Summer in the city
This year, Greenwich, Conn., may limit the summertime events it sponsors. Recently, the city was hit with a $6 million jury award from an incident four years ago in which a physician fractured his back and broke a leg sledding into a drainage ditch on city property. According to the plaintiff, the city should have done something about the ditch, and the jury agreed.
The recreational facilities available in many communities today — bicycle paths, tennis courts, golf courses, in-line skating parks and swimming pools — may be popular, but they also can create significant liability for local governments. Because so many people take advantage of summertime activities, accidents and deaths are all too frequent.
For example, drowning is the second leading cause of unintentional injury-related deaths to children ages 14 and under, and two-thirds of all drownings occur between May and August. While some communities are struggling to keep their swimming pools open during the summer because of limited funds, the cost of long-term care for someone injured there could close all city or county facilities. An estimated 5,000 children ages 14 and under are hospitalized because of near-drownings, and of those, 5 to 20 percent suffer severe and permanent disability. Health care costs per near-drowning victim typically range from $75,000 for initial emergency room treatment to $180,000 per year for long-term care.
Many communities have built bicycle paths for their residents; however, local governments should note that 450 bicyclists die each year from accidents. In addition, more than 200,000 children are treated in emergency rooms yearly for playground equipment-related injuries. The tragedies resulting from the deaths and injuries can have far-reaching financial effects, particularly when cities and counties fail to take steps to prevent recreational injuries.
Who gets the blame?
In some states, a city or county can be held liable for injuries or deaths that occur on its property. Local governments can be liable not only for known defects, but also for defects about which they “should have known.” Generally, the city or county must exercise reasonable care against foreseeable dangers under the circumstances that exist at the time.
Some states provide cities and counties with immunity against liability for any injury to a person engaged in a recreational activity on government property. Those types of statutes may provide broad immunity to local government property owners, but there are exceptions, including when the local government is charging admission for spectators to an event. Another example of an exception is when the death or injury at an event is caused by a malicious act or by a failure to warn participants of unsafe conditions. However, governmental immunity is being eroded in many jurisdictions, and local governments should try to control their liability.
Even if a state has extended recreational immunity to its local governments, the costs of defending claims involving injury or death are significant. To determine how much insurance is necessary or to implement measures to avoid liability, cities and counties should know their state’s statutory exceptions and case law interpretations that may expose them to potential problems.
Cities and counties have unique exposures in comparison to the risks assigned to private businesses. Consequently, policies and programs must be tailored to meet those specific needs. The key insurance plans needed by a local government are a general liability policy and an excess/umbrella policy.
Local governments must have management programs to identify risks and must take the necessary actions to prevent injuries and to avoid liability. Taking actions to prevent injuries is critical in tort cases. Courts may determine liability if a city or county knew about the problem, considered the danger but did not take steps to prevent the harm from occurring.
For more help
Organizations like the Children’s Safety Network National Injury and Violence Prevention Resource Center, voluntary safety standards groups (see “Who to contact for safety information” sidebar on left), and recreational equipment manufacturers have identified the kinds of exposures local governments may face. The Children’s Safety Network National Injury and Violence Prevention Resource Center, for example, has developed information that can minimize the likelihood of injuries.
There are at least five ways local governments can protect themselves from potential liability problems:
Create formal written risk management programs for recreational facilities to identify loss exposures that the municipality may be subject to and to control the risk. That includes the duty to regularly inspect parks, fields, courts and other facilities, respond to notices of defects, and if warranted, repair the defect or replace the equipment. Parks and bike trails need to be well maintained. The equipment (fences, goal posts, bleachers, etc.) on ball fields needs to be inspected for wear and tear.
Post appropriate signage providing instructions or warning of hazards is essential for minimizing accidents. A regular inspection and maintenance program must be implemented.
Create employee training programs. For example, city swimming pools and water parks should use lifeguards certified by organizations such as the American Red Cross. Those programs include a systematic approach to lifeguard surveillance, rescue skills and first aid training, including CPR. Consider creating a safety committee, and make sure it includes employees from recreational facilities. City or county employees, whether at the pool or at the golf course, are in the best position to determine if the current training programs are truly effective.
Develop formal procedures for incidents or accidents involving any recreational facility. A report should include the date, time and location of the incident as well as the names of employees involved, the activity type, injury information and basic information about the circumstances of the incident. Periodic analysis of those reports based on individual recreational facility and on an aggregated basis across all facilities needs to be performed to identify loss trends.
The key to a successful safety program is documentation. Procedures and manuals are the initial component. However, they must be adhered to religiously. Written/electronic logs and records need to be used and reviewed regularly.
When thinking about summer in the city, think safety. By developing a strong formal risk management program designed for summertime activities, cities and counties will help mitigate serious injuries to their residents and minimize liability.
Rita Nowak is assistant vice president of commercial lines for the Property Casualty Insurers Association of America, a national trade association based in Downers Grove, Ill.
Who to contact for safety information
The following organizations can provide information to help cities and counties keep their summertime activities safe.
Architectural and Transportation Barriers Compliance Board
The group publishes the Americans with Disabilities Act’s Accessibility Guidelines for Play Areas, which applies to newly constructed or altered play areas and equipment at schools, parks and other facilities.
Contact: Architectural and Transportation Barriers Compliance Board Office of Technical Information Services
Suite 1000, 1331 F Street, NW
Washington, D.C. 20004-1111
Telephone: (202) 272-5434 x134
Web site: www.access-board.gov
American Society for Testing and Materials International (ASTM)
The non-profit organization helps develop and publish voluntary consensus standards for materials, products, systems and services.
Contact: ASTM International
P.O. Box C700, 100 Barr Harbor Drive
West Conshohocken, PA 19428-2959
Telephone: (610) 832-9585
Web site: www.astm.org
International Organization for Standardization (ISO)
ISO is an independent standards organization that certifies a manufacturer’s quality system to one or more of their standards.
Contact: International Organization for Standardization
1, Rue de Varembe, Case Postale 56
CH-1211 Geneva 20, Switzerland
Telephone: 41 22 749 01 11
Web site: www.iso.org
International Play Equipment Manufacturers Association (IPEMA)
IPEMA provides third-party product certification services for public play equipment and public play surfacing materials.
Contact: International Play Equipment Manufacturers Association
8300 Colesville Road, Suite 250
Silver Spring, MD 20910
Telephone: (800) 395-5550
Web site: www.ipema.org
National Recreation and Park Association (NRPA)
NRPA offers a Preferred Nonprofit Directors and Officers Insurance Program.
Contact: National Recreation and Park Association
22377 Belmont Ridge Rd.
Ashburn, VA 20148
Telephone: (703) 858-0784
Web site: www.nrpa.org
U.S. Consumer Product Safety Commission (CPSC)
CPSC is a federal regulatory agency that distributes product safety performance information and recommended practices. For example, its “Handbook for Public Playground Safety,” includes safety guidelines for playground equipment.
Contact: U. S. Consumer Product Safety Commission
4330 East-West Highway
Bethesda, MD 20814-4408
Telephone: (301) 504-0990
Web site: www.cpsc.gov