Haytasingh v. City of San Diego, D076228

CourtCalifornia Court of Appeals
Citation286 Cal.Rptr.3d 364
Decision Date09 July 2021
Parties Michael Ramesh HAYTASINGH et al., Plaintiffs and Appellants, v. CITY OF SAN DIEGO et al., Defendants and Respondents.
Docket NumberD076228

286 Cal.Rptr.3d 364

Michael Ramesh HAYTASINGH et al., Plaintiffs and Appellants,
v.
CITY OF SAN DIEGO et al., Defendants and Respondents.

D076228

Court of Appeal, Fourth District, Division 1, California.

Filed July 9, 2021


McDougal, Love, Boehmer, Foley, Lyon & Canlas, Steven E. Boehmer and M. Anne Cirina, La Mesa, for Plaintiffs and Appellants.

Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City Attorney, and Catherine A. Richardson, Deputy City Attorney, for Defendants and Respondents.

AARON, Acting P.J.

I.

INTRODUCTION

Plaintiffs Michael Ramesh Haytasingh and Crystal Dawn Haytasingh, appeal from a judgment entered in favor of defendants, City of San Diego (City) and Ashley Marino, a City lifeguard, after a jury trial. The plaintiffs sued the defendants after an incident that occurred at Mission Beach in San Diego in August 2013, while Michael Haytasingh1 was surfing and defendant Marino was operating a City-owned personal watercraft. Although the parties offered different versions of what occurred that day, the plaintiffs alleged in their complaint that Marino was operating her personal watercraft parallel to Haytasingh, inside the surf line, when she made an abrupt left turn in front of him. In order to avoid an imminent collision with Marino, Haytasingh dove off of his surfboard and struck his head on the ocean floor. Haytasingh suffered serious injuries, including a neck fracture. The plaintiffs alleged that Marino was negligent in her operation of the personal watercraft.

Prior to trial, the trial court granted the defendants' motion for summary adjudication of the plaintiffs' negligence cause of action. The court determined that Government Code section 831.7 (section 831.7 ), which precludes the imposition of liability on a public entity or public employee for injuries that "aris[e] out of" hazardous recreational activities, and defines "hazardous recreational activity" to include surfing, provided complete immunity to the defendants on the plaintiffs' negligence cause of action. (§ 831.7, subd. (b)(3).) After the trial court granted summary adjudication as to plaintiffs' claim of ordinary negligence, the plaintiffs amended their complaint to allege that they were entitled to relief pursuant to two statutory exceptions to the statutory immunity provided for in section 831.7 : (1) that Marino's conduct constituted an "act of gross negligence" that was "the proximate cause of the injury" (§ 831.7, subd. (c)(1)(E) ) and (2) that the City failed to "guard or warn of a known dangerous condition or of another hazardous recreational activity known to the public entity ... that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose" (§ 831.7, subd. (c)(1)(A) ). The case proceeded to trial, and a jury ultimately found in favor of the defendants.

On appeal, the plaintiffs challenge the trial court's summary adjudication ruling. Specifically, the plaintiffs contend that the

286 Cal.Rptr.3d 369

trial court erred in concluding that the immunity granted to public entities and their employees under section 831.7 barred plaintiffs from pursuing a cause of action for ordinary negligence against the City and Marino.

The plaintiffs also contend that the trial court erred when it concluded, prior to instructing the jury, that the City and its lifeguards are not required to comply with the state's basic speed law set forth in Harbors and Navigation Code section 655.2.2 As a result of the trial court's determination that Harbors and Navigation Code section 655.2 does not apply to City lifeguards operating machine-propelled vessels, the court did not instruct the jury that City lifeguards are required to obey the vessel speed limits set forth in that provision if they are operating vessels that are not displaying the lights referred to in subdivision (b) of that section. The trial court instead instructed the jury with respect to a San Diego Municipal Code provision that imposes a five mile per hour speed limit on vessels operating within 1000 feet of a beach, but exempts from its speed limit all government employees who are acting in their official capacity. The plaintiffs contend that the court's instructional error with respect to the speed limit issue constitutes reversible error because the state's basic speed law is relevant to the standard of care that Marino was obliged to meet, and is therefore relevant to whether Marino's conduct constituted an extreme departure from the standard of care, as required for a finding of gross negligence.

