Beaches in a Quandary Over Injury Lawsuits

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 its potential impact.

Up the coast 60 miles from Black’s Beach, the popular San Diego spot where Theresa Gonzales drowned in a riptide in 1978, San Clemente’s marine safety captain, Lynn Hughes, heard about the case and recommended that warning signs be posted at several spots along the shoreline where submerged rocks are a potential hazard to swimmers.

San Clemente has been fortunate, so far. Unlike many municipalities along California’s 830-mile coastline, it has not yet had to defend itself against a large lawsuit resulting from a swimming or diving accident since the Gonzales ruling. But Hughes’ recommendation seemed prophetic last year, when Newport Beach was ordered to pay $6 million to Claremont resident John Taylor, who was paralyzed after he dove into shallow water near the Balboa Pier.

Now, Hughes has ordered the posting of additional signs, warning bathers in both English and Spanish of the perils of surf bathing--from treacherous rip currents to clearly visible pier pilings.

Regardless of how they respond to the recent court cases, operators of beaches and other recreational facilities in California all feel that the Gonzales ruling and the Taylor judgment, which relied on the former, were wrong. Virtually all California cities and counties are enthusiastically supporting legislation by state Sen. Marian Bergeson (R-Newport Beach) that would reverse the Gonzales decision.

The bill faces its first test Tuesday before the Senate Judiciary Committee.

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 from liability for injuries resulting from natural forces over which man has no control.

The justices said that public entities, such as cities or counties, that make improvements or provide services such as lifeguards or police, assume the responsibility of warning users of the facilities about known hazards.

In the Gonzales case, the known natural hazard was strong riptides. In Taylor’s, it was the continually changing depth of the water, due to sand movement--a condition, Taylor’s attorney said, that had caused numerous other diving accidents over the years.

Many California cities and public agencies that operate beaches are following San Clemente’s example. They are posting, or preparing to post before summer, signs in English and Spanish, and some in Vietnamese, warning of potential dangers.

A few other municipalities are taking an opposite tack, however. With millions at stake in the pending litigation, a few city officials say privately that they are not posting new warnings for fear it would be tantamount to accepting liability.

Other beach cities officials say that topography or other factors make it nearly impossible to put up warning signs that would give adequate notice to the millions of people who use the beaches.

“There is just no way we could warn people,” said Laguna Beach City Manager Kenneth Frank. “Even if we had signs at all 37 public entrances to the beach, somebody would sue us after they entered through the Sand and Surf Hotel.”

Ronald Johnson, chief deputy city attorney in San Diego, agrees. Warning signs can be effective “on some beaches,” he said, but added, “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.”

Bergeson’s bill has been endorsed by Atty. Gen. John Van de Kamp, numerous cities and counties, and the League of California Cities.

Gov. George Deukmejian has not said he will support the measure. It seems likely that he will sign the bill if it passes, however, since the Department of Transportation and the cabinet-level state Resources Agency are urging him to support it, said Kevin Brett, assistant press secretary to the governor.

Bergeson’s bill is not without opposition, though. The powerful lobby that represents California lawyers has made defeating the bill one of its top priorities.

Lawyers point to the Taylor verdict as a comeuppance for a city that they say had shirked its responsibility to protect residents and visitors.

They point out that Newport Beach had signs prohibiting diving off the pier and barring glass containers and dogs from the beach--situations that have caused few injuries--but had posted no warnings about the invisible shifting sand bars that have caused numerous serious injuries to people who dove into the shallow water.

“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, and a gutsy son of a bitch, to take 12 biased people and turn them into a fair jury.”

Initially, the lawsuit over Theresa Gonzales’ drowning got little attention.

Issue Unnoticed at First

After the appellate ruling was handed down, Irwin Gostin, the San Diego attorney who first filed suit against the city for Gonzales’ children and their guardian, said he wrote to the California Trial Lawyers Assn. and asked that the case be mentioned in its newsletter.

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

But the judgment holding Newport Beach liable for the accident that left Taylor, now 23, a quadriplegic, got everyone’s attention. It sent shock waves and fear of bankruptcy through local governments all along the coast.

