Compromise to Get Cities Off the Hook : Beach Liability Loophole Close to Being Closed

The long battle by California coastal cities to escape liability for certain accidents on public beaches moved a step forward Tuesday with the disclosure here of a wide-ranging compromise affecting several public liability issues.

The compromise, reached between the California Trial Lawyers Assn. and local government officials, includes a provision that would overturn a 1982 state appellate court decision that made it easier for accident victims or their heirs to pursue lawsuits against agencies that control the state’s public beaches.

That ruling, in a San Diego case, and another decision two years later stemming from a Newport Beach accident, limited the government’s longstanding immunity from responsibility for accidents caused by land left in its “natural condition.” By providing some protection, such as lifeguard services and warning signs, cities had altered the land’s condition and therefore could be held liable even if the accidents in question were caused by nature, the courts ruled in those cases.

After $6 million in damages was awarded in the Newport Beach case, local officials complained that they would be in better legal standing if they provided no protection at all on the beaches: Courts would then have no choice but to rule that the land was left in its natural condition.

Petitioners Pleased

“We’re really pleased that this is part of the overall package,” said Kenneth Frank, Laguna Beach city manager and spokesman for a group of coastal cities and counties that has pushed to restore the public’s immunity to its former level. “I wasn’t sure we’d ever get to this point.”

Ron Johnson, chief deputy city attorney for San Diego, said the language would return governments to where they were before San Diego lost the 1982 case, Gonzales v. the City of San Diego, which stemmed from the 1978 drowning of a woman in a riptide at Black’s Beach.

“This puts the immunity back where it was before and where it ought to be,” Johnson said.

Sen. Marian Bergeson (R-Newport Beach) has been trying for the past three years to win passage of legislation overturning the Gonzales case. The trial lawyers, who represent plaintiffs and have thus far opposed efforts to limit court judgments, helped kill Bergeson’s bill in 1985 and 1986.

But this year, Bergeson was able to move her legislation through the Senate. The measure is scheduled to be heard in an Assembly committee after the Legislature returns from its summer recess next week.

Backers of Bergeson’s bill said the compromise disclosed Tuesday is even better for cities and counties than the language Bergeson was forced to accept in order to win Senate passage of her bill.

Could Still Have Sued

While overturning the Gonzales decision, Bergeson’s bill as it was approved by the Senate stated explicitly that injured parties would still be able to sue if the government “willfully or maliciously or with conscious disregard” failed to warn people against a known dangerous condition. That statement, which some government lawyers feared would do them more harm than good, was dropped as part of the negotiations over a number of liability issues that were included in the package.

The proposed new language states simply that “public beaches shall be deemed to be in a natural condition and unimproved, notwithstanding the provision or absence of public safety services such as lifeguards, police or sheriff patrols, medical services, fire protection services, beach clean-up services or signs.”

If enacted, that language will make it easier for governments to have cases dismissed by a judge before they are even heard, on grounds that the law holds them immune from liability, experts agree. Taxpayers would still be liable for harm done by government employees who act negligently.

Bergeson, who has amended her bill to reflect the new language, said she intends to continue to move her measure separately so that it will be available should agreement over the broader package unravel. But with the trial lawyers’ support, the package is expected to have little trouble in the Legislature.