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If You Build It, Users and Lawsuits Will Come Building your defenses while building your skate park By Steven J. Kleinman, JD, and Edward F. Dutton, JD Over the past two decades, skateboarding and inline skating have gone through waves of popularity and evolution. Today skaters perform almost unimaginable feats of balance and strength. In addressing the increasing demand for public skate parks, park and recreation providers must carefully balance the public's desire for safe and challenging facilities, with the potential of increased liability exposure. Fortunately, Illinois law currently is conducive to providing death-defying opportunities for earth-bound flight without the heart-stopping risk of catastrophic liability exposure. The key to minimizing liability lies in advance planning and posturing the facility provider for a successful defense before an accident occurs. Remember, skate parks are intended to challenge and engage the physical, mental and emotional resources of the users. Therefore, design and construction vary greatly, taking into consideration the intended users and desired degree of risk, as well as other pragmatic issues such as available space, budget, location and neighborhood concerns. Skate parks may be temporary, semipermanent or permanent, and consist of raised features such as stairs, half-pipes, boxes, rails, ramps and bowls. In some instances, the park may be a boarded rink or converted tennis court or parking lot with portable elements. In other instances, the park may be a sunken concrete area with fixed structures. Regardless of the components used or layout of a given skate park, local public entities can expand public skating opportunities while at the same time limit public liability exposure by adopting and implementing specific risk management measures customized to the particular facility. Although skating-related injuries have increased proportionately with the rapidly rising popularity of the sport, there has been little litigation and virtually no case law decisions arising from these injuries. This can be attributed to the recent decade-long expansion of common law defenses and statutory tort immunities available to public entities and a common-sense sociological phenomenon: adult skaters and parents of minor skaters tend to attribute injury to the inherent risks of the sport, rather than to fault of the facility provider. Of course, public perception and legal climates can and do change. Therefore, public skate park providers (and those contemplating a skate park) are well served by recognizing common theories of liability, applicable legal defenses, and the correlation between risk management measures and the availability of legal defenses. 28 Illinois Parks and Recreation SPECIAL FOCUS The most common theories of personal injury liability arising from skate park use are: • failure to supervise or inadequate supervision; • negligent design or construction; and failure to maintain or repair. Depending on the particular theory, a variety of common law and/or statutory tort defenses may be available to the provider. Metaphorically speaking, a personal injury lawsuit is like a baseball game. To get to first base, the plaintiff must establish a recognized legal duty (i.e., a duty to maintain, to supervise, or to provide adequate equipment). To get to second base, you need a breach of said duty. To reach third base, damages sustained by the plaintiff must be proven. To score (obtain recovery), the plaintiff must establish that the breach of duty was the "proximate cause" of the damages. Fortunately, specific affirmative defenses available to Illinois public skate park providers may bar liability at the many stages of litigation. In essence, depending on the particular defense, the plaintiff may strike out at the plate, be caught trying to steal a base, or get tagged out at home plate. For example, under the common law "open and obvious" defense doctrine, landowners generally owe no duty to guard, warn or otherwise protect patrons from open and obvious dangers: in essence, keeping the plaintiff from reaching first base. Indeed it was held in Ford v. Nairn that the dangers of trampolines—including falling from a height, falling while attempting to land a "trick," or even falling off—are open and obvious to teenagers and adults. Arguably, similar dangers associated with skate-related activities are "open and obvious," precluding the imposition of duty and liability against the skate park provider. However, even if a plaintiff establishes all necessary elements of his or her lawsuit, certain statutory immunities may apply which will protect the skate park provider from liability that might otherwise exist. In other words, "duty" and "immunity" are separate and distinct concepts. If no duty is owed in the first place, there is no need for immunity from liability. The Illinois Supreme Court in Barnett v. Zion Park District highlighted this principal when it stated: "If section 3-108 (b) immunized only non-negligent conduct, then there would be no need for immunity because the conduct would not be actionable in the first place. The fact that the legislature established immunity in section 3-108(b) means that otherwise actionable conduct (i.e., inadequate supervision) was to be covered.
