beachside municipalities are taking an opposite tack: With millions at stake in already pending litigation, a few city officials say privately they are forgoing the posting of new warnings for fear it would be tantamount to an admission of responsibility. Some believe that even lifeguard service should be withdrawn if it places the city in a liability position.

Still other beach city officials say they would erect signs, except that topography or other factors make it virtually impossible to put up warnings that would give adequate notice to the millions of annual beachgoers in California.

“On some beaches, you can do that,” said Ronald Johnson, chief deputy city attorney for San Diego. “But we have found that ours get wiped out by tidal action, or they get burned for driftwood fires, or they end up in a fraternity house somewhere.”

“Practicality just makes it impossible,” Johnson said.

But operators of city, county and state beaches, and other California recreational facilities, regardless of how they are responding to the court cases, all agree that the Gonzales ruling and the multimillion-dollar Newport Beach case that relied on it were wrong. Virtually all California public entities are enthusiastically supporting a legislative effort by state Sen. Marian Bergeson (R-Newport Beach) to reverse the Gonzales decision.

Bergeson’s bill, which has received endorsements from Atty. Gen. John Van de Kamp, numerous cities and counties, and the League of California Cities, faces its first test Tuesday before the Senate Judiciary Committee.

Gov. George Deukmejian has not said he will definitely support the measure. But it seems likely that Deukmejian will sign the bill, if it passes, as both the Department of Transportation and the Cabinet-level Resources Agency are strongly recommending his support, said Kevin Brett, a spokesman for the governor.

The 3rd District Court of Appeal ruling in the Gonzales lawsuit, which the state Supreme Court let stand in 1982, essentially erased or severely narrowed a decades-old statutory immunity public entities in California enjoyed from liability for injuries resulting from natural forces over which man has no control. The justices ruled that public entities that have made improvements to recreational areas, or provided services like lifeguards or police protection, assume responsibility to warn about known hazards.

In the Gonzales case, the known natural hazard was strong riptides. In Taylor’s, it was the constantly changing depth of the ocean floor due to sand buildup--a condition, Taylor’s lawyer claims, that had resulted in numerous other shallow-diving accidents over the years.

The powerful lobby that represents California lawyers has made defeat of Bergeson’s bill a top legislative priority this year.

With the same moral fervor that local officials feel in complaining about outrageous claims, lawyers point to the Taylor verdict as a just comeuppance for a city that had shirked its responsibility to protect its citizens and visitors.

Newport Beach had signs, the lawyers point out, prohibiting diving off the pier, glass bottles and dogs on the beach--situations for which past injuries had been few and minor, the lawyers say.

But there were no signs warning about the invisible but dangerous shifting sand bars, despite numerous serious injuries of people who dove into them.

“Now they turn around and they get the newspapers to write editorials about how some clever lawyer has come in and stuck the taxpayers with an outrageous verdict,” said Herbert Hafif, a one-time gubernatorial candidate who represented Taylor. “Sure, I’m a clever lawyer. But it takes a clever lawyer . . . to take 12 biased people and turn them into a fair jury.”

Initially, the Gonzales case got little attention.

After the appellate ruling was handed down, Irwin Gostin, the San Diego attorney who initially filed suit against the city for the Gonzales children and their guardian, said he wrote to the California Trial Lawyers Assn. and asked that they write about it in their newsletter.

“They weren’t interested at all then,” Gostin said.

But the 1984 judgment against Newport Beach for the paralyzing injury to Taylor, now 23, got everyone’s attention, sending shock waves and fears of bankruptcy through local governments all along the coast.

Since the verdict, which Newport Beach is appealing, beach city officials say insurance companies have canceled liability coverage for such injuries, quadrupled rates, written ridiculously high six-figure deductibles into contracts or combined all those steps.

In Orange County, a 14-year-old contract under which the City of Huntington Beach provided lifeguards for Sunset Beach, a mile-long stretch of county-owned coastline just north of the Huntington Beach city limits, was canceled last month in a dispute over who would assume responsibility for injuries.

And the multimillion-dollar lawsuits keep coming in.

Although neither side will talk about the terms or amount of the settlement, another Newport Beach case involving scuba diver Gary Fakhoury, which had been filed before the Taylor case, was resolved just recently. Fakhoury reportedly recovered from his initial paralysis.

The city still faces a $10-million lawsuit brought by Claremont teen-ager Edward Tessier, who also struck his head on a sand bar and is now a quadriplegic.

The State of California faces a lawsuit by 16-year-old Aaron Danton, who became a quadriplegic after diving into a sand bar at Huntington State Beach in August, 1983.

Laguna Beach is facing two multimillion-dollar actions involving serious beach injuries.

Paul Dobyns, a former psychiatric technician who became a quadriplegic after striking his head on the rocky ocean bottom after diving off a rock outcropping in July, 1982, is asking $8 million. And 13-year-old Michael Rombalski, paralyzed after diving headfirst off a large rock at Laguna’s Pearl Street Beach, is asking $25 million.

Many of those suits, city officials complain, probably would never have been filed were it not for the Black’s Beach Gonzales ruling, and the publicity resulting from the huge verdict in the Taylor case.

“I’m convinced that a lot of these cases, especially some of these minor injuries, are filed by people who read about the Newport Beach case in the newspaper,” said Laguna Beach City Manager Ken Frank.

San Diego Deputy City Atty. Johnson said he, too, suspects that the publicity about the Taylor award has inspired other suits. There have been “a few” suits over injuries on city beaches, but none has yet gone to trial, he said.

Although the Gonzales case gave rise to all those multimillion-dollar cases, the Gonzales children and their guardian settled with the City of San Diego for a mere $25,000.

“I don’t think those appellate justices realized the ramifications of their decision,” said Rob Trentacosta, a former assistant San Diego city attorney who is now in private practice.

Bergeson insists hers is not a drastic reform of the law, just a clarification of what the Legislature had in mind when it enacted the natural condition immunity. The justices who handed down the Gonzales decision most certainly misunderstood, she said.

“It has placed the liability problem in a hybrid situation,” Bergeson said.

Since the court ruled that a service like lifeguards, which is intended to protect the public, creates the liability, local governments might be forced to stop providing lifeguard services unless the law is changed.

“Our concern was to try to clarify” legislative intent, Bergeson said. “We are not trying to absolve anyone of responsibility.”

But lawyers, particularly those involved in pending cases, see it much differently.

“They sure love to hide behind those governmental immunities,” said Clete Verlato of Artesia, who is representing the Danton boy in his lawsuit against the state.

There have been so many beach-related spinal cord injuries along the flat strip of beach in Huntington and Newport that nearby Hoag Hospital made an educational film on how they could be avoided.

How, Verlato asked, could there not be a governmental responsibility to warn against the hidden sand bar hazard?

Trial Lawyers lobbyist Terry Terauchi charged that some cities that resist posting warning signs, despite repeated serious injuries, are trying to create the impression that “their beaches are safe havens.”

“When they can put up a sign telling you to curb your dog,” Terauchi said, “but they can’t put signs about the sand bars, it just shows where their priorities are.”

Times staff writers Steven De Salvo and Jerry Hicks contributed to this story.