Liability Risks for After-Hours Use of Public School Property to Reduce Obesity: A 50-State Survey
Research support was provided by the Robert Wood Johnson Foundation through the National Policy & Legal Analysis Network to Prevent Childhood Obesity, a project of Public Health Law & Policy (www.phlpnet.org).
Tom Baker, William Maul Measey Professor of Law and Health Sciences, (firstname.lastname@example.org), University of Pennsylvania Law School, 3400 Chestnut St., Philadelphia, PA 19104.
BACKGROUND: One way to address childhood obesity is to create outlets for children to engage in physical activity. Schools are well equipped to provide an active environment. However, some school boards and administrators are concerned about liability risks. This study describes the legal rules applicable to potential claims against public schools during recreational use of school grounds and facilities.
METHODS: Using traditional legal methods including the use of legal databases and treatises, the legal rules from 50 states were surveyed to determine what type of liability schools face when opening their grounds for after-school recreational use.
RESULTS: Schools would, at most, be held to a reasonable standard of care, under which a person would be found liable if he did not act prudently in a given set of circumstances. This standard is no more onerous than that applied to most activities in the United States. Schools in many states, including California, also receive the benefit of governmental immunity. Furthermore, 21 states have recreational use statutes, which result in more lenient liability rules for injuries during recreational use of school facilities.
CONCLUSIONS: Public schools in most states can be subject to liability in certain cases arising out of recreational use of their facilities. However, schools have important defenses. In combination with empirical research about liability in other contexts, this survey suggests that liability risks are unlikely to justify the denial of recreational access to children who are at risk of obesity.
Physical activity addresses one-half of the “Energy In = Energy Burned” formula featured in the Robert Woods Johnson Foundation's President's message on obesity.1 For this reason, the public health response to childhood obesity must include research on how to increase children's physical activity. One part of that research will focus on motivating engagement in fun, physically active, and safe activities that children can build into their lives. Another part will focus on finding and creating good places for children to engage in those activities.
Although there is surely more to learn about good places for children to be active, there are 2 things that shaped this legal research project. First, many neighborhood schools are good places for children to be active. Second, some school boards and school administrators are worried about opening up their facilities for after-hours recreational activities because of concerns about liability in the event of injuries.2 Those concerns are addressed by this systematic review of the legal rules that apply to claims that may be brought against public schools permitting recreational use of public school grounds and facilities as part of a program designed to promote physical activity among children at risk for obesity.
This article will begin with an overview of the basic elements of tort liability. The next section describes the special legal rules that may limit public schools' legal obligations in the context of public health–based recreational use of school facilities. The article concludes with a review of the statutory limits on the damages that may be awarded against school districts in some states, and a discussion of liability waivers (which would require the children and their families to retain the risk of their own injuries) as a potential risk management tool.
OVERVIEW OF TORT LIABILITY
Tort liability is covered under a body of civil law which is distinct from criminal law. A slip and fall case is a typical tort law claim. Tort law is comprised of 4 elements: duty, breach, causation, and damage.3 To prevail in a tort action a plaintiff must prove (1) the defendant had a legal duty, (2) the duty was breached, (3) the breach by the defendant caused the injury to the plaintiff, and (4) the plaintiff suffered damage as a result. While these elements may be formulated differently in some states, the fundamental concept is the same in all US states.
The Duty element refers to the requirement that the person or entity against whom the claim is brought must be among those who have a legal duty to take precautions to avoid such injuries. The duty element is the most technical and context-specific aspect of liability law, the aspect that differs the most from state to state, and the main focus of this 50-state survey.
The Breach element refers to the requirement that the claimant must prove that the defendant's conduct failed to meet the standard of conduct applicable in a given situation. Causation refers to the requirement that the claimant prove the deficient conduct caused the injury in question. Finally, the damage element refers to the requirement that the claimant must prove a compensable injury, which often involves complex case-specific questions regarding the extent of an injury and the costs of compensating someone for that injury. These elements are fact-intensive inquiries that lie outside the scope of our survey. This survey addresses damages to the extent in which states limit damages by certain statutory caps.
Using legal databases maintained by Westlaw and Lexis, supplemented by references to legal treatises in those states for which treatises exist, a systematic review was undertaken of the legal rules among the 50 states and the District of Columbia that apply to claims that may be brought against public schools permitting recreational use of public school grounds and facilities as part of a program designed to promote physical activity among children at risk for obesity. The review focused on states' rules regarding sovereign and governmental immunities, recreational use of public property, the duties owed to entrants on land, and the existence of any limits on damages that may be assessed against schools in personal injury cases. A table summarizing the laws of each of the states and the District of Columbia (“Summary of Legal Rules Governing Liability for Recreational Use of School Facilities”) is available from National Policy and Legal Analysis Network to Prevent Childhood Obesity at the following URL http://www.nplanonline.org/nplan/products/community-use-charts.
