Top state justices call 5 mph boat speed limit dangerous

The state Supreme Court has granted a new trial to a San Diego surfer who filed suit after he broke his neck diving into the water to avoid a collision with a city lifeguard’s boat, which was exceeding the state’s 5 mph speed limit. But four of the justices say lawmakers should reconsider the speed limit for those boats because it could hamper rescues.

The court unanimously denied review of appeals by San Diego and the lifeguard from a lower-court ruling setting aside a jury verdict against Michael Haytasingh. Jurors rejected Haytasingh’s claim that the lifeguard, Ashley Marino, was grossly negligent in the 2013 incident, but an appeals court said the jury was wrongly told that city watercraft were exempt from the 5 mph limit that applies to other boats within 200 feet of beaches and 100 feet of “bathers,” including surfers.

But while leaving intact the appellate court’s reading of current state law, a majority of the state’s high court said the law itself could endanger lives by limiting the speed of city-owned rescue boats. Currently, law enforcement watercraft with flashing blue lights are exempt from the limit, but it applies to other vessels including those piloted by lifeguards.

The 5 mph limit — which applies only to city watercraft and not to boats owned by counties or the state — “jeopardizes the safety of those in need of ocean rescue, as well as the safety of first responders who often risk their own lives to save them,” said Justice Joshua Groban. His opinion last week, urging the Legislature to consider changing the law, was joined by Justices Carol Corrigan, Goodwin Liu and Martin Jenkins.

Haytasingh was 38 and had been surfing for about 22 years when he went into the waters off San Diego’s Mission Beach with his son in August 2013. According to his lawsuit, Marino, piloting a city-owned watercraft, turned in front of him inside the surf line, and he had to dive into the water, hitting his head on the ocean floor. He suffered a fractured neck and a later brain seizure and is now confined to a wheelchair.

Marino denied cutting off Haytasingh and said she was trying to get out of his way. She said her boat was traveling between 10 and 15 mph.

Haytasingh’s claim of negligence was dismissed by a judge, who said participants in “hazardous activities,” such as surfing, cannot sue state or local government agencies for the types of careless actions defined as ordinary negligence. He was allowed to sue for “gross negligence” — reckless disregard for the safety of others — but a San Diego County jury found no such disregard by Marino or the city.

However, the Fourth District Court of Appeal set that verdict aside in July and said it might have been different if jurors had been accurately told that a city employee like Marino was covered by the state’s 5 mph speed limit for watercraft within 100 feet of bathers and surfers. Instead, they were told by the trial judge that Marino was protected by a San Diego ordinance that exempted city boats from the speed limit.

The court said the California law applies the offshore speed limit to all boat owners except the “state and its subdivisions.” A charter city like San Diego is not a subdivision of the state and is covered by the 5 mph limit, the court said.

Jurors might have found gross negligence if they had been told Marino was traveling at two to three times the speed limit, Justice Cynthia Aaron said in a 3-0 ruling granting Haytasingh a new trial — while also suggesting reconsideration of the law. The ruling became final and binding on trial courts statewide with the state Supreme Court’s denial of review.

The high court heard from a number of local governments who said the speed limit law, as interpreted by the appellate court, would hinder rescues and endanger lives.

“The 5 mph speed limit is a matter of life and death,” Donna Meyers, the mayor of Santa Cruz, said in a letter to the court. Most rescues by city lifeguards take place within 200 feet of the beach, she said, and slower boat speeds, and longer response times, mean “lives will be lost. Rescue operations will become recovery operations.”