Are warning signs playing a role in protecting your agency?

Illinois' new Tort Reform Act addresses hazardous conditions.

By Henry E. Mueller

Warning signs for dangerous park conditions, and the communication of warnings by other means, have become significant and often determinative issues in many cases of the last few years. In Illinois, the topic has gained much more significance since the end of last year with the passage of the Tort Reform Act, which took effect in November, 1986.

This article will discuss the pertinent portions of that Act concerning recreational facility liability, hazardous activities and warnings which might provide defenses against liability claims. A list of decisions and summaries for a number of cases that show the different ways in which courts across the country view recreational hazards, and effective or ineffective warnings, is available from the Illinois Association of Park Districts (IAPD).

Meeting the test

Liability claims basesd upon a lack of effective warnings must still meet the same four-pan test for all tort claims. The four stages are a legal duty to protect, a breach or failure to meet that duty, a causal connection between the breach and the harm, and an actual injury or harm sustained by the claimant.

A potential for tort liability exists when a condition or an activity on park property appears to be safe for an innocent, unknowing user, but in fact the condition or the activity is not safe. For such foreseeable risks known to the park staff, warning signs serve an important purpose in preventing injuries to the unknowing user and in helping to defend against liability claims if someone is injured.

Important changes

It is important to keep in mind the four-part tort analysis and the general purpose of warnings for many recreational activities that will now come under the terms of the new Tort Reform Act. The entire Tort Reform Act encompasses parts of many chapters throughout the Illinois Revised Statutes, but the significant portions for local governments are contained in the amendments to Chapter 85, the Tort Immunity Act.

The basic immunity for public park or recreational property, in Section 3-106, has now been expanded to include buildings or other enclosed recreational facilities, eliminating the prior lack of clarity as to whether buildings would be included in the immunity provided by that section. Section 3-106 provides an immunity for "the existence of a condition of any public property" used for parks, playgrounds or recreational purposes, unless the local entity or employee is guilty of "willful and wanton conduct" proximately causing the injury.

The Tort Reform Act has now added Section 1-210, which defines "willful and wanton conduct" as a course of action which "shows an actual or deliberate intention to cause harm or which, if not inten-

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tional, shows an utter indifference to or conscious disregard for the safety of others or their property." That definition essentially parallels the existing common law definition already established by court decisions in Illinois, and is effectively only a higher degree of negligence.

Park staff members should not concern themselves too much with the difference between "mere negligence" and "willful and wanton conduct." The standard of care is, for the most part, a legal issue that arises only after the litigation is filed. Park and recreational staff members should always do their jobs on the basis of the highest practical standard of care, and let the lawyers worry about whether an occurrence was a result of "mere negligence" or a result of "willful and wanton conduct."

A new provision

An entirely new provision in the Tort Reform Act, Section 3-109 of Chapter 85, protects local public entities from simple negligence claims by participants in and spectators at "hazardous recreational activities." (The text of Section 3-109 is included with this article, alone with an example of a warning sign.) Potential claimants must, however, have known or reasonably should have known that hazardous recreational activity created a substantial risk of injury, as distinguished from a minor, trivial or insignificant risk of injury. The parameters of those different degrees of risk will only be determined by future court decisions or legislation.

Hazardous activities

Hazardous recreational activities are defined to include water contact activities where no lifeguards are provided; diving, where it is prohibited, and a litany of specific activities, including bicycle racing, rock climbing, sport parachuting, water skiing and windsurfing, as well as many others. Body contact sports are included and defined as "sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants."

Some other high risk activities not included in the statutory list are ice skating, sledding, aerobics, bicycle riding (as compared to bicycle racing or jumping), swimming and diving lessons, running, and all other track and field events or les-

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sons. It is a very good idea to use waivers and releases in connection with the registration for those activities, as well as the ones included in the statutory hazardous activities.

Informing participants

To show that the participant or spectator knew or reasonably should have known that the activity created a substantial risk of injury, districts should also use warning signs, notices in program registration forms and information in permit applications. For example, there is much literature and evidence indicting that aerobic exercises can indeed carry a "substantial" risk of injury, although aerobic exercise is not a "contact sport" and is also not one of the activities listed in the new law.

If the program descriptions, application forms and warning signs point out the substantial risk of injury, in an activity such as aerobics, it will be much easier to defend against claims under the new law, even where an instructor may have been guilty of simple negligence.

Existing and new warning signs, where practical, and program brochures for hazardous activities should contain some additional brief language listing some of the specific dangers of the individual activity, as illustrated in the sign example.

Emphasizing hidden dangers

This all sounds more burdensome than it actually is, because you are not required to advise of obvious dangers that could be considered common knowledge, and you should not put signs on every tree in your parks. For instance, you should not be expected to specifically warn a sport parachuting par-

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ticipant that, if his chute does not open, he is at a "substantial risk of injury" when he strikes the ground. It would certainly be useful, however, to advise of hidden dangers, such as particularly dangerous curves on hills for bicycle or hiking trails.