PUBLIC SCHOOLS, THE DUTY ELEMENT, AND RECREATIONAL USE
Public schools are governmental entities that, historically, benefited from legal immunity, meaning they often had little or no legal duty to take any precautions to prevent injuries. This is no longer the case as most states have lifted this traditional immunity, at least in part. As a result, public schools generally have at least some legal duty to take reasonable precautions to prevent injuries, although the extent of that duty differs significantly from state to state. As noted, our research identified no state in which a public school would be held to a legal duty that is more demanding than the ordinary, reasonable care standard.
There are 3 types of legal rules which may exempt public schools, in whole or in part, from the reasonable standard of care legal duty. These rules can be categorized into (1) governmental or sovereign immunity; (2) state recreational use statutes; and (3) the traditional common law treatment of “licensees” who use land owned or occupied by others. In addition, rules relating to mandatory defense and indemnification of school employees may also impact the degree of liability a school would face.
Sovereign and Governmental Immunity
Both sovereign and governmental immunity may bar individuals from filing a claim against a public entity.3 These immunities may limit a public schools' exposure to liability. Under the common law understanding of sovereign immunity, school districts are considered a subdivision of the state government and therefore benefit from the broad immunity granted to the state. In states where schools are granted broad immunities, they may not be subject to lawsuits or other legal action. However, in states in which school districts are subdivisions of local governments, the immunities granted are a more limited form of governmental immunity granted to municipal corporations and other local bodies. All states have waived sovereign and governmental immunity to some extent, with the result that state agencies may be sued in some circumstances. But even where immunity has largely been abrogated, pockets of immunity remain through various exceptions.
This study identified four general approaches to immunity under which states could be classified. In order of the strongest protection afforded to schools the classifications are as follows: (1) sovereign immunity for school districts with very limited exceptions; (2) governmental immunity with limited exceptions; (3) governmental immunity with more substantial exceptions; and (4) general exposure to liability subject to specific exceptions.
Sovereign Immunity. Sovereign immunity offers a very strong immunity that has no judicially created exceptions.3 The benefit of this strong protection is that schools in sovereign immunity states are highly unlikely to be liable for any injuries that take place during a recreational program. The 1 exception to this broad protection is if the school has purchased liability insurance that provides coverage for the claim.3 This immunity does not traditionally extend to state employees, with the result that if schools are statutorily required to defend and indemnify employees (or if they routinely defend and indemnify employees), the practical effect of sovereign immunity is reduced. Defense and indemnification of school employees is discussed further below.
Six states benefit from sovereign immunity (see State table included in Web appendix). In these states, sovereign immunity would operate to protect schools in most cases except to the extent they purchase liability insurance (which generally waives the grant of immunity—Alabama is the exception).
All other states either retain governmental immunity or waive the common law immunities and adopt specific exceptions through a statutory scheme. Twenty-one states retain governmental immunity and limit it through certain exceptions.
Governmental Immunity. Governmental immunity is a common law doctrine that protects municipalities and other governmental entities not considered part of the state-level government in the United States.3 Governmental immunity is more limited than sovereign immunity because there are often a number of applicable exceptions. Governmental immunity operates through a rule/exception framework. Under common law, immunity was the rule subject to a number of exceptions. Two of the most common exceptions to governmental immunity are for proprietary and ministerial activities.
