VENTURA, Calif. (Legal Newsline) – It wasn’t Santa Barbara’s fault that a 30-year-old man who couldn’t swim drowned in its harbor because he was participating in a hazardous recreational activity, a California appeals court has ruled.
On Jan. 4, the Second Appellate District affirmed a trial court ruling in favor of the City of Santa Barbara, which is responsible for the regulation and administration of Santa Barbara Harbor.
It was there in April 2017 that Davies Kabogoza drowned while stand-up paddle boarding. His estate sued the city, which said it was entitled to government immunity. The plaintiff said exceptions applied because of gross negligence and failure to warn.
“The risk of falling off a stand-up paddle board and drowning in a harbor is inherent in that type of hazardous recreational activity,” Justice Steven Perren wrote.
“As the trial court observed, ‘(t)here is no evidence showing that (paddle boarders) are not aware of the dangers of choppy water or inclement weather and the risk of drowning in cold ocean water. There is no evidence showing that there was a known dangerous condition of property in the area where the decedent drowned. The depth of the harbor at that point is not shown to increase the risk of drowning as opposed to the surrounding area.’”
Santa Barbara leases commercial space to tenants like Santa Barbara Sailing Center, which is where Kabogoza rented his board. The company pays the City 10% of its gross receipts on such rentals.
The opinion notes many artificial features in the harbor like Stearns Wharf, buoys and a dredged channel. Those are in addition to natural dangers like choppy water and strong winds.
The city actively addressed the hazards of paddle-boarding with maps, posted signs pointing to preferred paddling areas and public service announcements addressing paddle-board safety.
Kabogoza told his friend on the way to the harbor that he had paddle-boarded before but could not swim. He said there were not many places to swim where he grew up in Africa.
He fell off his board when he decided to turn and paddle back towards the harbor. The opinion says his female friend could not help because he was panicking and too big for her to pull to the surface. She had to let him go when he began to drag her underneath.
He had failed to pull the string on a belt pack that inflates. He had put it on backwards, too, so the flotation would have been behind his back instead of on his front.
The lawsuit also claimed since Santa Barbara charged the rental company fees on paddle-board rentals, it was not entitled to government immunity. The language in that exception regarding “specific” fees does not apply to the contract, the opinion said.
“The City does receive a percentage of gross sales from Blue Water (the shop’s owner), but that is not the same as receiving a specific fee for permission to participate in paddle boarding or any other hazardous recreational activity,” Perren wrote.