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Managing Recreational Liability Claims and Litigation

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... signs Incomplete operating records Wet ... person standard applies ... Activities Swimming Pools - Exposures Pool Physical Hazards ... – PowerPoint PPT presentation

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Title: Managing Recreational Liability Claims and Litigation


1
Managing Recreational Liability Claims and
Litigation
  • Leonard Park - Village of Mount Kisco
  • May 3, 2006
  • PRESENTERS
  • Tom Lalor, Esq.
  • Bob Bambino
  • NY Municipal Insurance Reciprocal
  •  

2
What Well Cover
  • Legal Principles and Recreational Liability
  • General Obligations Law and recreational
    liability
  • Waivers and Releases
  • Case examples
  • NYMIR Coverage
  • Included/Excluded Operations
  • Risk Managing Recreational Liability
  • Playgrounds/Community Use of Facilities/ ATVs/
  • Multi-Use Trails/ Skate Parks

3
Coverage Restrictions for Recreation Activities
Beach/Lake Operations Skateboard Parks
Carnivals/Amusement Rides/Fairs Swimming Pool
Fairs/Festivals Watercraft Over 26
Skating Rinks Zoos
Make sure NYMIR Underwriters are notified!
4
Swimming Pools - Exposures
  • Age group at risk 14 and under
  • Preschoolers are particularly at risk
  • Supervision is the key to prevent drowning
  • Barriers (locked fences) drastically reduce the
    chance of drowning
  • Our Experience
  • Slips and falls
  • Horseplay

5
Pool Physical Hazards
  • Loose, damaged or missing drain covers
  • Cloudy water
  • Missing or inaccurate water depth markers
  • Pool fencing is in disrepair
  • Chlorine/pH levels
  • Faulty GFI around pool
  • Missing/ broken rescue equipment
  • Missing safety signs
  • Missing No Diving signs
  • Incomplete operating records
  • Wet/Slippery Surface

6
Multi-Use Trails Fitness Trails
  • Exposures
  • Legal Liability
  • Maps
  • Signage

7
Multi-Use Trails
  • Exposure Analysis
  • Different recreational users share multi-use
    trails hikers, cross-county skiers, mountain
    bikers, snowmobilers, horse riders, etc.
  • Trails are naturally hazardous
  • Are often unpaved - in remove areas
  • On old railroad beds, near canal systems
  • Used when snow-covered
  • Surface subject to weather
  • Can be damaged by overuse
  • Not supervised
  • NYMIRs Claims Experience small number of losses

8
Multi-Use Trails
  • Legal Liability
  • Limited immunity under the Gen. Obligations Law
    (9-103) for certain activities, such as hiking,
    cross country skiing, bicycle riding, sleigh
    riding and snow mobile operation
  • If an activity is not covered under GOL 9-103
  • A reasonable person standard applies
  • Notice is an issue

9
Signage
  • Advantages
  • May be required in some instances (ATVs)
  • State the rules
  • Indicates required personal protective equipment
  • Indicates traffic flow
  • Can help with the defense of claims

10
Multi-Use Trail Map
  • Indicates what activities are permitted on
    which trails
  • Should be made available in park, at trail head,
    in Village/ Town Hall, on web site

11
Fitness Trails
  • Increased demand for fitness trails
  • Typically - 1.5 miles with 13 stations thirty
    minutes to complete
  • Common accidents Slips and falls, misuse and
    poor maintenance of equipment, or insufficient
    participant warm-up before exercising.
  • General warning signs and signs specific to each
    station (with pictorial instructions) are in
    order

12
Fitness Trails
  • Minimum six feet of space around equipment
  • Resilient surface underneath
  • Inspect for surface and equipment defects
    overgrown vegetation obstructions signs are in
    place

13
Playground Liability
  • Introduction
  • There are an estimated 200,000 playground
    equipment-related injuries
  • 75 of these injuries occurred on equipment
    designed for public use most involve falls to
    the surface below the equipment
  • Current equipment itself is generally safer
    less hazardous
  • Slide and swings still cause the greatest number
    of accidents

14

Playground Liability
  • Maintenance and Inspections
  • Develop a comprehensive program for all
    playgrounds
  • Routine Inspections
  • - Documented to identify worn/broken equipment,
    condition of surfacing material,
    review the condition of wear items such as metal
    chains and s-hooks
  • During Program Use - Daily Inspections
  • - Identify broken equipment, general condition
    of surface,
  • graffiti and/or vandalized equipment, garbage,
    etc.

