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.