Proprietary activities are activities not traditionally undertaken by government agencies, such as maintaining a hospital, a stadium, or a utility company. Courts look at a number of factors to determine whether an activity is proprietary including whether a fee is paid; whether the activity produces a profit; whether the activity is customarily engaged in by private entities for profit; and whether a governmental immunity statute specifically lists the activity as either “governmental” or “proprietary.” A private organization running a recreational program using public grounds for a profit-making purpose would likely be classified as a proprietary activity. However, a free, school-based recreational program designed to reduce obesity would likely be distinguishable from a profit-making program. Children would not be charged a fee to participate, the school district would not produce a profit, and the purpose of the program would be to promote public health. This program would be more like a school physical education program—commonly regarded as governmental—rather than a proprietary activity.4
Another common exception is for ministerial activities. In deciding which activities are ministerial and, therefore, not subject to governmental immunity, courts will draw a distinction between “operational” and “planning” activities.5 Planning activities would include decisions such as when to open school premises and what type of equipment should be installed, while operational activities would include supervision and maintenance of a school playground. A number of these states will only grant immunity for “planning” or discretionary decisions, with some states broadly interpreting discretionary while others narrowly construe discretionary functions to policy-level decision making. In these states, the decision by a school board to implement and run an after-school obesity-focused recreational program would be protected, but the day-to-day operations would likely be subject to liability unless the state has adopted other exceptions such as California's retention of immunity for hazardous recreational activity.6 However, some states broadly interpret discretionary functions to include day-to-day operational decisions such as the way a teacher conducts a physical education class.7
Many states have enacted a number of additional exceptions to governmental immunity, including the public building exception, the negligent public employee exception, and the insured liability exception. The public building exception waives governmental immunity for liability arising out of defective or dangerous conditions in public buildings. Maine, Michigan, Tennessee, Pennsylvania, and Utah all have some type of exception to the grant of immunity for defective or dangerous conditions on public buildings and grounds.8–12 However, the increased exposure to liability resulting from these exceptions to governmental immunity may be tempered by exceptions to these exceptions, which have the effect of reinstating the immunity. The most important of these exceptions that reinstate immunity is for conditions resulting from discretionary decisions such as design choices.13–15
In addition to the above-mentioned exceptions, a number of states have extended governmental immunity by creating additional categories of protected activities. For example, Illinois and South Carolina law limits liability for injury due to recreational use of public property. In Illinois, plaintiffs can recover only if they can demonstrate that willful or wanton conduct by a public entity or employee caused the injury.16 In South Carolina, plaintiffs must prove grossly negligent conduct by a public entity or employee caused the injury.17 This liability limit is likely to have the same practical impact as a more general recreational use statute would have. In addition, Nevada law immunizes schools from any cause of action based on a failure to inspect any building, structure, or other public work for hazards as well as from any failure to discover a hazard or deficiency on or around the school property.18
The traditional rule/exception framework has been reversed, in many states, by state tort claims acts and similar legislation. As a result, governmental immunity becomes the exception rather than the rule, and the legislation identifies certain activities that are subject to governmental immunity. The most important exception is for discretionary activities as discussed earlier. While the analysis of whether an activity qualifies for the discretionary exception to the no-immunity rule appears to be the same as the formal analysis of whether an activity is discretionary, and thus not subject to the ministerial exception to the immunity rule, it seems courts in states that have explicitly reversed the rule/exception framework are more likely to adopt a narrow definition of discretionary activities.
Defense and Indemnification of School Employees. Governmental and sovereign immunity are legal rules that limit the extent to which governmental organizations may be held vicariously liable for the negligence of school employees, because employees ultimately carry out all state functions. In many of the sovereign immunity states, the immunity granted does not apply to school employees. Instead, employees are protected under a separate immunity—sometimes called public official immunity. This immunity is often narrower than the immunity granted to school districts, and a school employee might be liable for an injury caused by careless conduct without the school also being vicariously liable. However, schools may still face liability indirectly if, by state statute, they are required or permitted to defend and indemnify their employees for work-related lawsuits. There are also a number of states that require schools to purchase liability insurance for their employees. In states that require or permit the purchase of liability insurance for school employees, the practical liability of the school district may be nearly identical to the liability an employee would face—effectively lessening the protection afforded by sovereign or governmental immunity.
There are certain identifiable patterns in the relationship between state immunity and the immunity granted to employees. In California, Idaho, North Dakota, Texas, Pennsylvania, and Florida, employees are afforded broader immunity than school districts. Alaska, Colorado, District of Columbia, Kentucky, Maine, Michigan, Nevada, New Jersey, South Carolina, South Dakota, Tennessee, Utah, and Wisconsin grant substantially identical immunity for employees and school districts. In Alabama, Connecticut, Kentucky, North Carolina, and Rhode Island, employees are afforded a narrower immunity than school districts, which may expand the liability exposure of schools in those states. Defending and indemnifying an employee in a case where the school itself would be immune could significantly increase the liability risk because the school would not otherwise be financially responsible for the liable action. In making sense of all of these immunities and exceptions, it is important to keep in mind that the worst case for a school district is that the school district is simply subject to the ordinary duty to take reasonable care to prevent injuries. This is the same duty of care that affects almost all businesses in the United States and that does not prevent these businesses from engaging in dynamic, risk creating activities. While it may be important for schools to take liability in to consideration when deciding whether or not to open their playgrounds up for after-school use, risk of liability should not serve as an insurmountable obstacle.
