LOS ANGELES (Legal Newsline) - The California Supreme Court denied review of an appeals court decision that could prevent lifeguards from driving their jet skis at more than idle speed in pursuit of drowning swimmers, urging the state legislature to fix a “latent ambiguity” in the law.
Numerous municipalities asked the state’s highest court to overturn a decision by the Fourth Appellate District decision applying the 5 m.p.h. speed limit – the speed of a jet ski at idle – to city-owned watercraft. State law includes an exemption from the speed limit for “subdivisions” of the state, but the appeals court said that applies to counties, not cities.
Critics of the decision argued that exposing city lifeguards to lawsuits if they exceed the speed limit or fail to equip their craft with flashing blue lights will put swimmers at risk of death. In a statement accompanying the high court’s decision not to hear an appeal, California Supreme Court Justice Joshua Groban and three other judges urged the legislature to correct the law.
“It will be of little comfort to the next swimmer or surfer in peril to learn that the most effective means of saving him or her is unavailable due to a latent ambiguity” in state law, the judge wrote in a Nov. 10 statement. “I urge the Legislature to address this ambiguity forthwith.”
The Fourth District decision revived a lawsuit by Michael Ramesh Haytasingh, who was partially paralyzed after diving off his board in shallow water. The surfer claimed he was scared by a City of San Diego lifeguard who cut him off with her jet ski. The lifeguard said she was never closer than 10 or 20 feet to the surfer.
San Diego argued it was immune from negligence lawsuits under a state law covering people engaged in a “hazardous recreational activity.” The trial judge agreed the law applied, but allowed the plaintiff to sue under an exemption for gross negligence. To try to prove gross negligence, plaintiff lawyers wanted to argue the lifeguard violated the 5 m.p.h. speed limit in the state Harbors and Navigation Code, but that law includes a carveout for “subdivisions” of the state. Counties, cities and other municipalities are commonly described as political subdivisions.
The jury ruled against the plaintiff, and he appealed. In a lengthy decision, the Fourth District held that the trial judge erred by refusing to allow plaintiff lawyers to tell the jury the speed limit applied to the San Diego lifeguard. (State law also requires watercraft engaged in public safety activities have a blue light, although municipal safety officials said that may not be feasible for jet skis.)
The decision found that while cities like San Diego are considered political subdivisions, the California Constitution only mentions counties with that specific term. The majority acknowledged this was an odd conclusion, since lifeguards in a small county might be able to drive their jet skis above idle to rescue a drowning swimmer while lifeguards for a large city like San Diego could not.
The language of the law “appears to a create a puzzle for which there is no single satisfactory answer,” the appeals court concluded, but “it is reasonably probable that a result more favorable to the plaintiffs would have occurred if the trial court had instructed the jury with an accurate statement of the state’s vessel speed law’s application.”
The four-judge panel of the state Supreme Court agreed that the case wasn’t appropriate for review. But in his statement, Justice Groban, acknowledged the pleas of municipal safety officials to fix any ambiguities in the law.
As those safety officials explained, “such a limitation on lifesaving personal watercrafts, which regularly operate in rough surf in an attempt to rescue bathers who are in grave danger, imperils public safety,” the judge wrote.