Since the Taylor award, which Newport Beach is appealing, beach cities officials say insurance companies have canceled liability coverage for such injuries, quadrupled rates, and written six-figure deductibles into contracts.

In a dispute over who would assume responsibility for injuries, the City of Huntington Beach last month pulled out of a 14-year-old arrangement under which it supplied lifeguards to Sunset Beach, the mile-long stretch of county-owned shoreline just north of Huntington Beach. Orange County has since hired a private lifeguard service that has accepted responsibility.

Meanwhile, the multimillion-dollar lawsuits keep coming.

Although neither side will talk about the terms or the amount of the settlement, another Newport Beach case, involving scuba diver Gary Fakhoury, filed before the Taylor case, was resolved recently. Fakhoury reportedly has since recovered from an injury that at first caused paralysis.

Newport Beach still faces a $10-million lawsuit filed last December by Edward Tessier, 17, of Claremont, who also struck his head on a sand bar and also was left quadriplegic.

Suit Against State

The state is being sued by Aaron Danton, 16, who was paralyzed after he dove into a sand bar off Huntington State Beach in August, 1983.

Laguna Beach is named in two multimillion-dollar beach-injury suits. Paul Dobyns, a former psychiatric technician who has been quadriplegic since he struck his head on the rocky ocean bottom diving from a rock at Diver’s Cove in July, 1982, is suing for $8 million. Michael Rombalski, 13, paralyzed after diving head-first from a large rock at Laguna’s Pearl Street Beach, is asking for $25 million.

Officials in the beach cities say most of these suits would never have been filed were it not for the Gonzales ruling and the publicity resulting from the large award 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 Frank.

Johnson, the San Diego deputy city attorney, said that he, too, suspects that publicity about the Taylor award has inspired other suits. There have been “a few” suits over injuries on San Diego 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 San Diego for the relatively low sum of $25,000. That is a bitter irony, perhaps. But lawyers who represented them say the children’s guardian--their mother’s uncle, Jesus Serrano--all along was more interested in the principle than the money.

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

Bill Called Clarification

Bergeson insists that her bill would not be a drastic reform, just a clarification of what the Legislature intended by the original law granting municipalities immunity from liability. The justices who handed down the Gonzales decision most certainly misunderstood that law, she said.

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

Since the court ruled that a service such as lifeguards--though the intent is to protect the public--is what creates the liability, local governments might be forced to stop providing lifeguards unless the law is changed, she said.

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

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

“They sure love to hide behind those governmental immunities,” said Clete Verlato, of Artesia, who is representing Aaron Danton in the Huntington State Beach case.

Verlato said there have been so many spinal injuries along the flat strip of beach at Huntington and Newport that nearby Hoag Hospital has produced an educational film on how such accidents can be avoided.

How, Verlato asked, could there not be governmental responsibility for warning the public against the hidden sand bars?

Trial Lawyers’ lobbyist Terry Terauchi said that some cities that resist posting warning signs, despite the occurrence of serious injuries, may be trying to create an impression that “their beaches are safe havens.”

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

One thing is certain: Unless Bergeson’s bill is successful, beach cities will continue wrestling with questions about how to best limit their liability.

In Huntington Beach, signs warning of all kinds of beach hazards will be posted in Vietnamese, English and Spanish, for the first time this summer. Moreover, if City Atty. Gail Hutton has her way, the concrete fire rings that dot the beach will be removed.

The city has been named in two large lawsuits on behalf of small children who fell into beach fires in the pits. One, involving a 4-year-old Arizona boy, was dismissed in the city’s favor. Another, involving a 10-year-old Fullerton girl, is pending.

So far, city recreational officials are not convinced that beaches will be safer without the fire rings.

“If we didn’t have fire rings at all,” said Doug D’Arnall, the city’s beach services manager, “then we’d have fires all over the beach that we couldn’t control. . . . There is no doubt in my mind.”

The warning signs, D’Arnall believes, probably help little, other than to reduce civil liability.

“Look, nobody is trying to kid anybody,” he said, “the beach is a dangerous place.”