NEEDED: Legal Advice on Having Fun

Hi Readers — Here’s a letter I couldn’t answer. Can any of you? If so, please do! L.

Dear Free-Range Kids: Regarding, “No More Playing in the Dark, Kids.” What would be helpful to know, is how we  — parents, scout leaders, teachers and other carers of children — can find ways around this.  For example:

*Are disclaimers needed to be signed by parents and children?

*Can leaders do spur-of-the-moment activities or must every thing be risk assessed in advance? I’m all for a little sponaneity.

The Telegraph article is sparse on the details. I’d like to know precisely why the scout leader was deemed negligent. There’s not enough info about the environment in which the game was played either.

It concerns me that these cases are still coming to court and being won. How can we turn the tide here?

24 Responses

  1. Whether you’re liable or not, if they’re of the nutty kind you’re going to get sued anyway. So I don’t find the “could I be liable” question particularly useful.

    I’d suggest doing a quick assessment of the parents/carers you’ll be involved with – if they’re kind that might need a “don’t put your poodle in the microwave” disclaimer, don’t keep them around.

    Sadly, “don’t be an idiot, stop wasting court time, go away” rulings are not the going thing in the USA. But even if you won, it’s still a huge time/money/stress expense. So in a country of silly litigation, just pick your friends wisely… it shows pretty quickly.

  2. I don’t have legal advice because I am not a lawyer. However I am an insurance agent and I know that people have a heightened awareness of liability issues. The advice I give to any of my not for profit organizations, corporations or even individuals holding any kind of event is to protect yourself, your business or your family. There are those out there who do not care if it was just an accident. There are those out there who will sue you over a cut finger that they cut while slicing a tomato in your house. (UGH!) Just be sure that you are covered by insurance and/or that you discourage lawsuits with a “hold harmless” agreement. (http://compass.seacadets.org/training/summer10/SAMPLE_RELEASE_NOTICE.pdf)

  3. I agree with Nikki. My husband is in the insurance business, and while we are both runners and have to sign away all rights to sue if we’re injured in races, he’s told me many times that those waivers are not worth the paper on which they’re printed and would not affect a suit. Liability insurance is the answer. Sad to say that’s the way things are now–nothing bad can happen and be considered accidental, no matter how rare and obscure and unpredictable the risk.

  4. It’s important to remember that this is going to be dependent on the jurisdiction. The ruling above was in the UK. The legal landscape will be quite different in the US for instance.

    I do think one of the things everyone can try though, is letting their representatives know that they believe the risk/reward balance has got very out of balance and is detrimental to family life.

  5. No liability waiver on earth will protect you. Someone will sign it, then turn around and sue you anyway. That’s just the way people are these days.

  6. “So in a country of silly litigation, just pick your friends wisely… it shows pretty quickly.”

    What horrible advice. I think what Lenore is really looking for is what we can do to stop this sort of silly litigation rather than advice to judge others quickly and coldly because of it.

    We need to change the legal circumstances, not accept them as inevitable!

  7. First off, this idea that stupid lawsuits are rampant and usually win is as out-of-whack as the idea that there are pedophiles behind every bush. Yes, people do occasionally sue for stupid reasons and are successful. However, most frivolous lawsuits are dismissed by the courts or settle for extremely low amounts just to make the person go away. What we usually see is the media portraying meritorious lawsuits as frivilous by leaving out many of the facts that were presented to the jury and led them to the decision that they made (the McDonald’s coffee case, for example). Or we experience an outrage over the amount of the verdict compared to the injury and fail to understand why it was done that way (again, the McDonald’s case).

    That said, perception of rampant frivolous lawsuits is all that is needed, just like rampant belief that there’s a pedophile on every street corner is all that is needed for helicopter thinking. The best we can do is realize that these cases make the news because they are extremely rare and reporters are not lawyers and generally did not sit in the courtroom to hear the evidence or speak to the jury to find out why they did what they did before reporting. Since most here still seem to think that this is happening every day, I really have very little hope that we will ever get over the idea that the country is rampant with frivolous lawsuits.

