SANTA ANA, Calif. (Legal Newsline) - A California city can't be sued by a man who was paralyzed when he dove headfirst into shallow water in Newport Bay, an appeals court has ruled.
The Fourth Appellate District ruled Aug. 29 against plaintiff Brian Carr in his lawsuit against the City of Newport Beach, affirming an Orange County grant of summary judgment to the municipality.
Both courts found Newport Beach immune from liability under laws governing hazardous recreational activities. Carr alleges a dangerous condition of public property (shallow water) and a failure to warn.
"Though application of the immunity in cases as tragic as this may seem harsh, we are obligated to apply the statute as enacted by the Legislature," the decision says.
"As a matter of policy, the Legislature chose to generally shield public entities from liability claims arising from hazardous recreational activities in order to deter those entities from severely restricting access to and use of public lands."
Carr had "a few beers while kayaking" and headed to an area of presumably shallow water called "Baby Beach," a popular spot for families with young children.
He climbed atop a 20-inch-wide seawall called a groin and dove in the water head first. His head hit the bottom and caused a spinal cord injury that left him a quadriplegic.
The City had a no diving policy there, so Carr argued the lifeguards failed to implement those rules by preventing him from jumping headfirst.
"Thus, Plaintiff is effectively asserting the lifeguards failed to enforce the law," the decision says, "meaning this is not a viable basis for establishing gross negligence."
A dissent by Justice Eileen Moore said there are issues of material fact as to whether the groin created a risk of injury to members of the general public when they "foreseeably dove off the groin." Her dissent says she would allow a jury to decide the issue and blames Newport Beach for not informing Carr of the no-diving policy.