Legal Tide Has Changed for Ocean Injuries

At dusk one evening about five years ago, Gary Decker went surfing off Imperial Beach in San Diego. Soon after he entered the water, his surfboard leash got tangled in a lobster trap.

San Diego County sheriff’s deputies and Imperial Beach firefighters hurried to the shore. An announcement by bullhorn was made from the beach, telling the 19-year-old Decker “help was on the way.”

Help never arrived.

Officials on the beach, in fact, ordered would-be rescuers to stay on shore and not attempt a rescue. Lifeguards only minutes away were not called.

A helicopter did arrive and hovered over Decker for 15 to 20 minutes, shining a bright light on him. Eventually, a helicopter rescue was rejected.

About the time the sheriff’s dive team tied a rope around one diver’s waist and anchored that line to shore while the diver waded into the surf, Decker’s leash became disentangled and he floated to shore, unconscious. All attempts to revive him failed, and he was pronounced dead at a local hospital.

Gary Decker’s father sued Imperial Beach, complaining of negligence and wrongful death.

“It was a waste of a young boy’s life,” Glenn Decker said in a phone call last week.

The city responded that it was immune from liability.

In a recent decision, a state appellate court said the city was right.

Millions of Californians will descend on the beach this summer, and some will drown, some will encounter dangerous marine life and others will break their necks diving onto submerged rocks. The Decker case is a dramatic illustration of the way the tide has changed for the survivors of those accidents.

The ebb and flow has taken less than 20 months. Before the end of 1987, it was reasonable to expect that a beach liability suit against a local government might be successful, yielding not just medical expenses but millions of dollars, lawyers who specialize in the cases say.

That trend reached its peak in 1986, when a jury ordered the city of Newport Beach to pay $6 million to a Claremont teen-ager paralyzed in a surfing accident.

But revised state laws and key court decisions, one of which is the Decker ruling, mean that those injured at the beach now face almost insurmountable barriers in getting city hall to pay their bills.

Since the turnabout, attorney David Casselman’s law firm in Tarzana, in the San Fernando Valley, has defended 13 cases brought against public agencies, primarily injured swimmers or divers suing Los Angeles County or Newport Beach, Casselman said. He has not lost one.

“The law has so dramatically shifted that I tell lawyers who bring these new cases now, ‘Carefully consider the expenses you will have to incur to bring these cases to trial because the climate in the court system is dramatically against you,’ ” Casselman said.

Defense lawyers maintain the changes in the laws and in court attitudes were a welcome correction.

” . . . In a trial setting, I’m sitting there with a code book (that says) I’m not liable,” San Diego Assistant City Atty. Ron Johnson said. “I’m sitting there facing a judge and a jury with a quadriplegic who’s a nice guy, who everyone feels sorry for, and the courts had started whittling away at (the city’s) immunity to the point where there was none.”

Newport Beach City Atty. Robert Burnham said the “current state of the law is a pretty good balance of the policy issues involved.”

But plaintiffs’ lawyers say the state of the law reflects an ominous trend.

“What I feel is that we’re seeing a cooling of the courts’ willingness to support an individual’s claim against the corporate world, whether it’s a municipality or a business,” said W. Lee Hill, the San Diego attorney who represented Glenn Decker.

Another San Diego attorney had the chance to dwell on the changes in beach liability while he was surfing in 1987. Like Gary Decker, Don Vaughn’s leash became entangled in a lobster trap. Vaughn finally freed himself--after four hours of clinging to his surfboard in the dark--and swam to shore.

Vaughn said he did consider a suit against whoever owned the lobster trap. But “everyone knows these lobster fishermen have no insurance coverage,” he said.

He said his new approach to surfing has nothing to do with law. “I can tell you I don’t wear (a surf leash) anymore,” he said. “My new motto is, ‘I would rather swim than drown.’ ”

For years, beach liability was a non-issue. In 1963, the state Legislature passed a law that said cities, and their employees, were to be absolutely immune from injuries caused by a “natural condition” of any “unimproved public property.”

The policy behind the law was basic economics. Without immunity, governmental entities would be motivated simply to keep people off beaches, and certain other public lands, rather than incur the costs of making the property safe and defending injury claims.

For about 20 years, California courts were faithful to the intent of the law. Then, in a case that also began off another San Diego-area beach, the courts took a sharp turn away from immunity.

In June, 1978, Theresa Gonzales drowned in a riptide off Black’s Beach in La Jolla. Her children sued the city of San Diego, which provided lifeguard and police protection at the beach.

A San Diego Superior Court judge dismissed the wrongful-death suit, saying the city was immune under the 1963 law. But in 1982, the 4th District Court of Appeal in San Diego, an intermediate state appellate court, reinstated the suit.

The Pacific Ocean and the beach assuredly were “unimproved,” but the city had destroyed the “natural condition” by providing lifeguards, the court said. Once the city took that duty upon itself, it had to do the reasonable thing and put up a sign warning of the riptide, the three-judge panel said.

