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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. What We’ll Cover. Legal Principles and Recreational Liability

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Managing recreational liability claims and litigation

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


What we ll cover
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


Coverage restrictions for recreation activities
Coverage Restrictions for Recreation Activities

Make sure NYMIR Underwriters are notified!


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

Swimming Pools - Exposures


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

Pool Physical Hazards


Multi use trails fitness trails
Multi-Use Trails & Fitness Trails

  • Exposures

  • Legal Liability

  • Maps

  • Signage


Multi use trails
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


Multi use trails1
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


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

Signage


Multi use trail map
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


Fitness trails
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


Fitness trails1
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


Playground liability
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


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.


Sample playground signs
Sample Playground Signs

Playground Rules

No Running

Playground Closes at Dusk

No Rock Throwing

No Eating

No Littering

No Loitering

Use Age-Appropriate Equipment


Playground liability1
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


Playground liability2
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


Playground liability3
Playground Liability

Common Physical Hazards


Community use of facilities
Community Use of Facilities

Swimming and Diving Center


Liability exposures
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


Risk control techniques
Risk Control Techniques

  • Inspect facilities used by outside groups

  • Quickly respond when notified of a defect or problem

  • Implement a hazard reporting system


Use of facilities form
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,


Insurance from outside groups
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)


Recommended coverages
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


All terrain vehicles
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.


All terrain vehicles1
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.


Alcohol issues
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


Sample alcohol use policy common provisions
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.


Skateboarding
Skateboarding

SKATE PARK RULES AND REGULATIONS


Inline skating exposure
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


Skateboarding1
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


What do underwriters consider when evaluating skateboard parks
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


Skateboarding litigation how litigious are skateboarders
Skateboarding Litigation- Parks?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


Banning skating

Let staff and the community know that skating is prohibited Parks?

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:


Risk control techniques1
Risk Control Techniques Parks?

  • 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


Building a skating facility check local laws ordinances
Building a Skating Facility- Parks?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


Municipal park regulations recreational liability
Municipal Park Regulations & Recreational Liability Parks?

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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