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Examining legal rules to protect children from injuries in recreational and sport activities
Journal of Safety Research 36 (2005) 1 – 7 www.elsevier.com/locate/jsr
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Editorial
Examining legal rules to protect children from injuries in recreational and sport activities Terence J. Centner* 301 Conner Hall, The University of Georgia, Athens, GA 30602, USA Received 18 June 2004; received in revised form 24 June 2004; accepted 22 September 2004 Available online 6 January 2005
Abstract Our jurisprudence assigns duties to persons to keep children safe. Under negligence law, a breach of duty causing an accident means the breaching party can be liable for damages inflicted on the injured person. Legislatures are considering new laws that reduce the damages that activity providers will need to pay to injured participants. Under some statutes, injured persons are precluded from maintaining lawsuits. In other cases, injured plaintiffs have a more stringent burden of proving liability. While activity providers may use insurance to pay for accident damages, for some injuries we might hold injured persons responsible. Four suggestions are offered as mechanisms to reduce tort litigation. D 2004 National Safety Council and Elsevier Ltd. All rights reserved. Keywords: Accidents; Child safety; Legislation; Liability; Negligence; Tort
1. Introduction Humans invest a great deal of energy in deterring accidents and keeping their children safe. An important factor in these efforts is the development of a legal system that assigns liability for failing to employ reasonable care in providing for the safety of minors. Parents, supervisors, activity providers, and others have responsibilities with respect to preventing injuries to children. For some situations, it is assumed that children cannot appreciate dangers so that others need to take action to prevent children from being injured. Simultaneously, accidents involving children show legislatures and courts struggling to maintain safety without overburdening defendants. The only way to totally protect children is to preclude them from participating in risky sport and recreational activities. While this can be achieved by adopting age restrictions for certain activities, at some point, they will try an activity. No matter what the age of a child, some will have accidents. Their development requires
* Tel.: +706 542 0756; fax: +706 542 0739. E-mail address: [email protected].
opportunities to gain experiences through new activities. Thus, liability rules attempt to protect children while allowing them to be challenged so they can develop and grow. Legislatures have choices in assigning responsibilities for safe activities. Liability for accidents can be assigned to parents, supervising personnel, property owners, providers of recreational and sport activities, governments, manufacturers, or minors themselves. Persons responsible for the well-being of minors should incur liability if they fail to use sufficient care. But who is responsible and what is sufficient? Accidents involving injuries to children present difficult choices. This paper examines the assignment of liability in accidents involving children to illuminate choices available to our society.
2. Liability in Negligence Under American jurisprudence, persons who are negligent and injure another are responsible for damages (Bernstein, 2002). Four general requirements are needed to establish liability for negligence in tort. First, there needs to be a duty owed by one person to another. Second, there must be a breach of the duty resulting in an injury. Third, a
0022-4375/$ - see front matter D 2004 National Safety Council and Elsevier Ltd. All rights reserved. doi:10.1016/j.jsr.2004.09.004
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T.J. Centner / Journal of Safety Research 36 (2005) 1–7
relationship must exist between the breach and the injury. Finally, there must be damages. Injured persons have the burden of proving that someone else is at fault and should pay for the damages accompanying the injury. Negligence law thereby employs fault-based liability through lawsuits. Sometimes restitution is made voluntarily. The defendant admits fault and pays for the damages. For other situations, the person causing the injury will refuse to pay. The injured person will need to decide whether to accept the damages without compensation or to sue to recover damages. Those who seek compensation generally secure an attorney. The attorney then files a lawsuit asking for damages to cover the plaintiff’s injuries. A breach of duty is often the linchpin for determining who will be liable for injuries to another. In many states, different duties of care are owed depending on the relationships among persons. When property owners invite others to come onto their property for business purposes, they have a greater duty to keep their property safe as opposed to entrants such as trespassers. Most states assign different duties to persons within four categories of entrants: (1) invitees, (2) licensees, (3) recreational users, and (4) trespassers. Every state has further altered negligence rules with exceptions for Good Samaritans and other categories of persons who are engaged in good deeds (Centner, 2000). Thus, a confusing array of duties exists under negligence law. 2.1. Duties to invitees An invitee is a person who is induced or invited to come upon the premises of the owner for any lawful purpose (Official Code of Georgia Annotated, 2002). Customers patronizing a business establishment are invitees. Invitees are owed the greatest amount of care. Property owners are liable to invitees for failure to exercise reasonable care in keeping their property safe (Connecticut Supreme Court, 1992). A similar duty is owned to entrants by persons renting property, managing property, or in charge of property. They must keep the property under their control safe for others. The duty of reasonable care does not guarantee the safety of persons coming on property for business purposes. Rather, the duty involves the exercise of appropriate care under the circumstances to prevent injury. This ordinarily is a question for the jury. When considering a duty, a breasonable manQ standard is used: what would a person exercising ordinary perception, intelligence, and judgment have done given the circumstances (Pennsylvania Supreme Court, 2000). 2.2. Duties to licensees A licensee is a person who is neither a customer, servant, nor trespasser. A licensee does not stand in any contractual relationship with the owner of the premises and is expressly
or impliedly permitted to go on the premises. Friends are licensees. A property owner owes a licensee the duty to avoid wanton or willful injury. This duty of care is not as exacting as the duty owed to invitees (North Carolina Supreme Court, 1996). It involves refraining from creating a dangerous condition, and may include disclosing hidden defects that could cause an accident. Possessors of property who know (or have reason to know) of a condition involving an unreasonable risk of harm need to exercise reasonable care to make the condition safe (Florida District Court of Appeal, 2004). 2.3. Duties to recreational users Every state has passed special legislation known as recreational use statutes dealing with liability for recreational users. Persons who come onto another’s property for enumerated recreational activities are not licensees or invitees but rather are recreational users. Property owners do not guarantee that their premises are in safe condition for recreational activities (Virginia Code Annotated, 1997). The duty owed to recreational users is analogous to the duty a property owner owes to a trespasser (California Court of Appeal, 1987). In fact, one state uses the adult-trespasser standard to determine the duty owed under its recreational use statute (Minnesota Court of Appeals, 2002). Thereby, the statutes help reduce the number of situations where property owners and operators incur liability for accidents on their premises. 2.4. Duties to trespassers Although trespassers are breaking the law, an owner of property owes duties to these persons. If owners know trespassers are entering their property, willful or malicious failure to guard or warn against dangerous conditions may lead to liability. Property owners have a duty to protect persons from dangerous conditions. However, landowners generally do not have a duty to erect fencing or provide warnings of obvious dangers. States often have statutes covering trespass actions.