    As for waivers. waivers are fairly meaningless. A waiver will only protect you in the rare situation where the person suing is not claiming negligence at all – I went skydiving and everything was perfectly orchestrated but I was still injured due to risks inherent in skydiving. However, waivers don’t protect you against claims that someone involved in the activity was negligent in some way and the injuries stemmed from that negligence and not just the risks inherent in the activity. Odds are that someone who is looking can always find some “negligence” because we’re human and not perfect. A waiver might lead some to not sue because they truly believe that they waived the right to do so but that’s about the best you can expect from them.

  8. Greg – While I agree that we shouldn’t be “quick and cold” to judge, I think Arjen does have a point. Some people are just sue-happy.

    There’s a “rule” in business called the “80/20” rule. It has different applications, but in this circumstance, it would be that 20% of a business’s clients cause 80% of the stress. Get rid of that 20% and you’ve done your company a huge favor.

    As a company, you have every right to “fire” customers. this article highlights a great parallel to what we’re talking about here. Southwest Airlines had a customer who would, after every one of her flights, call or write in to complain about something. The staff finally gave her last letter to CEO Herb Kelleher. He wrote back to her simply: ‘Dear Mrs. Crabapple, We will miss you. Love, Herb.’

    We need to change the legal circumstances, but we also need to protect ourselves in the meantime. Sometimes, that means firing the customer.

  9. Donna is completely correct that frivolous lawsuits are not the norm. The legal system is definitely abused, but it is extremely rare that a silly lawsuit wins in court. It is very important to note that this lawsuit was in England, which has quite different legal precedents than the US.

    As for whether waivers are helpful, it depends on the state in which you live. Some states allow enforceable waivers even for negligence (for instance, I believe Texas allows this, so long as you say “including negligence” in the waiver, but don’t quote be on that), but others don’t. Your best bet is to contact a lawyer in your community who is knowledgeable about tort and personal injury law. There are many lawyers who would be happy to do a little research on what types of waivers or other options would be best for you on a pro bono basis, especially if it is for a non-profit like the Scouts or a school.

    My recommendation is to ask a friend who is a lawyer in your community for a recommendation of someone in town who is a “connector.” In every community there are some lawyers who are really good people and are plugged in to the local legal community. That person will almost certainly be able to connect you to a good local lawyer who engages in pro bono activity.

    Basically, like so many things in life, you can’t just say that either “waivers never work” or “waivers always work.” Some research about your local law is necessary. Also, for those who say that people can always sue anyway, that’s true, but the benefit of a strong waiver is that that case can often be gotten rid of very quickly and at far less expense than a full trial.

    Incidentally, if anyone wants advice about these types of things in either Texas or New York on behalf of a non-profit organization, please feel free to contact me at dearmanc [at] sullcrom [dot] com and I will see if I can get my firm to provide pro bono advice for you.

  10. As a resident of Texas, it always makes me slightly uncomfortable to sign those waivers that say I’m waiving my right to sue in case of negligence. Not that I’m inclined to sue over an accident; I understand the risks of participating in physical activities (like tag :O). But I’m uncomfortable signing a piece of paper that could be interpreted to say “if you leave my 3-year-old in the swimming pool alone to go get coffee and she drowns you are not at fault”. And ALL the waiver forms for every activity out there have that clause.

    This is the other consequence of the perception of rampant frivolous lawsuits. It is seen as such a problem that at some point the legal tool of a lawsuit cannot be used for what it is intended to do – hold places responsible for due diligence in providing a safe service.

  11. Donna–very good point about the perception of lawsuits being the larger problem. But I do see a systemic problem that needs to be addressed that I think plays into the perception. Many schools and organizations have lawyers to give them advice. If the lawyer is asked if the organization is potentially liable they often point to the extreme worst case scenarios rather than offer sound advice based on probability. The problem is that the lawyer has incentive to cover his own butt in this way and no incentive whatsoever to help make a sensible decision.

