Metropolitan News-Enterprise


Monday, July 10, 2006


Page 1


C.A. Holds Park District Immune in Drowning Death of Swimmer




A park district cannot be held liable for the death of a young swimmer who drowned after lifeguards had finished their workday and left for the evening, the First District Court of Appeal has ruled.

In a June 13 opinion, which was certified Thursday for partial publication, Div. Two affirmed Alameda Superior Court Judge Steven Brick’s grant of summary judgment in favor of the East Bay Regional Park District, holding that it is immune from liability for the death of Jason Perry, who was 14 when he died in 2002.

The district is responsible for the Temescal Regional Recreational Area in Oakland, which is located along Lake Temescal and includes a public beach and swimming area which slopes to a depth of 20 feet.

Swimming is permitted from April to October. Lifeguards are on duty from 11 a.m. to 6 p.m. during those months, and a fee is charged to swim during those hours.

Those who wish to swim outside of those hours are not charged a fee and are warned that no lifeguard is on duty.

Off Duty

Testimony offered with regard to the summary judgment motion showed that Jason and his stepbrother were swimming with some other children in the evening hours of June 16, 2002. Lifeguards went off duty at about 6:30 p.m. after announcing several times—using a voice gun, an amplifying device more powerful than a megaphone—that they were leaving and that swimmers who remained did so at their own risk.

The head lifeguard, Jennifer O’Shea, said a little girl knocked on the door of the lifeguard station at about 7 p.m., after O’Shea had changed into street clothes and the other lifeguards had gone. After notifying emergency personnel, O’Shea testified, she rushed to the beach, inquired of people there where Jason was when last seen, and joined divers in a search.

Jason was discovered on the third or fourth dive, but O’Shea said he was not breathing and that she could not find a pulse. A park ranger attempted CPR until paramedics arrived; Jason was taken to a hospital and pronounced dead a little before 8 p.m.

In response to the suit by Jason’s parents, the park district asserted that it was immune under Government Code Sec. 831.7. The statute immunizes public entities and their employees from liability for “hazardous recreational activities” conducted on public property.

Exception Inapplicable

Hazardous activities are defined to include water sports that an individual participates in at a time when lifeguards are not provided and the person either has received a “reasonable warning” or “should reasonably have known” there were no lifeguards.

The Perrys asserted that an exception to the immunity, set forth in Sec. 831.7(c)(2), applied. The exception allows a finding of liability “where permission to participate in the hazardous recreational activity was granted for a specific fee.”

The parties disputed whether Jason had paid the “swim fee” that day. But that did not create a triable issue of fact, Presiding Justice J. Anthony Kline wrote for the Court of Appeal, because even if the fee was paid, it only covered the period during which the lifeguards were on duty.

Kline cited the park map, which expressly said that a fee was charged “for swimming when lifeguards are on duty” as well as the deposition of the park ranger, who testified likewise.

“We agree with the trial court that the language of the statute makes plain that, for the exception to be applicable here, we would have to find that the Park District charged Jason a specific fee to swim without a lifeguard present, a fact belied by the evidence in the record,” Kline wrote.

In an unpublished portion of the opinion, Kline said the plaintiffs had waived a claim that an exception to the immunity statute permitted them to sue the district for having failed to warn Jason of a dangerous drop-off that may have misled him into underestimating the depth of the lake. The issue was not raised in the trial court, Kline said.

In another unpublished part, Kline rejected the argument that the “gross negligence” exception to the immunity statute applied.

The argument, Kline explained, was based on the contentions that O’Shea should not have taken the time to change into her swimsuit bottoms before rushing to the scene, wasted time calming down a woman at the scene before entering the water, and should not have allowed the other lifeguards to leave while there were still people in the water, even though it was 30 minutes past the end of the posted lifeguard hours.

None of that conduct amounted to gross negligence, the presiding justice said.

Kline also rejected the argument that the district could be found grossly negligent because it owed Jason a heightened duty of care based on his age, gender, and race. As a teenage male and an African American, the plaintiffs argued, he was statistically at greater risk of drowning.

“[P]laintiffs presented no evidence that a 14-year-old boy would be unable to understand the multiple oral and written warnings regarding the risks of swimming without a lifeguard present or the inherent risks of swimming generally,” the jurist reasoned.

The case is Perry v. East Bay Regional Park District, 06 S.O.S. 3520.


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