Berry v. State of California

Opinion

SIMS, Acting P. J.

Government Code section 831.7 provides in relevant part: “(a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity ... for any damage or injury to property or persons arising out of that hazardous recreational activity, [f] (b) . . . ‘Hazardous recreational activity’ also means: ... [SO (2) Any form of diving into water from other than a diving board or

diving platform, .

. .” (Italics added; further statutory references are to the Government Code unless otherwise indicated.)

In this case, we are called upon to determine the meaning of “diving platform.” We shall conclude a “diving platform” is an artificial structure designed and maintained for the purpose of diving. We shall further conclude that a free stump does not qualify as a diving platform.

Procedural History

Appellant, Sandra Dee Berry, filed a complaint against the State of California (the State) for damages for personal injuries sustained from diving into the American River. Following a successful demurrer, judgment was entered in favor of the State. Berry appeals contending the trial court erred in sustaining the demurrer as she had pled facts which established an exception to the section 831.7 immunity asserted by the State.

Berry dived from a tree stump into the American River and hit her head on a concrete structure under the water, sustaining serious injuries. In her complaint, she alleged there was a dangerous condition of public property “in that a large tree stump was allowed to be maintained at the water’s edge . . . after a time when the Defendants. . . knew or through the exercise of reasonable care should have known that the tree stump herein mentioned was being used by Plaintiff and others similarly situated as a diving platform to dive into the American River.”

[691]

The State demurred, asserting, inter alia, that Berry could not state a claim for relief because section 831.7 provided immunity from liability for injuries resulting from Berry’s hazardous recreational activities on public property, and diving from a tree stump was such an activity. The trial court found the statute applied to the facts as pled and sustained the demurrer without leave to amend.