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Answers to some questions about AB700, a bill to add mountain biking
and paragliding to the list of hazardous activities in Section 831.7 of
the California Government Code. The bill would maximize immunity for
public agencies which allow these activities.

Question 1: Doesn't existing law already work, and aren't there few
instances of a public agency being successfully sued as a result of
mountain bike accidents, making this addition unnecessary?

Answer: Assemblyman Jim Cuneen, the author of the bill, spoke to that
issue during the bill's hearing before the Assembly Judiciary
Committee. His said that this is precisely the type of issue the
legislature should be addressing, by taking a proactive stance on an
issue that is likely to become a bigger problem later. His point was:
why wait to act until agencies such as ours are in the position of
having to spend hundreds of thousands of dollars defending themselves
in litigation. Taking this action now will help to reduce the
possibility of that eventuality. His arguments were persuasive and the
bill passed unanimously in both the Assembly Judiciary Committee and in
the full Assembly.

Question 2: Doesn't existing law already provide broad-enough
immunities for public agencies, making it unnecessary to add mountain
biking to the list of hazardous activities?

Answer: It's true that public agencies already enjoy broad immunities.
However, this does not lessen the need to maximize all available
immunities. If the existing immunity noted in Government Code Section
831.4 is fully adequate, why then is there even a list of inherently
hazardous activities elsewhere in the code (Section 831.7)? It seems
illogical that activities already enjoyed on public lands, such as
horseback riding, hang gliding, rock climbing, and others, should have
a greater level of immunity than mountain bicycling which, based upon
our experience, is equally hazardous.

Question 3: Aren't the Consumer Attorneys of California in opposition
to this bill?

Answer: It should be clear that the trial lawyers' motivation is that
this bill would indeed add another level of liability protection, thus
reducing their ability to litigate and obtain settlements and/or
verdicts. The District interprets their opposition as a positive
indication of the need for this designation.

Question 4: Couldn't this bill result in additional amendments that
might negatively impact existing immunities?

Answer: This point is certainly debatable, and the same could be said
for virtually any bill. In any case, Assemblyman Cuneen has indicated
that he will protect both the spirit and letter of the bill, and will
not accept any amendments that would dilute the bill's intention. The
District, as the sponsor of the legislation, would sooner pull the bill
than see it amended into something beyond its original intent.

Question 5: Mountain biking doesn't really appear to be that hazardous,
so isn't it inconsistent with the other activities listed in the
Government Code as being inherently hazardous?

Answer: The majority of mountain bicyclists are no doubt cautious and
responsible riders (the same can be said for equestrians, for instance,
yet that activity is listed as hazardous). However, the fact remains
that with the drastically increasing numbers of bicyclists on the
trails, and the very clear trend toward a greater number and severity
of solo mountain bike accidents, this is an inherently hazardous
activity. In the Bay Area, there have been at least two mountain bike
fatalities, and on District land numerous bicyclists have experienced
life-threatening accidents, several of which have yet to fully recover.
If this is any indication of the trend statewide, then the probability
of litigation is very high.

It would be incorrect and illogical to think that tree climbing, rope
swinging, cross-country skiing, surfing, horseback riding, and the many
other listed activities are, without exception, more hazardous than
mountain biking. It seems clear that mountain biking is indeed
consistent with the activities already listed in the code.

Question 6: Isn't mountain biking more of a family and youth activity
where the other listed activities are not?

Answer: In fact most of the activities listed are engaged in by family
and youth (for example, water activities, animal riding, archery,
boating, cross-country and downhill skiing, rock climbing,
rocketeering, surfing, trampolining, tree climbing, tree rope swinging,
water skiing, white water rafting, and wind surfing). In any event,
it's not clear as to how the diversity of users affects the issue of
liability, or the degree of hazard.

Question 7: If mountain biking is included in this code section, won't
that influence some public agencies to restrict or ban mountain bikes
on the basis that it is designated as inherently hazardous?

Answer: To the contrary, it is the absence of this additional liability
protection that some agencies may see as cause for further restricting
mountain bike usage on public lands. The greater the liability
protection, the "easier" it will be for an agency to allow these
multi-uses on public lands. It is unclear how an agency would ban
mountain biking on that basis alone, while allowing many of the other
activities already listed as hazardous.

This bill has received support from a wide variety of entities,
including the California Parks and Recreation Society, Responsible
Organized Mountain Pedalers (ROMP), Association for California Tort
Reform, the Santa Clara and San Mateo County Parks Departments, City of
Oakland Parks Department, Marin County Open Space District, Association
of California Water Agencies, Bay Area Open Space Council, and
Greenbelt Alliance.

Question 8: Won't this designation make it more difficult to obtain
insurance for individuals, for group activities, and for public
agencies?

Answer: There is no evidence that this is the case for any of the other
activities listed; hang gliders, skiers, surfers, wind surfers, and
equestrians are all able to obtain life insurance and group insurance,
and similar uses have not affected the District's insurance.




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                                             mrosd@netcom.com