Hazardous Recreational Activities
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Risk Management Bulletin SISC Hazardous Recreational Activities Background/Definitions The purpose of this document is to express and Please keep in mind that this information explain SISC II’s position with respect to pertains to hazardous recreational activities member districts engaging in “hazardous only. It is not meant to cover activities such as recreational activities.” regular field trip activities, traveling in general, traditional sports programs (although many The significance of this issue stems from the involve contact), or traditional P.E. programs. definition itself: hazardous recreational activity is defined in Government Code Section 831.7 Hazardous recreational activities are likely as a “recreational activity conducted on to hurt people – that makes them worth property of a public entity which creates a careful evaluation. SISC does not substantial (as distinguished from a minor, recommend that districts undertake and/or trivial, or insignificant) risk of injury to a sponsor any activity that is considered a participant or a spectator.” “hazardous recreational activity.” Activities that are listed specifically in the code Immunity include: animal riding, including equestrian Public entities have statutory immunity for competition, archery, bicycle injuries arising out of participation in a racing or jumping, mountain hazardous recreational activity. This immunity bicycling, boating, cross- provides that “neither a public entity nor a country racing, off-road public employee is liable to any person who motorcycling or four- participates in a hazardous recreational wheel driving of any activity…for any damage or injury to property kind, orienting, pistol and or persons arising out of that hazardous rifle shooting, rock recreational activity.” However, there are climbing, rocketeering, rodeo, circumstances that limit this immunity; spelunking, sky diving, sport therefore, it is important for the district to parachuting, paragliding, body contact sports protect its interest. (i.e., sports in which it is reasonably foreseeable that there will be rough bodily The intent of the code and attending cases contact with one or more participants), surfing, appear clear, the immunity is afforded when trampolining, tree climbing, tree rope swinging, someone voluntarily engages in a hazardous waterskiing, water contact activities, diving recreational activity on the public entity’s from other than a diving board, white water premises. There is a clear lack of case law that rafting, and windsurfing. would support the district having immunity for an off-premises club activity. A Joint Powers Authority administered by the Kern County Superintendent of Schools Office, Christine Lizardi Frazier, Superintendent Further, school sponsored or school supervised these issues serve as measures that can events conducted on school property have been eliminate immunity. held to fall outside the scope of the immunity, i.e. sports activities, physical education classes, School-sponsored Activity. One of the first etc. issues involves whether the activity is considered a “field trip or excursion” or a This then brings up the question – what kind of “school sponsored activity.” This liability is there for engaging in a hazardous determination identifies which immunity recreational activity off-premises and what are section prevails. Field trip immunity is the immunities available (if any)? This absolute and, therefore, the district would enjoy question leads to Education Code 44808, which immunity. However, it is questionable whether in essence provides immunity to school a surfing club would be considered as a field districts for injuries occurring off trip or excursion. The Castro court noted that a school property. One case in ““Field trip” is defined as a visit made by particular, Wolfe v Dublin students and usually a teacher for purposes of Unified School District first hand observation (as to a factory, farm, concluded that section clinic, museum). “Excursion” means a journey 44808 “grants a district chiefly for recreation, a usual brief pleasure immunity unless a student trip, departure from a direct or proper course, was (or should have been) or deviation from a definite path.” directly supervised during a specified undertaking.” From this definition, it could be easily argued that the ongoing activities of the club would not Education Code 35330 (field trips) provides qualify as a field trip; therefore, it is unlikely school districts with immunity for injuries that the district would have immunity under Ed. arising out of a field trip or excursion. In Code 35330. The provisions of Ed. Code Castro v Los Angeles Bd. of Education the 44808 would still provide immunity (for off- court explained that it is the voluntary nature of premises activities) if the club were not district the activity that distinguishes liability and that sponsored. The off-premises immunity it is the voluntary nature of the event that provided under section 44808 is eliminated absolves the district from liability. This section when the district sponsors the activity and is controlling over the more general provisions assumes responsibility (supervision) of the of section 44808 above. However, the court participating students. also noted the difference between “field trip or excursion” and “school-sponsored activity”. Whether an activity is a “school-sponsored” This difference can threaten immunity. activity also bears to the available immunity under Gov Code 831.7 (relating to hazardous Threats to Immunity recreational activities). In Acosta v Los Although the above code sections outline Angeles Unified School District immunity that school districts have available, the court held that, as a matter of there are many issues that can undermine or law, “hazardous recreational eliminate that immunity. Such issues include: activities” do not include whether an activity is a school-sponsored school-sponsored activity, whether the district transports students extracurricular activities under to and from the activity, whether the district the supervision of school assumes responsibility for the students during personnel. In other words, off- the activity, and whether a known dangerous season sport practices that are conducted with condition is guarded or warning given. All of the coach present, or after-hour practices with a coach present, or any after-school sports RMB-12 2 programs that are supervised by school substantial risk of injury and because of the personnel are not considered hazardous issues that so easily eliminate immunity, SISC recreational activities under the law and does not recommend that districts undertake therefore, the district would have no immunity. and/or sponsor any activity that is This is not to suggest that districts avoid after- considered a “hazardous recreational hours practices; they should however do so activity.” knowing they are responsible for the safety of the students. Application of Waivers and Releases However, we do acknowledge that some Transportation. Whether districts choose to undertake such activities in the district provides spite of the increased risk. In these cases transportation to an “assumption of risk” waivers are used in an activity is another measure attempt to mitigate liability. These waivers do in determining if immunity have some limited effectiveness, but it should shall be provided. In be understood that waivers will not provide Ramirez v Long Beach complete protection in all circumstances. In Unified School District the fact, if not carefully crafted and properly court determined that the implemented, a waiver may provide no school district was not responsible for the death protection at all. It is for this reason that of a student while at a leadership camp. One of waivers are not our first choice for risk the determining issues was that the district did management with respect to hazardous not transport the students to the camp nor recreational activities. assume responsibility for them while participating. Therefore, when a district SISC does have a model provides transportation to an activity it can be Voluntary Activities argued that the activity becomes a school- Participation Form, which can be sponsored activity and the district becomes modified for specific activities. It can be responsible for the safety of the students. downloaded from our website at: However, this is only one argument, transportation alone will not be the determining http://sisc.kern.org/safetyandlosscontrol factor. From the department page, select Forms from Supervision. As with the transportation issue, the menu on the left. when the district assumes supervision of the students the immunity provided under Ed. Code Responsible Risk Management 44808 is removed and the district becomes Risk is part of life and learning, and avoiding responsible for the safety of the risk as an outright strategy is often not practical students while the students are, or recommended. However, for public schools, or should be, under the with respect to hazardous recreational activities immediate and direct risk avoidance is the most appropriate strategy supervision of a district in the majority of cases. employee. The functions of a club advisor include: supervising, directing, and In other cases, SISC II does acknowledge that coordinating the activities of the students. hazardous recreational activities may be From these functions, approved by the structured so as to protect the immunities district, comes the responsibility for the available