Recreational Use Statutes
A number of states that waive sovereign and governmental immunity still offer schools strong protections against liability through recreational use statutes. In these states, the legal duty that would apply to recreational activities on public school grounds is more lenient. A school in 1 of these states would be held liable only for recreational injuries attributable to willful or wanton behavior on the part of the school or its employees, which would be a higher standard of care than the ordinary reasonable care standard outlined above. In these jurisdictions, a school would satisfy its legal duty as long as its employees or agents did not choose to ignore a substantial risk of serious injury without any concern for the safety of others.3
Recreational use statutes vary significantly from state to state in 3 main areas: whether the statute contains an exhaustive or illustrative list of activities; whether the statute applies to public and private lands; and whether the statute applies to undeveloped as well as developed land. In a state like New Hampshire that lists specific activities such as hunting, fishing, and other outdoor activities, schools would likely be unable to avail themselves to the protection of the statute for an after-school obesity reducing recreational program.19
School districts may try to defray liability risks by allowing third parties to organize obesity reducing recreational programs on school grounds. This would be beneficial in those states where a recreational use statute applies only to private parties that provide free recreational access to developed urban land but not to public entities. Hawaii, Massachusetts, and North Carolina have such recreational use statutes.20–22 These statutes may lead states to allow private organizations to structure obesity reducing programs on school property so they can obtain the benefits of the recreational use statutes.
Common Law Protection for Owners of Land
Finally, schools in states that do not have strong recreational use statutes, nevertheless, may be afforded some liability protection based on common law protections extended to all owners of land. These protections classify permitted entrants on land into 2 categories: invitees and licensees.3 Landowners owe invitees the duty to take reasonable precautions to prevent injury, which includes the obligation to take reasonable efforts to discover hidden dangers on the property (eg, a swing with a weak chain). Children using school facilities as part of a special school program intended to increase their physical activity would most likely be classified as invitees (unless there was an applicable recreational use statute). If the school grounds are opened for general recreational use, the people using the grounds would be considered licensees in many states, in which case the duty of care would be somewhat less, with the main difference being a reduced obligation to discover hidden dangers.
LIMITS ON DAMAGES
There are 2 kinds of statutory limits on tort damages that may reduce school districts' liability risk in many states: (1) limits on damages that apply to claims brought against governmental entities under a state tort claims act and (2) limits on damages that apply to tort claims more generally. In addition, a few states have special statutory limits on damages that apply to claims against public schools. In addition to the monetary limits on damages, a number of states bar both punitive and exemplary damages against governmental entities. Research shows that damages limits do reduce the liability risk, as common sense would suggest.23 These limits are controversial as a public policy matter, however, because they disproportionately affect people with the most serious injuries.
Schools may try to manage their risks by utilizing liability waivers. Liability waivers are contracts that provide a service or access to facilities only if a person receiving the service agrees to waive any right to bring suit in the case of injury. Schools would face a serious impediment to using liability waivers for an after-school recreational program because children do not have the power to enter into enforceable contracts. While parents may have the authority to bindingly act on behalf of their children, courts have been reluctant to allow parents to sign away their children's rights to sue for injury.24 Nevertheless, Alaska, Massachusetts, Ohio, and California would permit parents to sign certain types of waivers on behalf of their children.25–28 However, these waivers are unlikely to provide significant liability protection beyond the statutory grants of protections already afforded to school districts for after-school recreational use as discussed earlier. This is because liability waivers are not effective against lawsuits based on breach of more lenient duties such as the duty not to engage in willful and wanton injury.29 Therefore, the added costs and limited benefits of implementing liability waivers would make their use impractical in most cases.
IMPLICATIONS FOR SCHOOL HEALTH
Public schools in most states are subject to liability in some situations that could arise out of the recreational use of school facilities. Nevertheless, public schools are protected by some form of governmental immunity in all states, and they are protected in many states by recreational use statutes from lawsuits arising out of injuries from recreational activities. In addition, the laws of some states limit the amount of damages that may be assessed in tort lawsuits brought against public schools. Even though states are protected to a degree through the above-mentioned legal rules, the view that liability risks are very large is still prevalent. This is largely a result of an effective long-term public relations effort that proclaims that the United States has suffered through a litigation explosion. A large and growing body of research shows that fears over liability are, at the very least, exaggerated.30–32 Although there are real liability risks, this survey of the law of all 50 states leads to the conclusion that these risks are unlikely to be substantial enough to justify denying recreational access to children who are at risk of obesity. Some schools may have good reasons for closing their playgrounds after hours, but it is unlikely that liability risk is among them.