15
Sample Playground Signs
Playground Rules No Running Playground Closes at
Dusk No Rock Throwing No Eating No Littering No
Loitering Use Age-Appropriate Equipment
16
Playground Liability
  • Surfacing Materials
  • Adequate surfacing will decrease the severity of
    injuries
  • Acceptable surfacing materials include, but are
    not limited to
  • Sand, Pea gravel
  • Wood Chips, Fibar
  • - Shredded tire/rubber
  • Rubber/padded tiles
  • Loose fill will naturally move away from impact
    points under swings and at the exit point of
    slides

17
Playground Liability
  • Monitors/Supervisors
  • Supervision isn't an issue for municipal
    playgrounds unless there is an organized activity
    or program
  • There are no supervision ratio requirements for
    playgrounds
  • Ratios should be based upon age level of
    children, type and location of equipment,
    expected activities of students, and the
    condition and safeguards of the play equipment
  • Use 30-40 1 as a guide

18
Playground Liability
Common Physical Hazards
19
Community Use of Facilities

Swimming and Diving Center
20
Liability Exposures
  • Increased demand for municipal facilities
  • ball fields, basketball courts, meeting
    rooms,
  • recreational facilities
  • Outside use increases the likelihood of
  • accidents


  • Accidents often result in claims. Typical
  • allegations include failure to maintain
  • facilities, not responding to notice of a
  • defect to

21
Risk Control Techniques
  • Inspect facilities used by outside groups
  • Quickly respond when notified of a defect or
    problem
  • Implement a hazard
    reporting system

22
Use of Facilities Form
  • Require outside users to complete a Use of




    Facilities form
  • Include rules for facility users, conditions of
    use, language concerning damage, maintenance,
    etc.
  • Include a hold harmless agreement
  • Release Agreement
  • Please read carefully before signing
  • I accept for use as is, the equipment listed on
    this form and accept responsibility for the care
    of this equipment while in my possession.
  • 2. I understand there are inherent and
    other risks involved in the sport for which this
    equipment is to be used snow skinning, ice
    skating,

23
Insurance from Outside Groups
  • Who Should Provide Coverage?
  • Philosophies Differ Generally.
  • - National Organizations/ Regional Clubs/
  • Leagues have coverage in place
  • - Municipalities and schools
  • - Other groups that present a serious
    exposure (groups that use athletic facilities
    routinely)

24
Recommended Coverages
  • Commercial General Liability-
  • - 1 Million Each Occurrence/ 2 million
    Aggregate
  • - Municipality listed as an additional
    insured
  • - No participant liability exclusion
  • - Have attorney/broker/consultant/insurer
    review the certificate

25
All Terrain Vehicles
  • Characteristics
  • Must be registered with the Department of Motor
    Vehicles
  • ATVs may not be operated anywhere in New York,
    except on the owners private property unless the
    ATV is covered by liability insurance
  • Minimum required insurance is 50,000/100,000
    for death, 25,000/50,000 for injury and 10,000
    for property damage in any one accident
  • ATVs cannot be operated on municipal property
    unless it has been specifically designated for
    ATV use with a posted sign
  • Municipalities cant designate all roads for ATV
    use. See V T Law Section 2404.