The "no duty" defense is most applicable to claims arising out of failing to provide supervision at skate parks. That is, providers may decide to supervise or not supervise a skate park facility. The advantages of supervision include better adherence with posted safety rules, limiting access to a safe maximum skater capacity, and a faster response time when injuries occur. The disadvantages of providing supervision include costs, training time, employee safety, and the practical problems associated with enforcement of rules. However, Illinois law does not impose or recognize a duty to supervise open skate park facilities. Therefore, where the provider decides not to provide any supervision, the plaintiff cannot reach first base in a lawsuit because no duty to supervise was either owed or assumed by the provider. Indeed, this "no duty" rule is codified in section 3-108(b) of the Tort Immunity Act, which provides that neither a local public entity nor a public employee is liable for an injury caused by failure to supervise an activity on or the use of any public property unless the employee or the local public entity has a duty to provide supervision imposed by common law, statute, ordinance, code or regulation. However, where the facility provider voluntarily undertakes to provide supervision, liability may be imposed if the plaintiff can establish "willful and wanton" conduct. Using the baseball analogy, voluntarily providing supervision is tantamount to an "intentional walk"— you allow the plaintiff to get to first base. Nonetheless, under the statutory immunity of section 3-108 (a) of the Act, if supervision is provided, the plaintiff must then establish that the provider's conduct was "willful and wanton" in order to reach second base. The "no duty" defense also is applicable to theories of liability arising out of the design, location and construction of the skate park or its elements. That is, there are no nationally recognized standards, regulations or guidelines for skate park design, construction or location. Further, Illinois law will not impose a duty to comply with "recommended" (non-mandatory) guidelines. (See Young v. CHA and Alop v. Edgewood Valley Community Association where the court held that local public entities do not owe a duty to comply with the Consumer Product Safety Commission guidelines.) Moreover, under the common law doctrine of public officials' immunity (as codified in sections 2-109 and 2-201 of the Tort Immunity Act), local public entities and their employees are absolutely immune from liability for any injuries that result from the entity's (or its employees') exercise of judgment and discretion in determining the location, design and construction of a skate park. (See White v. Village of Homewood, Johnson v. Decatur Park District, and Harrison v. Hardin County Community Unit School District No. 1.) January/February 2002 29 Public skate park providers are most susceptible to liability arising out of their failure to maintain skate parks and surrounding properties. That is because public entities have a common law duty to maintain public property for its "intended and permitted" use. This "duty to maintain" is codified in section 3-102 of the Act. To establish a duty to maintain, the plaintiff must first establish that the plaintiff was both an "intended" and "permitted" user. For example, a skateboarder using the facility after posted hours is not a "permitted" user but, rather, a trespasser, to whom no duty of care is owned. Alternatively, presuming the use of bikes is prohibited, a bicyclist using the skate park will not be an "intended" user. As these brief examples show, the potential liability exposure of the public facility provider can be reduced greatly through the use of basic, common-sense "tools" such as signage that identifies the intended and permitted users and uses. Signage becomes critical in the determination of whether a patron is an "intended and permitted" user of the facility and the availability of the "no duty" defense and immunity of section 3-102. Signage informs patrons of park hours, safety rules, recommended safety equipment, and related notices and warnings. Patrons using skate parks in violation of posted rules and regulations are extremely susceptible to this "no duty" defense. For example, in Mostafa v. Hickory HilIs Park District, the park district owed no duty to protect children from a manmade lagoon in the park. Although the park district constructed a park that was open to all members of the public, a sign near the playground explicitly prescribed that children must be at least five years old before using the playground and that all children must be supervised. The children who drowned in a nearby lagoon were under the age of five and unsupervised.
Notably, Illinois does not impose a duty upon public entities to actively enforce rules and regulations. Therefore, any legal defense associated with rule or regulation violation should not be negated, even where the public provider is aware of rule infractions. This principle is illustrated in First Midwest Trust Co. v. Britton and Village of Round Lake Beach, where the court held a motorbiker who sustained brain injury was not an "intended and permitted" user of property, despite evidence that the village did not enforce its ordinance prohibiting motorbiking. Additionally, should a plaintiff be able to establish that he or she was an intended and permitted user of the skate park, public providers are statutorily immune from negligence liability pursuant to section 3-106 of the Act, which provides immunity for a condition of recreational property. However, unlike the absolute and unconditional immunities of sections 2-201 and 3-108(b) of the Act, the immunity of section 3-106 contains an exception for willful and wanton conduct. Importantly, in Sylvester v. Chicago Park District, the Illinois Supreme Court extended the immunity of section 3-106 to adjacent public property which, though not itself recreational in nature, "increases the usefulness of public property intended or permitted to be used for recreational purposes." This covers adjacent properties such as parking lots, walkways, restrooms and warming shelters. Therefore, this limited immunity is often available for liability exposure arising out of traveling to and from the actual skate facility. As defined in the Tort Immunity Act, "willful and wanton conduct" means "a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." Any evidence demonstrating a conscious regard or deference for the safety of patrons can belie allegations of willful and wanton conduct and be crucial to a successful defense. Such proactive conduct includes the posting of signage, a scheduled and documented inspection and maintenance system, and the use of an activity-specific "Waiver and Release of All Claims" form for programmed skating activities. In short, it is understandable that given the high-risk nature of skate-related activities and the frequency of severe injuries, public entities may think twice about enabling and encouraging such activities on public property. However, by adopting prudent loss control measures and understanding the myriad potential legal defenses available to public skate park providers, the true risk can remain with the risk-taker, and not the provider.
