LIABILITY ISSUES 101 LIABILITY ISSUES 101 The legal information and - PowerPoint PPT Presentation

PARKS AND RECREATION POLICY AND LEGAL TOOLS FOR A HEALTHIER FUTURE LEGAL TOOLS FOR A HEALTHIER FUTURE LIABILITY ISSUES 101 LIABILITY ISSUES 101 The legal information and assistance provided in this workshop does not constitute legal advice or legal

The Public Health Law Center The Public Health Law Center

Li bilit Iss es Li bilit Iss es 101 Liability Issues Liability Issues 101 101 Objecti es 101 - - Objectives Objecti es Objectives � Discuss the impact liability issues have on parks and recreation activities. � Recognize the liability risks of parks and recreation activities. � Identify ways to minimize liability risks of these activities. � Apply liability standards to different situations. � Develop strategies to reduce liability exposure. p g y p

Wh Does Li bilit M tter? Wh Does Li bilit M tter? Why Does Liability Matter? Why Does Liability Matter?

Wh t is Wh t is What is a “Tort”? What is a “Tort”? “Tort”? “Tort”?

Elements of Li bilit Elements of Li bilit Elements of Liability Elements of Liability � Duty of care; � Failed in Duty; and � That failure caused harm that could have been reasonably expected to occur

Ne li ence Ne li ence Negligence Negligence Reasonable Person Standard Reasonable Person Standard

Imm nit : Defense to Li bilit Imm nit : Defense to Li bilit Immunity: Defense to Liability Immunity: Defense to Liability Minnesota Civil Damages Act Damages Act

Imm nit : Defense to Li bilit Imm nit : Defense to Li bilit Immunity: Defense to Liability Immunity: Defense to Liability Who is covered? Who is covered? � Municipality includes cities and parks. � Employee officer or agent when acting within scope of � Employee, officer, or agent when acting within scope of employment Not covered: � Independent Contractor I d d C � Outside Scope of Employment

Imm nit : Ro d M p in Minnesot Imm nit : Ro d M p in Minnesot Immunity: Road Map in Minnesota Immunity: Road Map in Minnesota 466 03 E 466.03 Exceptions: i � Subd. 4. Accumulations of snow and ice. � Subd. 6. Discretionary acts. � Subd. 6b. Unimproved property. � Subd. 6e. Parks and recreation areas. � Subd. 6f. Beach or pool equipment. Subd. 6f. Beach or pool equipment. � Subd. 21. Geographic information systems (GIS) data. � Subd 23 Recreational use of school � Subd. 23. Recreational use of school property and facilities.

Imm nit : Wh It M tters? Imm nit : Wh It M tters? Immunity: Why It Matters? Immunity: Why It Matters? Ri k M Risk Management t

Recre tion l Use Imm nit Recre tion l Use Imm nit Recreational Use Immunity Recreational Use Immunity 466 03 Subd 6e Parks and recreation areas 466.03 Subd. 6e. Parks and recreation areas.

R R Recreational Use Immunity: Recreational Use Immunity: Court r r ti n l U ti n l U Imm nit Imm nit Court Cases C C rt rt C Cases* * Date School – School – City – City – Immunity Immunity Immunity Immunity Not Applied Not Applied Applied Applied Pre-1995 n/a n/a 8 (2 n/a unpublished) 1995-1999 1995 1999 5 (5 5 (5 n/a n/a 15 (10 15 (10 2 (2 2 (2 unpublished) unpublished) unpublished) 2000-2010 3 (2 1 13 (5 3 (2 unpublished) unpublished) unpublished) unpublished) unpublished) unpublished) 2011 to present 1 (1 n/a n/a n/a unpublished) *Estimated Numbers

Recre tion l Use Imm nit Recre tion l Use Imm nit Recreational Use Immunity Recreational Use Immunity Does the Recreational Use Immunity statute Use Immunity statute apply to the property or the actions of the the actions of the city/employee?

Recre tion l Use Imm nit Recre tion l Use Imm nit Recreational Use Immunity Recreational Use Immunity Were the actions that led to the harm part of Were the actions that led to the harm part of the construction, operation or maintenance of the recreational property or part of the the recreational property, or part of the provision of recreational services?

Recre tion l Use Imm nit Recre tion l Use Imm nit Recreational Use Immunity Recreational Use Immunity Was the property open and intended to be Was the property open and intended to be used for recreational purposes?

R R Recreational Use Immunity Recreational Use Immunity ti n l U ti n l U I I nit nit Trespasser Standard Trespasser Standard

Recre tion l Use Imm nit Recre tion l Use Imm nit Recreational Use Immunity Recreational Use Immunity Adult Standard: Section 335 - Artificial Adult Standard: Section 335 Artificial Conditions Highly Dangerous to Constant Trespassers on Limited Area Trespassers on Limited Area

Recre tion l Use Imm nit Recre tion l Use Imm nit Recreational Use Immunity Recreational Use Immunity I th Is the condition that diti th t caused harm an artificial condition?