  12. Not only was the case in England but we know few of the facts surrounding it. It could be that the scout leader was actually negligent in allowing this game to be played in this particular situation for some reason.

    The thing to remember is that these cases are decided by juries (in the US anyway). Juries are just common everyday people, like you and I, who have no real interest in giving someone something for nothing. Occasionally a jury can be sweet-talked by an excellent lawyer, but for the most part, they are not interested in making someone a multimillionaire for nothing while they struggle to pay their own bills. When I read stories like this, my first thought is always “what are we not hearing” because it is rare for a jury to just lose its collective mind and give someone lots of money unless it truly believed it was warranted.

  13. Notes on a litigatious nation – I remember seeing a young (late 20s/ early 30s) Houston Independent School District on the local news about 20 years ago explaining “The parents of my students have one goal as far as their children’s education goes, and that is to find some reason to sue me and HISD for a fortune. Whenever I approach a parent about a problem I’m having with their child their response is ‘If you mess with my kid I’ll sue you for everything you’ve got. That affects my classroom approach.’ ” I was involved with an HISD teacher at the time, and she said it was the same with her kids.

    Ten years ago, I was working a summer program with some inner-city middle-school boys. The brightest, funniest kid in the group was the most impossible to deal with. One day he explained in all seriousness that there was no reason for him to learn, behave or treat anyone with respect, because as soon as he turned 18 he was either going to win the lottery or win a multi-million dollar lawsuit. Needless to say, when the kid’s attitude got him kicked out of the program the foundation’s director got a loud, profanity-laden phone call from the kid’s mom threatening a huge lawsuit over the way we had treated her son.

    Oh, the joys of a society where a work ethic has been replaced by a dream of instant gratification…

    @ Dragonwolf – isn’t Herb great?

  14. Jim said, “Oh, the joys of a society where a work ethic has been replaced by a dream of instant gratification…”

    One can always find an extreme example of anything. There are always a few rotten eggs and even a few schools full of them. What you describe doesn’t jive with my own experiences in the many different communities that I have been involved with; if I were to take this point of view I’d be cynical in the extreme.

  15. I was once on a jury for a personal injury suit. The plaintiff claimed serious injury caused by a falling over a floor mat in a restaurant.

    I listened carefully to both sides, then came to several conclusions.

    1) This woman does have serious orthopedic problems.

    2) It was unlikely one simple trip and fall was a major factor in her condition, especially since she did not seek medical attention for some time afterward.

    3) Even if her condition was caused by falling in the restaurant, putting down a mat isn’t negligent. It probably makes people less likely to fall, because it doesn’t get slippery when wet.

    Everyone else on the jury agreed with me.

    So I do not believe that frivolous lawsuits really are popping up all over. Most of the time, when people go through the trouble and expense and aggravation of taking someone to court, they’ve got a good reason. And most of the frivolous suits are tossed out pretty quick.

  16. It’s also important to remember that jury awards bear little relationship to damages actually paid out. Judges can, and usually do, reduce the amounts of awards, often very drastically (factors of ten or more). For example, in one of the Vioxx cases a few years back, the jury awarded the plaintiff $200 million. However, the case was in Texas and under state law the maximum amount that could be paid out was $2 million, one-hundredth of the jury award.

    Note that these reductions don’t require an appeal by the defendant; they’re an ordinary part of the trial litigation.

  17. It’s hard to give advice because I’m in the US and the case is in England. But with my experience as a teacher and administrator, I will offer the following:
    1)This sounds like a stupid game. That said, I can (right off the bat) think of about 5 different ways to alter the game as described so that a shoulder injury from “sliding into a bench” would not happen.

    2) Donna is right. Usually if your communication with families is clear, the program is a choice and you’ve enough precautions to be “in good faith” people can threaten to sue, but usually don’t, and even if they do, they don’t always win. It’s not that rampant.

