Tragedy at the Beach – State Not Liable for Youth Killed by Collapsed Sand (CA)

by

Buchanan v. California Department of Parks and Recreation (California)
(unpublished opinion)

A seventeen year old boy and his brother participated in a church youth group outing to Sunset State Beach in California.  During the outing, the boy and another member of the church group “created an unnatural condition that was not common to nature and would not naturally occur in that location, in that they were engaged in digging large holes in the sand in a picnic area being used by the church group, which was located within the park boundaries, separated from the beach by sand dunes, but within sight of a nearby elevated life guard station.”  The sand collapsed, burying and killing the boy.  A lawsuit was filed by the boy’s family, with the amended complaint alleging two causes of action.  First, the plaintiffs alleged that the California Department of Parks and Recreation (“DPR”) employees observed (or should have observed) the digging activities and they had a duty to warn the boy and the group of the known risks.  Second, the boy’s brother alleged a claim for negligent infliction of emotional distress as a bystander that witnessed the incident.

The DPR filed a demurrer to the amended complaint, asserting that the complaint failed to show that it owed a duty to the plaintiff and that statutory government immunity applied.  The trial court sustained the demurrer without leave to amend based on the Hazardous Recreational Activity immunity found in Government Code Section 831.7, and it entered a judgment of dismissal in favor of the defendant.  Plaintiffs appealed.

On appeal, the Court affirmed the trial court’s decision.  Plaintiffs argued that the activity of digging large holes in the sand and seeking to connect those holes was not a hazardous recreational activity, but the Court disagreed.  The Court noted that as defined in the statute, a hazardous recreational activity is “a recreational activity conducted on property of a public entity that creates a substantial, as distinguished from a minor, trivial, or insignificant, risk of injury to a participant or a spectator.”

Plaintiff argued that they sufficiently alleged exceptions to the statutory immunity since they alleged DPR’s park rangers failed “to stop [the boy’s] sand digging activities or to warn him in light of their knowledge and training regarding the danger of sand collapse.”  However, the Court explained that the “failure to warn exception” applied “only where the public entity failed to warn or guard against a dangerous condition or hazardous activity that was not an inherent part of the hazardous recreational activity.”  In that the risk of sand collapse was inherent in the recreational activity of digging large holes and deep tunnels in the sand, the boy assumed the risk of sand collapse when he engaged in that activity.

Plaintiffs also argued that the statutory immunity did not apply because the defendants had been grossly negligent when they observed the sand-digging activity and failed to stop it despite their knowledge and training regarding the danger of sand collapse.  In 2008, an eleven year old boy had died in a sand collapse about 20 miles away from the site of the incident.  However, the Court stated that in order for the gross negligence exception to apply, “the complaint must allege facts showing ‘an extreme departure from the ordinary standard of care.’”  The Court concluded that the complaint failed to state facts sufficient to support such a claim.

As to the Court’s denial of plaintiffs request to further amend the complaint, the Court explained that “Plaintiffs [had] not offered either a proposed second amended complaint or specific factual allegations showing how the complaint may be further amended to state a cause of action against DPR that [was] not barred by the statutory immunity.”

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