Recre tion l Use Imm nit Recre tion l Use Imm nit Recreational Use Immunity Recreational Use Immunity Did the city or city employee know l k the artificial condition was likely to cause y death or serious bodily harm? bodily harm?

Recre tion l Use Imm nit Recre tion l Use Imm nit Recreational Use Immunity Recreational Use Immunity Was the artificial condition hidden? Was the artificial condition hidden?

Recre tion l Use Imm nit Recre tion l Use Imm nit Recreational Use Immunity Recreational Use Immunity Did the city or city employee fail to l f il t exercise reasonable care to warn of the artificial condition?

Recre tion l Use Imm nit Recre tion l Use Imm nit Recreational Use Immunity Recreational Use Immunity Recap: What to Ask? Recap: What to Ask? Is the condition that caused harm an artificial condition? If Yes: If Yes: Did the city or city employee know the condition was likely to cause death or serious bodily harm? likely to cause death or serious bodily harm? Was the condition hidden? If Yes: If Yes: Did the city or city employee fail to exercise reasonable care to warn of the condition? care to warn of the condition?

Recre tion l Use Imm nit Recre tion l Use Imm nit Recreational Use Immunity Recreational Use Immunity Child Standard: Section 339 339 - Artificial A tifi i l Conditions Highly Dangerous to Trespassing Children p g

Discretion r Acts Imm nit Discretion r Acts Imm nit Discretionary Acts Immunity Discretionary Acts Immunity 466 03 Subd 6 Discretionary acts 466.03 Subd. 6. Discretionary acts.

Discretion r Acts Imm nit Discretion r Acts Imm nit Discretionary Acts Immunity Discretionary Acts Immunity Political Safety Social Legal Legal Economic Other Public Policy Considerations

Discretion r Acts Imm nit Discretionary Acts Immunity Discretionary Acts Immunity Discretion r Acts Imm nit � Did the City have a policy addressing the Did the City have a policy addressing the property and/or employee actions at issue in the situation? situation? � Did the policy include considerations of Did h li i l d id i f political, social and economic issues, such as safety concerns, financial burdens, and possible f fi i l b d d ibl legal consequences?

R R Recreational Use of School Property Immunity Recreational Use of School Property Immunity r r ti n l U ti n l U f S h f S h l Pr p rt Imm nit l Pr p rt Imm nit Subd. 23. Recreational use of school property and facilities. (a) Any claim for a loss or injury arising from the use of school property or a school facility made available for public recreational activity activity. (b) Nothing in this subdivision: (1) limits the liability of a school district for conduct that would ( ) y entitle a trespasser to damages against a private person; or (2) reduces any existing duty owed by the school district.

Imm nit : Thin s the Co rts Look For Imm nit : Thin s the Co rts Look For Immunity: Things the Courts Look For Immunity: Things the Courts Look For � Written Policies � History of Accidents � Complaints or Comments about Safety � Results of Safety Inspections � Results of Safety Inspections � Common Usage � Existing Standards

Oth r C n id r ti n Imp Oth r C n id r ti n Imp Other Considerations Impacting Liability Other Considerations Impacting Liability tin Li bilit tin Li bilit � Limiting or Shifting Liability Exposure � Limiting or Shifting Liability Exposure � Damage Caps and Liability Insurance � Indemnity Clauses I d i Cl � Waivers and Releases � Food Consumption � Volunteers � Volunteers � Criminal Background Checks � S � Sports Concussion Law C i L

Risk M n Risk M n Risk Management Strategies Risk Management Strategies ement Str te ies ement Str te ies � Education/Training Education/Training � Indemnity Clauses Indemnity Clauses � Supervision and Effective � Liability Insurance Communication � Warning Signs � Warning Signs � Good Planning � Corrective Actions � Safety Standards Safety Standards � Inspections � Inspections � Good policy drafting � Emergency Preparation � Written Policies � Written Policies � Waivers

Hypotheticals Hypotheticals Hypotheticals Hypotheticals H YPOTHETICAL A B ASEBALL G AME I NJURY H YPOTHETICAL B H YPOTHETICAL B S LIDING H ILL I NJURY H YPOTHETICAL C P LAYGROUND I NJURY J H YPOTHETICAL D P UBLIC B EACH D ROWNING

Hypotheticals Hypotheticals Hypotheticals Hypotheticals H YPOTHETICAL A H YPOTHETICAL A B ASEBALL G AME I NJURY