When Sledding Becomes...A Slippery Slope

We are often asked when school districts in Nebraska can be held liable for

injuries on district property for non-school events and activities. A recent

case from Papillion La Vista Community Schools raised this very issue. We

wanted to bring the case to your attention, because the district’s insurance

carrier settled a sledding accident for $500,000. According to the lawsuit, a

girl was sledding at the La Vista Junior High School and hit a chain link fence

located at the bottom of the sledding hill. Both of the girl’s legs were

fractured and an artery in her knee was torn. The girl’s parents sued the

school district claiming the district was negligent for having a fence at the

bottom of a hill that was an attractive sledding location, as well as failing to

provide signs warning of the danger. Although the school district settled the

case, the spokesperson for the district stated it is unlikely that the fence will

be removed or that signs will be added. (You can see full Omaha World

Herald article here.)

Some of you may be thinking, “But I thought we had protection under the

Political Subdivisions Tort Claims Act for recreational activities?!?” The

Political Subdivision Tort Claims Act does protect schools from liability when

their facilities are used for “recreational” purposes, but only when certain

conditions are met. The provision applies only when (1) there is no fee

charged by the person or group using the facility (the district can charge

them to use the facility); (2) the district did not “maintain control” of the

facilities while they were being used; and (3) the claim from the injured

person arises either from inherent risks of the activity (like sledding) or a

defect of the premises (like a hole in the floor), unless the school did not fix

the defect within a reasonable time after learning of the defect. NEB. REV. STAT.

§ 13-910(13). We have presented on this issue several times, and we have

amended our standard policies on facility use to align to these protections as

much as possible. If you haven’t done so, we would encourage you to use

this case as a reason to discuss these issues with your board.

The recreational liability protections came about as a result of court cases

where political subdivisions were sued because someone attending an event

held in public facilities was injured. In one case, for example, a patron

suffered an ankle injury after stepping in an animal burrow on a courthouse

lawn during a town celebration. The Unicameral passed the provisions to

encourage political subdivisions to permit others to use their facilities by

protecting them from liability. When schools permit the recreational use of

their facilities, the district generally is only liable for its “gross negligence”

rather than “ordinary” negligence. In other words, so long as the

recreational liability provision applies, schools can’t be held liable for

“ordinary” negligence and must have acted with “gross negligence,” which

means “the absence of even slight care in the performance of a duty

involving an unreasonable risk of harm.” The big issue in these cases is

whether the recreational liability exemption applies. If so, proving “gross

negligence” is much harder for plaintiffs in court.

Of course, just because you may have protection under a statute does not

mean that people cannot still sue you for their injuries. While we don’t know

exactly what legal analysis occurred in the sledding case, we are assuming

the discussion of the recreational liability provisions occurred. The fact that

this case settled may mean only that the school’s carrier wanted to end the

lawsuit. That’s exactly why we encourage you to have these discussions

with your board. You’re probably going to get sued either way, so you

should make sure your facility uses align with your board’s tolerance to

these types of risk.

If you have questions, we recommend that you consult with your school

district’s attorney or call Karen, Steve or Bobby.