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 We’ll 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 Make sure NYMIR Underwriters are notified!

4. 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 Swimming Pools - Exposures

5. 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 Pool Physical Hazards

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 • NYMIR’s 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. 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 Signage

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 owner’s 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 can’t 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 ATV’s 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 NYMIR’s Experience: • Very few claims • Allegations - overcrowding/debris on surface

34. 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 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 Banning Skating Banning skating is difficult to do. Besides posting signs, a municipality should also:

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