    3) I think you have to be very up front with families about how important risk is to growing children, and how much you recognize the important of responsibly managing the risk. I think if you’ve designed a game in the dark and left a bench out, then….ummmm….duh.

    my 2 cents

  18. If you are interested, you can read the actual judgment in the UK Scouts in the dark case here:

    http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2010/1476.html&query=scout+and+association&method=boolean

    Bear in mind this is an appeal case – which meant (under UK law) that the judges could not just overturn the original decision because they might have had a different opinion – they had to find a reason that the previous judge had made an actual mistake in the law or the facts. A majority of the appeal judges couldn’t so they had to let the decision stand.

  19. @kiwimum-
    thanks for providing that. it was pretty interesting. It seems clear to me, after reading and considering, that the danger of the game was actually a bench being out combined with the darkness. It actually confirms for me that the fun/risky parts of the game could be enjoyed with a few more precautions that would not cause injury or compromise the game.

  20. andreas – The judgment kiwimum links to clearly states that the initial judge found that turning the lights off was the main factor as it increased the risk of injury from collision with other *participants, the wall* and the bench. Simply removing the bench would not have removed this risk as the wall and other participants would still have been there (it may have meant that in this case the kid wasn’t injured so badly, but it may not and is not at the crux of the ruling).

  21. Thanks for everyone’s comments here. I think it’s been an interesting situation not least because most of us can imagine being an adult and making a snap decision that then has a more serious consequence. The little voice within me says “That could have been you, making that judgement.”

    What is interesting is reading the text Kiwimum supplied about the discussion that arose. There was quite a bit of debate about the matter and the potential impact of the ruling.

    These things are so tricky! For me, it does demonstrate the value of risk benefit assessments, where one does actually stop and think about the level of risk, the hazards encounters and the possible harm and weighing that against the benefits of the activity.

    Ho hum. Hmm…

  22. If new parents are the type to expect their children to be wrapped in cotton wool, then it is a good idea to tell them what the program is about before their kids start. I don’t know about having them sign a waiver (though I’m pretty sure the Scouts have them), but certainly a description is warranted. Boy Scouting In particular is mildly dangerous by its nature: there are knives and axes, fire and water, sprained ankles and skinned knees.

    An organization might want to *overemphasize* the danger to new recruits’ parents: the parents who storm off in a huff are those you don’t want to have around later when a kid stubs his toe in the dark.

  23. @helenquine—yeah, I was talking about the problem as I saw it based on what I read—and I say this as a 20 year veteran gym teacher…you’re right–a mere collision wouldn’t have been as injurious and I don’t think is ever totally preventable
    @Lihtox
    -I think it’s a GREAT idea to let parent know that there will be risk in a program—and how healthy it is—and then tell them how you plan to manage it (not take it away), then they feel empowered with info and choice—and if they need to bubble wrap their kid, then show them the door.

  24. As an attorney who brings these cases:
    (1) Craziness does not a good case make. Really. Remember we have to convince 12 other members of your community that someone did something wrong.

    (2) The crazy cases you read about are on the internet to read about because they are *crazy*. It’s the man-bites-dog problem. You don’t read about the completely rational, appropriate cases that are brought, or the irrational ones that are dismissed.

    (3) If you don’t want to be sued, be smart. What do I mean by smart? Things within the ordinary purview of the event are OK – using the sky-diving example above, risks consistent with sky diving (you might hit the ground hard) are part of it. Risks that are not part of the activity (plane crashes for lack of maintenance) are not.

    (4) Don’t pretend something bad didn’t happen. The #1 reason I get hired is that the people involved are not honest, or responsive to the person’s complaint. If someone calls & says “I’m hurt” don’t ignore, pretend they’re not hurt, etc. Deal with it. Don’t be mad at them for being hurt. Really, they didn’t want to be hurt.

    Anyway, just my .02.

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