30 Illinois Parks and Recreation SPECIAL FOCUS Inline Skating / Skateboarding Waiver IMPORTANT INFORMATION The (District/SRA) is committed to conducting its recreation programs and activities in a safe manner and holds the safety of participants in high regard. The (District/SRA) continually strives to reduce such risks and insists that all participants follow safety rules and instructions that are designed to protect the participants' safety. However, participants and parents/guardians of minors registering for this program/activity must recognize that there is an inherent risk of injury when choosing to participate in skating activities. You are solely responsible for determining if you or your minor child/ward are physical fit and/or adequately skilled for skating activities. It is always advisable, especially if the participant is pregnant, disabled in any way or recently suffered an illness, injury or impairment, to consult a physician before undertaking any physical activity. Before any skating activity, please read all facility signage and follow all posted rules and regulations. WARNING OF RISK Skating activities are intended to challenge and engage the physical, mental and emotional resources of each participant. Because skating activities are high-risk, despite careful and proper preparation, instruction, medical advice, conditioning and equipment, there is still a risk of serious injury, including but not limited to head injury, neck and back injury, and bone and joint injury. Specific risks and dangers include but are not limited to striking an irregularity in the riding surface, losing balance, unsuccessfully performing stunts, loss of control, colliding with other skaters or stationary objects, attempting a maneuver beyond one's skill level, acts of God, inclement weather, lack of safety equipment, inadequate or defective equipment, failure in supervision or instruction, and defects in the skating surface or adjacent property. Therefore, all participants are strongly encouraged to wear personal protective equipment and to inspect all facility equipment and skating surfaces prior to engaging in skating activities. WAIVER AND RELEASE OF ALL CLAIMS AND ASSUMPTION OF RISK Please read this form carefully and be aware that in signing up and participating in this skating program/activity, you will be expressly assuming the risk and legal liability and waiving and releasing all claims for injuries, damages or loss which you or your minor child/ward might sustain as a result of participating in any and all activities connected with and associated with this program/activity (including transportation services, when provided).
I recognize and acknowledge that there are certain risks of physical injury to participants in this program/activity, and I voluntarily agree to assume the full risk of any injuries, damages or loss, regardless of severity that my minor child/ward or I may sustain as a result of participating in any and all activities connected with or associated with this program/activity. I further agree to waive and relinquish all claims I or my minor child/ward may have (or accrue to me or my child/ward) as a result of participating in this program/activity against the (District/SRA), including its officials, agents, volunteers and employees (hereinafter collectively referred as "Parties"). I do hereby fully release and forever discharge the Parties from any and all claims for injuries, damages or loss that my minor child/ward or I may have or which may accrue to me or my minor child/ward and arising out of, connected with, or in any way associated with this skating program/activity. I have read and fully understand the above important information, warning of risk, assumption of risk and waiver and release of all claims. If registering on-line or via fax, your on-line or facsimile signature shall substitute for and have the same legal effect as an original form signature. Participant's Name (please print) ______________________ Participant's Signature ______________________ (18 years or older or Parent/Guardian) Date___________________ PARTICIPATION WILL BE DENIED If the signature of adult participant or parent/guardian and date are not on this waiver. Prepared by The Park District Risk Management Agency January/February 2002 | 31 Sample Skate Park Inspection Form
Sample Skate Park Area Warnings and Safety Rules • CAUTION - Inline skating and skateboarding are high-risk recreational activities with inherent risks of serious injury. • Skaters are responsible for inspecting all facility equipment and skating surfaces prior to use to ensure that it has not been vandalized and is safe for skating. Do not use equipment if broken or wet. Contact the Park District if equipment is damaged. (Phone number) • No supervision is provided and participants skate at their own risk. • It is strongly recommended that personal protective equipment such as helmets, elbow pads, kneepads, etc. be used during skating activities. • No personally owned ramps, boxes or other devices may be brought into the facility. • Bicycles and persons not skating are prohibited from using the skating structures. • Glass objects and containers are not allowed in the skating area. • Please be courteous of other skaters and refrain from horseplay. • The skate park use hours are from ____ to ____. By The Park District Risk Management Agency 32 Illinois Parks and Recreation |
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