City municipalities across North America are often wary of building skateboard parks for fear of liability. However, as Attorney David Amell states in his doctrine, “Assumption of Risk,” starting in the early 1990s, courts throughout the country established common law doctrines limiting the ability of plaintiffs to recover for injuries sustained while participating in “hazardous” or “risky” recreational activities (HRAs).
The California Supreme Court led this movement with its decision in Knight v. Jewett, (1992) where a petitioner sued for injuries suffered during a touch football game. The defendant argued that the petitioner assumed the risk of injury by participating in the game and won.
Negligence claims related to injuries resulting from sports participation and “risky” activities have since plummeted substantially. Yet, according to industry experts and advocates, public perception needs to catch up with reality.
“The fear of liability has prevented private and public entities from encouraging or allowing risky recreational activities, despite liability-limiting statutes passed by legislatures,” Amell said. Skate parks stand at the forefront of this misconception of liability.
Karen Oxman, principal of Encino, Calif.-based GNW-Evergreen Insurance Services LLC, has written coverage for skate parks for nearly 11 years. She said although it is not a huge market, skate park coverage is accessible. “We have not had the claims develop the way we thought they were going to,” she said, “so the price is very good. In fact, I think it is a little on the low side.”
According to Oxman, an average annual premium a new skate park might have paid in 2006 for $1 million of coverage would have been around $2,500. “I don’t think there is any skate park out there, that I am aware of, that can’t get a quote on something, unless they’ve had a terrible experience.”
Executive director of the Skate Park Association of the United States (SPAUSA), Heidi Lemmon, said the low claims rates don’t surprise her. “Most of the people who get involved in this sport realize they are probably going to get injured,” she said, likening enthusiasts to those who pursue football or hockey.
“The thing that is surprising is how many cities will say they don’t want the liability when proposed with the idea of putting in a skate park. Because, the same people will turn around and put in a dog park,” she said. “Especially when you look at the fact that around 800,000 people in the U.S. end up in an emergency room every year due to dog attacks and $350 million a year is paid in related law suits, It doesn’t make sense.”
Doug Wyseman, a risk management consultant for public entities, said the purpose of having something classed as an HRA is for liability protection. “Participants know the risk, but want to do it anyway so they assume the risk and away they go,” he said.
HRA-designation is statutory though, and laws differ by state. Lemmon cited Washington as a state with clear skate park laws that might serve as a model for others. In 1997, Washington legislation amended the recreational user statute, RCW 4.24.210, expanding covered activities allowed on public and private property to include skateboarding. That meant that Washington cities would not be held responsible for injuries sustained by skateboarders or inline skaters at city-operated skate parks as long as a fee was not charged for use of the park and conspicuous signs were posted to warn of any known dangerous, artificial or latent conditions.
In contrast, tort reform on HRAs in California created loopholes for trial lawyers to go after municipalities in recovering injury claims on public skate parks, Wyseman said. Though, even without an HRA designation, any claim of injury would fall under “assumption of risk,” which is essentially the same the thing.
“You don’t jump out of a plane with out realizing there is some risk. Whether someone tells you it is a high-risk activity or not, you should inherently know it is,” he said.
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