September 2010 - Parks & Recreation - 35

law review

By James C. Kozlowski, J.D., Ph.D.

State Immunity Laws
Limit Public Play Liability

O

n June 14-16, 2009, " The Summit on the
Value of Play " was held at Clemson

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University to consider the role and value of play from the fields of health, education, human
development and recreation. The US PLAY Coalition
was created at " The Summit " to bring together organizations and individuals in support of play and to open
up opportunities for people of all ages, backgrounds, and
abilities to incorporate play into their lives.
The US PLAY Coalition created five committees,
including the Advocacy Committee to support play
through various means. The stated purpose of the
Advocacy Committee is to make coalition members
and others aware of current and proposed legislation and other actions related to play. In so doing, the
Summit noted a " big interest in working on liability
laws " because " Public officials have in many cases
eliminated these opportunities and facilities in fear of
the costs associated with liability litigation. "
To address these concerns, in Call to Action #4,
the Summit called upon the Play Coalition to " Develop the capacity to advocate for legislation in
support of play " including advocacy to " Change liability laws to be friendlier to play. " Proposed implementation steps included " tort reform that promotes
personal accountability and reduces liability, " as
well as efforts to " review and modify public policy
related to risk management and liability " to " establish 'common sense' play laws. Specifically, implementation of a comprehensive play strategy might
include creation of a " model law " at the federal law.
There is no need to reinvent the wheel at the federal level. Particularly in the area of personal injury
liability, i.e., tort law, more law is not necessarily a
good thing. On the contrary, federal intrusion into the
area of tort law, traditionally left to the States, would
only cause needless confusion and conflict of law issues without necessarily reducing liability exposure.

	

In fact, liability of the
federal government is
based on state law, rather
than a separate " model law "
at the federal level. Specifically,
under the Federal Tort Claims Act,
the federal government itself is liable for
negligence " like a private individual " under the
state law of the jurisdiction where the injury occurs.
More importantly, the call to " tort reform " erroneously assumes that existing tort law in various jurisdictions does not already reduce liability
exposure, particularly for ordinary negligence. In
fact, in a number of jurisdictions, as applied to public play in general and public playgrounds in particular, liability is the exception rather than the rule
under various types of limited governmental immunity statutes, including state recreational use statutes (RUS).
As described in the following paragraphs, Virginia, Kansas, South Carolina, Illinois and Texas are
examples of jurisdictions wherein state law already
" reduces liability " exposure for public recreation in
general and public playgrounds in particular by requiring proof of willful/wanton or gross negligence,
rather than ordinary negligence. Unlike momentary inadvertence or carelessness which may indicate ordinary negligence, willful/wanton misconduct
or gross negligence generally requires much more

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SEPTEMBER 2010

Parks & Recreation	 33
September 2010 - Parks & Recreation

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