26
All Terrain Vehicles
  • Municipal Regulations
  • ATVs cannot be operated on municipal property
    unless it has been specifically designated for
    ATV use with a posted sign
  • No municipality may require its own ATV licenses
    or registrations. Municipalities may however ban
    the use of ATVs in parks or on other municipal
    property such as sidewalks
  • ATV operator needs the permission of the private
    property owner before he/she can use the land
  • Cities and villages may also allow the use of
    municipal property for ATV activities. The
    municipality may impose restrictions and
    conditions such as travel on designated trails
    only and hours of operation. A municipality may
    also charge a fee for use of ATVs on public
    lands.

27
Alcohol Issues
  • Alcohol in Municipal Parks
  • A municipality can prohibit alcohol use outright
  • A municipality may adopt a local law prohibiting
    the possession or consumption of alcoholic
    beverages in public places and facilities (parks,
    pavilions, community meeting rooms) by local law
    or regulation
  • A municipality may choose to allow certain types
    of containers (i.e., bottles, cans, kegs) within
    a park with a special permit granted by the
    village

28
Sample Alcohol Use Policy Common Provisions
  • Alcohol is consumed on municipal property only
    with a special permit.
  • Beer and wine in non-glass containers are only
    allowed in specific areas.
  • No one under 21 years of age may possess and/or
    consume alcoholic beverages.
  • If alcohol is being consumed, service of alcohol
    must end one hour before the conclusion of the
    event.
  • If a caterer is used to dispense alcohol, the
    caterer must have all required permits and/or
    licenses. In addition, the caterer must submit a
    certificate of insurance.

29
Skateboarding
SKATE PARK RULES AND REGULATIONS
30
Inline Skating Exposure
  • 3.6 million inline skaters in 1990
    over 37 million in 2000 (many adult participants)
  • Over 102,000 participant injuries
  • Most common reasons for injury
  • - Loss of balance
  • - Striking stationary object

31
Skateboarding
  • 10 million skateboarders (less adult
    participants)
  • 8-10 annual increase in participation
  • Over 300 skate parks in use
  • Over 54,000 participant injuries a 13 increase
    in injuries
  • Most common reason for injury falls from
    irregular surfaces or debris on the riding
    surface

32
What do Underwriters Consider when Evaluating
Skateboard Parks?
  • Size
  • Number of participants
  • Supervision
  • Type and number of ramps
  • Fencing/signage
  • Loss history
  • Use of waivers

33
Skateboarding Litigation- How Litigious are
Skateboarders?
  • Not Very!
  • Injuries are usually not serious
  • Skateboarding culture injuries are part of
    the sport
  • Many participants develop a sense of ownership
    to the parks they helped build
  • NYMIRs Experience
  • Very few claims
  • Allegations - overcrowding/debris on surface

34
Banning Skating
Banning skating is difficult to do. Besides
posting signs, a municipality should also
  • Respond in a timely manner to all notices or
    complaints from citizens
  • Advise the police that people who are violating
    the law should be asked to leave the property
  • Let staff and the community know that skating is
    prohibited
  • Periodically check to see if unauthorized skating
    is occurring and if it is, make reasonable
    efforts to discourage it

35
Risk Control Techniques
  • Require use of personal protective equipment
    (PPE) by all skaters
  • Sign the facility hours of operation, PPE
    requirements, minimum age, sign-in procedures,
    etc.
  • Institute a maintenance program that involves
    daily inspections and clean-up schedules
  • Restrict access to the facility
  • Consider supervision
  • Involve the skating community in planning

36
Building a Skating Facility- Check Local
Laws/Ordinances!
  • Arrange for adequate space - at least 9,000
    square feet
  • Retain an experienced design professional
    contractor. There are no current national
    standards this may change
  • Obtain certificates of insurance
  • Specs should include the maximum number of
    skaters, ramp heights, signage, lighting,
    fencing maintenance
  • Comply with the ADA

37
Municipal Park Regulations Recreational
Liability
  • A copy of this presentation can be found on the
    NYMIR web site
  • www.nymir.org
  • Select Risk Management and scroll to Seminar
    Material
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