Since the city hadn’t posted a warning, the suit could go forward, the court ruled.

Eventually, the Gonzales suit settled for $25,000, said Johnson, the assistant San Diego city attorney. But the suit prompted some cities to post warning signs in several languages about all kinds of beach hazards--from riptides to clearly visible pier pilings. Others resisted, fearing that to post signs would make them appear to admit liability in pending suits.

As for the underlying decision about supplying services, the cities similarly felt they were “damned if you do, damned if you don’t,” said Burnham, the Newport Beach city attorney.

“If you provided services, even if they were beneficial, you lost your immunity,” Burnham said. “Then if you had not provided services, a number of people may have been hurt without those services.”

Meanwhile, the cases kept coming, the plaintiffs arguing that the local government had led them to feel safe because some signs were up or some protective measures were taken. Estimates of the number of cases are not available, but there were enough so that by 1986, only four years after the Gonzales opinion, an appellate court said the rule from that case was “well-established.”

The most significant case, lawyers said, was the 1984 jury verdict against Newport Beach for $6 million.

John Taylor, a Claremont teen-ager, was paralyzed after diving into shallow water and striking his head on a sandbar. He successfully argued that Newport Beach should be liable because warning signs had said nothing about sandbars.

The Taylor verdict, though stunning, was largely covered by insurance, since it was rendered before commercial liability policies became too expensive for most California cities, Burnham said.

“In the Taylor case, we had coverage for everything in excess of $100,000, (including) attorneys’ fees,” Burnham said. Today the city is self-insured, except for a policy on its police helicopter, and a $6-million verdict would “amount to two years of our liability reserve,” he said.

Dan Harrison, research and information director at the League of California Cities in Sacramento, said “very, very few” cities have commercial policies today and are either self-insured or belong to insurance pools, he said.

Prodded by municipalities’ insurance concerns and by publicity from the Taylor case, the Legislature in 1987 restored immunity. Specifically abrogating the Gonzales rule, it added a law saying that as of Jan. 1, 1988, beaches would be considered in a “natural condition,” even if a local entity has posted signs or provided lifeguards.

The courts came around about the same time. In a key December, 1987, decision, another state appeals court, in Los Angeles, ruled in a case from Santa Monica that it was not going to follow the Gonzales case, finding it was inconsistent with the “plain meaning” of the original law.

The state Supreme Court has never considered the issue. Because the new law effectively repealed the Gonzales case, it probably never will, lawyers said.

And until it does, the 1987 ruling, called the Geffen decision, gives defense lawyers a case to cite, not just what could be portrayed as an untested law on the books.

The Legislature, meanwhile, gave the defense side even more help with another, related law. This one, enacted in 1983, says that neither cities nor their employees are liable to anyone who takes part in a “hazardous recreational activity.” Among the “hazardous” activities it lists is surfing.

“As a surfer, as soon as you enter the water, you’re in a sense entering the food chain, so there’s a lot of assumed risk in surfing,” said Ira Opper, who produces and directs a weekly cable television surfing show from Del Mar. “When you’re in the water, you’re out there by yourself, and you should be able to handle it.”

The Decker case was among this law’s first significant appellate tests, particularly because its central issue had to do with the law’s escape valve.

The law says a city loses its “hazardous activity” immunity if it acts with “gross negligence.” The courts define that to mean an “extreme departure” from ordinary conduct.

In its decision this April, the 4th District panel ruled, 2-1, that none of the events on the beach connected with Gary Decker’s death fell under that definition.

Failing to call for off-duty lifeguards in the area was not “gross negligence” because failing to pursue an option that may or may not have worked is not enough, Justice Daniel J. Kremer said for the majority.

Wayne J. Austero, the Newport Beach lawyer who won the $6-million verdict, said all hope is not lost for injured swimmers and surfers. But the facts have to be just right, he said.

“Assume you have a bunch of sharks out there, the ‘Jaws’ syndrome,” he said. “And (city officials) know there’s a bunch of sharks out there eating people and little children. And they don’t warn people. Are they liable? . . . Maybe they are. Maybe they aren’t.”

Given that it may take a scenario that egregious to impose liability, however, the cities are feeling much more comfortable.

“Understandably, the injured parties are extremely frustrated about the fact that a few years ago they were free to present their cases to a jury but that now they’re barred from recovery,” Casselman said. “But in the interests of the public, it has to be said that public entities should act for the overall good rather than the benefit of one or a few individuals.”

Where that leaves the “human aspect,” as the judge who dissented in the Decker decision called it, is plainly second-best.

Justice Howard Wiener, who cast the lone dissenting vote as a member of the three-judge panel that ruled on the Decker case, said he would have ordered a trial on the “gross negligence” issue. He added: “I cannot leave this case without admitting that I will remain haunted by the specter of this young man’s lengthy, unsuccessful struggle against the power of the sea, fighting to stay afloat, emotionally assisted by what can only be described as a callous call from the beach that ‘help was on the way.’ ”