Commentary : Public Liability and Public Safety

In October, 1984, cities, counties and other municipalities became alarmed when an Orange County jury awarded $6 million to a young man from Claremont who became paralyzed when he hit his head on a sand bar at Newport Beach after diving into the waves without first checking the ocean floor.

The continuing impact of decisions such as this one on the taxpaying public is outrageous.

With startling frequency, governmental entities are finding themselves forced to defend lawsuits involving injuries that result from individual carelessness or negligence, coupled with the presence of potentially hazardous natural conditions on property in an undeveloped state.

In Los Angeles County alone, five beach-related lawsuits very similar to the Newport Beach case are pending right now.

One problem that cities face in successfully defending these cases is sympathy for the plaintiff. The injured victim is present in thecourtroom as the jury is asked to determine whether the municipality is responsible for his or her injuries--for hisor her “damaged life.” Very often, theresult is thousands of dollars in out-of-court settlements or millions of dollars in jury awards at the end of trial.

In any case, it is the taxpayer at large who pays. Municipalities are, after all, financed by the taxpayers (a fact that juries are not allowed to be reminded of during trials).

The question at issue is whether a city providing public safety services such as lifeguards at its beach should forfeit its immunity from liability by the mere provision of those services.

Unfortunately, the Newport Beach case and the case that set the precedent for that decision (known as Gonzales) have threatened the immunity provisions of existing law. In each of those cases, the juries found that the city was responsible because it had provided public safety services (therefore, the property was found not to be in a totally “natural condition” and thus could not qualify for the immunity) and because it had failed to warn the public of the existence of natural conditions of the property, such as sand bars and riptides.

The voters very clearly expressed their views about some forms of liability through the passage of Proposition 51, which limits responsibility for non-economic damages to the degree of actual fault.

Yet it remains to be seen what prospects remain for tort reform in the broader sense. The prognosis would be more optimistic were it not for the strong influence of the California Trial Lawyers Assn. in Sacramento. These are the lawyers who represent the claimants in these cases, and whose fees are a percentage of the awards.

This session, I introduced legislation to give municipalities the freedom to do whatever is necessary to protect the public safety--without fear of abrogating the immunity protections in existing law--so long as the provision of public safety services did not add to the public’s risk in using the property.

The legislation was narrowly drawn. We met numerous times with Trial Lawyers Assn. representatives to seek compromise wording.

Yet, the Trial Lawyers Assn. continued to strenuously oppose the legislation, and it was defeated. The California Trial Lawyers Assn. is an active participant in the election-campaign process, and many of my colleagues are facing reelection challenges this election year.

Clearly, without legislation such as Senate Bill 1694, municipalities may very well decide not to provide public safety services. Or they may close property to public access. Recreational opportunities for the public are in jeopardy.

It’s time for the taxpayers to demand a return to common sense in our courtrooms and in Sacramento.

Individuals using recreational property such as beaches, streams, backwoods hiking trails, etc., must take responsibility for their own actions and must themselves employ common sense in their recreational activities. The severity of the accidents that can and do occur is sobering, but so are the consequences for the taxpayer if special interests in Sacramento continue to block common-sense reform of our liability statutes.