Can I sue the other surfer for injuring me? Ask the Lawyer ...Middle East

Q: I was surfing, it was a nice day and all was good. Some guy not only cut me off but also lifted his board out of the water, which clocked the side of my face. I think he should be sued. I had to get stitches. He said (I am quoting), “Grow up! It’s surfing!” Your thoughts?

J.M., El Porto

A: Sorry you got hurt. Bottom line, surfing is an activity that is considered inherently dangerous. This means there is a risk of harm, which can include various factors such as the ocean currents, or slipping on the board or wiping out and hurting yourself. Hence, surfing is subject to the legal defense referred to as “assumption of the risk.” This means that typical, or not out-of-the-ordinary events, that play a role in harming you, are not going to give rise to a viable legal claim.

You could have a basis to sue if the behavior of the other surfer was so reckless, if not willful or intentional, that it is well outside the norm of risks associated with surfing. If he knew he was cutting you off, and did so in a cavalier manner, then took an action that resulted in his board hitting you, liability may attach. The facts, and any witnesses, could be crucial to establish your claim. If there are photos or video, those could help as well. Otherwise you may have a “he said, he said” scenario.

Have you already discussed the situation with a qualified attorney? Based on the description you provide, it is possible you have a viable claim, but more needs to be assessed.

Q: If I get hurt at the public beach because there is a sudden, substantial drop in the ocean floor while I am in the water, and then struggle to even get back in, hurting my back and neck, any chance I have a claim?

J.A., Hawthorne

A: The county is the party against whom you likely would bring a claim; thus, a governmental entity. This brings the Torts Claims Act into focus, which requires that if you plan to sue the government, you first have to submit an administrative claim (usually within six months of the incident), or the claim will be time barred. It is commonplace that the claim will be denied, after which you can sue within a limited period of time thereafter. Under California Government Code Section 831.2, however, public entities are not liable for injuries caused by natural conditions of unimproved public property, which could include a sandbar as well as a beach.

Also, if you were using the beach for recreation, California Civil Code Section 846 is another hurdle, because it provides (with limited exceptions) that the public landowner does not owe you a duty of care, unless the landowner charged you a fee, or contributed to the dangerous condition (eg, by dredging), actually knew of the risk, or was grossly negligent.

As with the first question above, my suggestion is go over the circumstances carefully with a qualified attorney. Based on what you have indicated, your claim in my view seems uphill (no pun intended), but perhaps there are details to be discovered and evaluated that could make your position stronger.

Ron Sokol has been a practicing attorney for more than 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.

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