The fear of litigation is causing some public agencies to prohibit activities which were once considered a normal part of childhood play. On January 7, 2015, the City Council in Dubuque, Iowa voted to ban sledding in almost all of its 50 parks. Other cities in the country have taken similar action, including: Des Moines, Iowa; Lincoln, Nebraska; Columbia City, Indiana; and various locations in New Jersey. While such actions are directly associated with child safety, often the biggest motivator for imposing such restrictions is fear of legal liability. For example, in Omaha, Nebraska, the family of a five year old was awarded $2.4 million dollars as a result of a sledding accident involving their child. In Boone, Iowa, a sledder was awarded $12 million dollars, and in Sioux City, Iowa, a sledder who crashed into a stop sign was awarded $2.8 million dollars. Those jury awards are noticed by other public agencies and their insurers. One study estimated that 20,000 children are injured per year in the USA, although most injuries are relatively minor.
Avoiding litigation also has prompted various public agencies to modify playgrounds. In some areas, swing sets have been removed, such as in Cabell County, West Virginia, where a school district was confronted with two different lawsuits from the same parent whose two children sustained minor injuries on the school playground. The school’s superintendent explained that the swing sets were being disabled “to keep us out of the courtroom.” He noted that there was a time when parents simply took care of the typical scrapes and bruises their children encountered, without filing lawsuits. Litigation aversion also prompted the removal of see-saws, merry-go-rounds and swinging ropes from playgrounds.
Some developmental psychologists believe that a certain level of risk taking is important for children. According to an article in the Wall Street Journal, protecting children from all risk can result in increases in anxiety and other phobias. The article explains, for example, that children who don’t climb trees are more likely to develop a fear of heights. Yet, more than 200,000 children are treated in United States emergency rooms for playground-related injuries every year, according to the U.S. Consumer Products Safety Commission. A New York Times article quotes a psychology professor as stating: “Children need to encounter risks and overcome fears on the playground.” The article notes that paradoxically, parents’ fear of children being harmed by mostly harmless injuries “may result in more fearful children and increased levels of psychopathology.” Many experts agree that some reasonable degree of risk taking for children is healthy. However, the more litigious society becomes, the greater incentive there is for public agencies to eliminate or minimize use of public property for activities that were once considered a normal part of childhood play.
As in other states, California has laws that limit liability of public agencies to a certain extent. To prevail on a theory that public property is “dangerous” in California, a litigant must show that the property was in a “dangerous condition” at the time of the injury, and was the cause of the injury, the dangerous condition created a reasonably foreseeable risk of the type of injury sustained, and that the public agency had actual or implied notice of the dangerous condition “a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code § 835, subd. (a).) The concept of a “dangerous condition” was defined by the State Legislature as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code § 830.) Many appellate court decisions in California have interpreted the pertinent statutes involving dangerous condition of public property in the context of particular facts. Such decisions help shape the law in this area. For example, in Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292 the court of appeal explained that liability can be imposed on a public agency when it fails “to provide adequate safeguards against a known dangerous condition.” When children might be exposed to a substantial risk of injury on public property, the public agency is “‘required to take reasonable precautions to protect [the children] from that risk’.”
There is a constant see-saw battle between the competing interests of protecting children, avoiding potential liability and providing an environment where children can encounter reasonable degrees of risk that seems to be necessary for healthy child development.
Public agencies have limited resources and even a single lawsuit can have devastating financial consequences. It is understandable, albeit unfortunate, that they would limit use of public property to avoid the risk of a large judgment. Ultimately, it will be up to state legislators to determine the extent to which public agencies should be immune from liability when someone is injured on public property. This situation is not created by “the lawyers” or the jury system; it is the result of rules and laws established by state legislators who respond to the will of the voters. In essence, the easier it is to sue a public agency for activities on public property, the more likely it is that use of public property will be restricted. Some would argue that promotes child safety, while others view it as a loss.
This requires a balancing of interests. Plaintiffs’ lawyers view their role as protecting injured clients and promoting public safety by forcing public agencies to protect their citizens from potential injury. Others might argue that you cannot eliminate all risks and that should not be the goal, because in the process activities that are considered to be fun will also be eliminated. Litigation promotes litigation-avoidance, a slippery slope where no sledding is allowed.
By: George E. Murphy
The information presented in this article is intended for general educational purposes. It is not intended to be legal advice. Every company or person’s situation is different and requires individual analysis by competent counsel before legal advice can be rendered. If you are confronted by a legal issue retain competent legal counsel to advise you immediately. This article is not a substitute for legal advice from an attorney licensed to practice in your jurisdiction.