We conclude that the trial court did not err in determining that section 831.7 provides defendants with complete immunity with respect to the plaintiffs' cause of action for ordinary negligence, given that Haytasingh's injuries arose from his participation in a hazardous recreational activity on public property. The language of section 831.7 is broad; it provides immunity from liability to public entities and their employees for ordinary negligence with respect to "any damage or injury to property or persons arising out of [an individual's participation in a] hazardous recreational activity" conducted on the property of a public entity. (§ 831.7, subds. (a), (b).)

However, we also conclude that the trial court erred in determining that Harbors and Navigation Code section 655.2's five mile per hour speed limit does not apply to City lifeguards, and in instructing the jury that all employees of governmental agencies acting within their official capacities are exempt from the City's five mile per hour speed limit for water vessels that are within 1,000 feet of a beach under San

286 Cal.Rptr.3d 370

Diego Municipal Code section 63.20.15. We conclude that the error was prejudicial. We therefore reverse the judgment and remand for further proceedings.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

On August 2, 2013, the plaintiffs, together with their children and foster son, traveled from their home in Monterey to San Diego. The following day, the group went to Mission Beach, where Haytasingh and his foster son went surfing. Haytasingh had begun surfing when he was 16 years old; at the time of the incident, he had been surfing for approximately 22 years. Haytasingh surfed with various of his children during multiple sessions that day. During one of the earlier surfing sessions, Haytasingh noticed a lifeguard on a personal watercraft. He mentioned to his foster son to "be careful of the jet ski" because "[i]f it rolls over, it could kill us."

Marino was on duty as a lifeguard at Mission Beach on August 3, 2013. In the course and scope of her employment, Marino was operating an 11.5-foot personal watercraft. The personal watercraft was outfitted with a rescue sled, which resulted in a total length for the personal watercraft and sled of approximately 15 feet. The personal watercraft was not equipped with lights of any kind or brakes. At the time of the incident, Marino was assisting another lifeguard in performing a "Code S," which involved separating swimmers and surfers into their respective zones in the water.3

At approximately 1:50 p.m., Haytasingh and his foster son went out for a surfing session. The pair paddled out, and "moved south in an effort to distance themselves from Marino." Haytasingh saw Marino on the personal watercraft idling about 15 feet north of his location. Haytasingh was able to catch a wave and began surfing toward the shore; Haytasingh's foster son had been unable to catch the wave. Haytasingh estimated that the wave he was riding was approximately 3 feet high and that he was traveling at a speed of approximately 8 to 10 miles per hour.

Haytasingh was traveling east on his surfboard, and noticed the personal watercraft travelling parallel to him on his right side.

According to Haytasingh, he had been riding the wave for approximately seven seconds when "the jet ski and the lifeguard speed up and then take an immediate left right in front of me." Haytasingh believed that the personal watercraft was approximately 10 feet in front of him. In response to the personal watercraft being in that location, he "bailed off to the right," jumping off of his surfboard. Haytasingh hit his head on the ocean floor. When he surfaced, he saw Marino. Haytasingh asked her what she was doing, and after feeling numbness and tingling all over his body, asked her for help.

Marino offered a different version of the relevant events. According to Marino, she was traveling in a southerly direction, approximately 20 to 30 feet offshore, where the water is approximately two feet deep. She estimated that she was traveling at a rate of 10 to 15 miles per hour heading southbound inside the surf line. Marino observed Haytasingh on his surfboard and noticed that he appeared to be preparing

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