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Tide's Ebbing for Victims of Ocean Who Seek Redress : Beach Liability Suits Being Settled in Favor of Cities

August 13, 1989|ALAN ABRAHAMSON | Times Staff Writer

At dusk one evening about five years ago, Gary Decker went surfing off Imperial Beach. Soon after he entered the water, his surfboard leash got tangled in a lobster trap.

San Diego County sheriff's deputies and Imperial Beach firefighters hurried to the shore. An announcement by bullhorn was made from the beach, telling the 19-year-old Decker "help was on the way."

Help never arrived.

Officials on the beach, in fact, ordered would-be rescuers to stay on shore and not attempt a rescue. Lifeguards only minutes away were not called.

A helicopter did arrive and hovered over Decker for 15 to 20 minutes, shining a bright light on him. Eventually, a helicopter rescue was rejected.

About the time the sheriff's dive team tied a rope around one diver's waist and anchored that line to shore while the diver waded into the surf, Decker's leash became disentangled and he floated to shore, unconscious. All attempts to revive him failed, and he was pronounced dead at a local hospital.

Gary Decker's father sued Imperial Beach, complaining of negligence and wrongful death. "It was a waste of a young boy's life," Glenn Decker said in a phone call last week.

The city responded that it was immune from liability.

In a recent decision, a state appellate court said the city was right.

Millions of Californians will descend on the beach this summer, and some will drown, some will encounter dangerous marine life and others will break their necks diving onto submerged rocks. The Decker case is a dramatic illustration of the way the tide has changed for the survivors of those accidents.

The ebb and flow has taken less than 20 months. Before the end of 1987, it was reasonable to expect that a beach liability suit against a local government might be successful, yielding not just medical expenses but millions of dollars, lawyers who specialize in the cases say.

But revised state laws and key court decisions, one of which is the Decker ruling, mean that those injured at the beach now face almost insurmountable barriers in getting City Hall to pay their bills.

13 Cases Against Public Agencies

Since the turnabout, attorney David Casselman's law firm in Tarzana, in the San Fernando Valley, has defended 13 cases brought against public agencies, primarily injured swimmers or divers suing Los Angeles County or Newport Beach, Casselman said. He has not lost one.

"The law has so dramatically shifted that I tell lawyers who bring these new cases now, 'Carefully consider the expenses you will have to incur to bring these cases to trial, because the climate in the court system is dramatically against you,' " Casselman said.

In San Diego, the number of beach liability cases pending against the city is steady at three, and the odds the city will prevail on all of them are "very, very good in light of the immunities available to public entities at the present time," Chief Deputy City Atty. Gene Gordon said.

Defense lawyers maintain that the changes in the laws and in court attitudes were a welcome correction.

"In a trial setting, I'm sitting there with a code book (that says) I'm not liable," San Diego Assistant City Atty. Ron Johnson said. "I'm sitting there facing a judge and a jury with a quadriplegic who's a nice guy, who everyone feels sorry for, and the courts had started whittling away with (the city's) immunity to the point where there was none."

Newport Beach City Atty. Robert Burnham said the "current state of the law is a pretty good balance of the policy issues involved."

But plaintiffs' lawyers say the state of the law reflects an ominous trend.

'Cooling of Courts' Willingness'

"What I feel is that we're seeing a cooling of the courts' willingness to support an individual's claim against the corporate world, whether it's a municipality or a business," said W. Lee Hill, the San Diego attorney who represented Glenn Decker.

Another San Diego attorney had the chance to dwell on the changes in beach liability while he was surfing in 1987. Like Gary Decker, Don Vaughn's leash became entangled in a lobster trap. Vaughn finally freed himself--after four hours of clinging to his surfboard in the dark--and swam to shore.

Vaughn said he did consider a suit against whoever owned the lobster trap. But "everyone knows these lobster fishermen have no insurance coverage," he said.

He said his new approach has nothing to do with law. He just doesn't wear a surf leash anymore. "My new motto is, I would rather swim than drown."

Becoming an Issue

For years, beach liability was a non-issue. In 1963, the state Legislature passed a law that specifically said cities, and their employees, were to be absolutely immune for injuries caused by a "natural condition" of any "unimproved public property."

The policy behind the law was basic economics. Without immunity, governmental entities would be motivated simply to keep people off beaches, and certain other public lands, rather than incur the costs of making the property safe and defending injury claims.

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