Committee OKs Bergeson Bill to Protect Cities : Beach Liability Shield Gains Momentum

For the third time in three years, a coalition of California coastal cities is trying to gain protection from lawsuits prompted by deaths or injuries in accidents on the beaches.

But for the first time, the move to overturn a 1982 state appellate court decision appears to be gaining the momentum it needs to win passage in the Legislature.

A bill by Sen. Marian Bergeson was approved June 9 in the Senate Judiciary Committee, which killed similar bills authored by the Newport Beach Republican in 1985 and 1986.

Bergeson’s bill is backed by the Coalition for Safe Recreation, which has hired Sacramento lobbyist Dennis Carpenter for $40,000 this year to help lead the bill through the legislative process. Opposition to the legislation comes primarily from the California Trial Lawyers Assn., a powerful group that fights efforts to limit damage awards or the right to file lawsuits.

At issue is whether governments should be held responsible for accidents on public beaches or other recreation areas when they provide services such as lifeguards and rangers or post signs warning of the dangers.

Governments have long enjoyed immunity from liability for deaths or injuries on public land left in its natural condition. Without such protection, it is argued, governments would close off land that presented a danger of any kind rather than risk lawsuits that can lead to multimillion-dollar awards.

But a 1982 court ruling against the City of San Diego changed things. In that case, the 4th District Court of Appeal found that the city altered the “natural condition” of the beach when it provided lifeguard service and therefore lost its automatic immunity. If the lifeguards were found to be negligent, the court found, the city could be liable even though a woman’s drowning was caused primarily by a natural condition, in this case a riptide.

In a Newport Beach case two years later, the courts again ruled that the city had lost its natural immunity by adding public services at the beach and held the city liable for injuries to a man left paralyzed after a dive in shallow water near the Balboa Pier.

After the second case, in which the victim was awarded $6 million in damages, public entities along California’s 840-mile coastline began posting signs warning of dangerous conditions. Some did not, fearing that any recognition of such dangers would make them liable for damages. But nearly all began looking for relief from additional lawsuits based on the San Diego and Newport Beach rulings.

Bergeson first tried to help in 1985, when she introduced a bill to overturn the San Diego decision and exempt governments from all lawsuits arising from injuries caused by natural conditions, no matter what the complicating factors. That bill ran into strong opposition from trial lawyers and died quickly in the Senate Judiciary Committee.

The next year, Bergeson tried again to overturn the principle at the heart of the San Diego ruling, this time adding a provision that made governments liable for death or injuries caused by the negligence of their employees, such as lifeguards. That bill fell one vote short of passage in the same committee.

Now Bergeson is back with a third bill that again would extend the natural-condition immunity to cases where cities provided lifeguards or warning signs. This time Bergeson’s bill states explicitly that injured parties would still be able to sue if the government “willfully or maliciously or with conscious disregard” fails to warn people against a known dangerous condition.

The Judiciary Committee approved Bergeson’s bill on a 6-3 vote, with three Democrats, including Senate President Pro Tem David Roberti of Los Angeles, joining the committee’s three Republicans in favor of the bill. The bill now goes to the full Senate and, if approved, to the Assembly for another tough committee hearing.

“What we’ve done is overturn Gonzales,” Bergeson said, referring to the San Diego case that prompted the entire controversy. “This was something we didn’t feel we could get through the committee. It was a major concession on their part.”

The opposition from the trial lawyers this time was based on what level of negligence plaintiffs should need to show before they are allowed to sue the government. Bergeson’s bill said governments would have to have exercised “conscious disregard” in failing to warn the public about a dangerous condition. The trial lawyers preferred the term “reckless disregard,” which is considered easier to prove.

“It’s very unlikely that a city would sit down and have a meeting and take minutes where they would decide that there was a dangerous situation and they were going to consciously disregard it,” said Nancy Drabble, legislative counsel for the California Trial Lawyers’ Assn. “More commonly, there would be a dangerous condition, and they would get complaints, letters, notice about it and not do anything. And there would be more injuries and deaths. That would be recklessly disregarding a known danger.”

But even the tougher-to-prove standard of negligence preferred by Bergeson makes some city officials nervous. An attorney for the City of San Diego said he would rather take his chances with current case law than open up the new area of liability now included in the legislation.

Chief Deputy City Atty. Ronald L. Johnson Sr. said there are many hazards that the city knows of but about which it cannot warn effectively. Sand bars shift, and riptides change their location, he said.

“Do you put a sign up at the entrance to the city saying ‘watch for riptides in the ocean?”’ Johnson asked. “I don’t know how you comply with that burden. I’m not sure this bill helps.”

But other coastal city officials say any change that buttresses the long-held natural-condition immunity would be an improvement. They argue that even if the cities win these cases, the legal costs to do so can run into the hundreds of thousands of dollars. The immunity Bergeson is seeking to strengthen allows judges to throw the cases out before they even get to trial.

“What we originally wanted was very simple,” said Laguna Beach City Manager Kenneth C. Frank, spokesman for the coalition. “It just said if you provide lifeguard service you don’t lose the immunity you normally have for public property in its natural condition. What we have now is something intended to be a compromise between the cities and counties and the trial lawyers.”

Seal Beach City Manager Robert L. Nelson, who also dealt with beach issues in his former job as city manager of Del Mar, said cities should not lose their legal protection simply because they provide lifeguards. But if the negligence of those lifeguards causes injuries, the cities should suffer the consequences, he said.

“We are making a conscious effort to recognize that we must be responsible for our own acts when they are our own acts,” Nelson said. “We have a responsibility in providing lifeguard services to provide a quality service. For that we should be liable.”