Common sense should dictate what types of conditions require specific warnings. Of special concern are those dangerous conditions known to your employees, but unknown and not apparent to others. Once the participants or users have been warned of these conditions, their participation will, in effect, cause them to "assume the risk" of the special hazard. At the very least, participants should be warned of any special hazards which a park district has learned about through prior accidents.

Swimming and diving

Two of the highest risk hazardous activities are specifically described in the legislation, and the warning requirements are set out in some detail. For water contact activities, except diving, the immunity applies only in places where, or at a time when, lifeguards are not provided and reasonable warning thereof (of no lifeguard being provided) has been given, or the injured party should reasonably have known that there was no lifeguard provided at the time.

For example, a warning would not need to be posted at a Lake Michigan beach in January stating that no lifeguard was on duty. In contrast, a warning of some type should certainly be given if a lifeguard is not on duty at a pool on a Saturday in July.

For a governmental body to be protected from diving accident claims, even more is necessary. Diving must not only be prohibited at

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Section 3-109 (a) Neither a local public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, or to any spectator who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself or herself and was voluntarily in the place of risk, or having the ability to do so failed to leave, for any damage or injury to property or persons arising out of that hazardous recreational activity. (b) As used in this Section, "hazardous recreational activity" means a recreational activity conducted on property of a local public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator. "Hazardous recreational activity" also means: (1) Water contact activities, except diving, in places where or at a time when lifeguards are not provided and reasonable warning thereof has been given or the injured party should reasonably have kown that there was no life-guard provided at the time. (2) Diving at any place or from any structure where diving is prohibited and reasonable warning as to the specific dangers present has been given. (3) Animal racing, including equestrian competition, archery, bicycle racing or jumping, boat racing, cross-country and downhill skiing, hang gliding, kayaking, motorized vehicle racing, off-road motorcycling or four-wheel driving of any kind, orienteering, pistol and rifle shooting, rock climbing, rocketeering, rodeo, spelunking, sky diving, sport parachuting, body contact sports (i.e., sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants), surfing, trampolining, tree climbing, tree rope swinging where the person or persons furnished their own rope, water skiing, white water rafting, and wind surfing. (c) Notwithstanding the provisions of subsection (a), this Section does not limit liability which would otherwise exist for any of the following: (1) Failure of the local public entity or public empoyee to guard or warn of a dangerous condition of which it has actual or constructive notice and of which the participant does not have nor can be reasonably expected to have had notice. (2) An act of willful and wanton conduct by a public entity or a public employee which is a proximate cause of the injury. Nothing in this subsection creates a duty of care or basis of liability for personal injury or for damage to personal property. (d) Nothing in this Section shall limit the liability of an independent concessionaire, or any person or organization other than the local public entity or public employee, whether or not the person or organization has a contractual relationship with the public entity to use the public property for injuries or damages suffered in any case as a result of the operation of a hazardous recreational activity on public property by the concessionaire, person or organization. (Source: Chapter 85, Illinois Revised Statutes. 1985.)

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the place or structure, but also reasonable warnings must be given as to the specific dangers present. This requirement apparently has come from a number of cases, decided before the passage of the Tort Reform Act, that required government defendants to notify divers of the specific dangers, and not merely prohibit diving by "No Diving" signs.

The case of Davis v. United States, 716 F.2d 418 (7th Cir. 1983), is a significant federal court holding that the government was guilty of willful and wanton misconduct in failing to adequately warn visitors to a national wildlife refuge that swimming and diving in a rocky lake was very hazardous, at other than a beach area. Signs advising "No Swimming" and "No Diving" were held inadequate.

The plaintiff was rendered a quadriplegic, and damages against the government were more than $1,000,000, even after a 75 percent reduction in the amount awarded because of the plaintiffs own negligence. The complete lack of concern for their own welfare exhibited by many plaintiffs injured in diving accidents is remarkable and, yet, many of those injured people are still able to receive large awards because the injuries are so great, as illustrated by the Davis case.

Conclusion

The new legislation in the Tort Reform Act does not mean that local governments will now be liable every time a person is injured while swimming with lifeguards on duty, or in a dive where diving is allowed, or at a place where a warning sign is not present. The statute has provided some additional defenses, but also some additional requirements for communicating warnings.

There must still be a causal connection between the injury suffered by a claimant and the conduct of the local government. This is made clear by the next to the last paragraph of Section 3-109, stating: "[n]othing in this subsection creates a duty of care or basis of liability for personal injury or for damage to personal property." That provision means that all the normal tort law principles still apply.

Where hazardous recreational activities are involved, however, a special effort should be made to acquaint the participants and spectators with the general hazards involved, and especially those hazards which are not apparent.

ABOUT THE AUTHOR:
Henry E. Mueller is an attorney with the law firm of Ancel, Glink, Diamond, Murphy & Cope, P.C., specializing in local government law. The firm represents numerous park districts, municipalities and school districts.

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