3. Principles for assigning liability Liability in tort apportions responsibilities according to principles of fairness and social norms (Nelson, 1999). However, over time, a society’s beliefs may change. American tort law shows some drastic changes over the past half century. In the 1950s, most states had a contributory negligence system that precluded plaintiffs who contributed to the accident from collecting damages. Due to the hardship on plaintiffs who were only slightly at fault, states changed to comparative negligence systems. The fault of plaintiffs and defendants are compared and recovery is permitted for the proportion of damages
T.J. Centner / Journal of Safety Research 36 (2005) 1–7
assignable to defendants. Other developments include legislation allowing class actions that expand liability and the reduction of immunity for governments. Several legal concepts are important in determining who is liable for an accident. First, an assumption of risk doctrine applying to all persons assigns responsibilities for their actions. Second, parents have duties to their children. Persons supervising children also have a special duty to keep them safe, and an attractive nuisance doctrine may apply to children to protect them from hidden, attractive dangers. 3.1. Assumption of risk Lawsuits for damages from accidents involve placing liability on those responsible for a breach of a duty of care. Risks and corresponding duties are assigned by common law, legislative enactments, and judicial pronouncements. When two or more persons are at fault, state law apportions damages under a system of comparative negligence. Multiple defendants, or both plaintiffs and defendants, may incur liability for some of the damages of an accident. Under common law, persons who take part in dangerous activities assume the accompanying risks. The doctrine of assumption of risk operates to preclude injured persons from placing liability on others where the injured persons should be responsible for their actions. Generally, participants who freely choose to engage in an activity and are injured due to no fault of another are governed by this doctrine. No other person has breached a duty so that participants are entirely responsible for their injuries. Participants who voluntarily choose to take part in a sport or recreational activity are governed by the implied assumption of risk doctrine (Roseman-Orr, 1999). The providers perform their duty in making the premises safe so that the risks of the activity are obvious to the participants (New York Court of Appeals, 1997). Risk normally a part of an activity is assumed by the participant. Participants are responsible for related injuries of risks that are so directly associated with the activity. In some states, the acceptance of risks is known as primary assumption of risk (California Supreme Court, 1992; New York Court of Appeals, 1997). Under this doctrine, a provider offering an activity has no duty with respect to obvious and inherent risks (New York Court of Appeals, 2003). In the absence of a duty, there is no obligation to eliminate risks or to protect persons against injuries. Rather, risks that are part of the activity are assumed by the participants. Primary assumption of risk serves as a defense for recreational and sport providers, businesses, and property owners. 3.2. Parental oversight Parents have a duty to help their children grow and mature into responsible adults. This means that parents make decisions on the activities that children can handle and determine when a child is ready to engage in an activity
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without adult oversight. In most cases, this is a progression consisting of small steps. Parents allow their children to assume more responsibility after they have successfully handled a simpler situation. Although parents have duties, our legal system also assigns responsibilities to others. This may result in a conflict between the responsibilities of a parent as opposed to others. A recent case from New York shows tort law negating parental responsibility. A child was injured when he trespassed on the defendants’ construction site and a steel ramp crushed his finger (New York County Supreme Court, 2003). The child and his parents claimed that the construction site was not safe and that the defendants (the property owner and construction company) were negligent in not doing more to make their equipment safe for trespassing children. The court agreed. Despite testimony from the child and his mother that the child was permitted to play in the area of the construction site unsupervised by adults, the court decided that the child was too young to accept risks. The primary assumption of risk doctrine was found to be inapplicable because the child could not fully appreciate the risks involved with trespassing on construction equipment. Thus, the property owner and construction company could be sued for negligence. By determining the issue to be assumption of risk by the child, the court avoided the question of parental duties. The defendants had testified that they sent all nearby residents letters advising them of the construction work. If parents feel it is safe for their child to play unsupervised in a neighborhood where construction is occurring, they impliedly feel that their child is of sufficient age and maturity to accept the risks that accompany such activity. As suggested by the dissenting judge, in denying primary assumption of risk, a strict liability regime governs construction sites involving trespassing children. It is not clear that landowners should be held to such a burdensome standard. 3.3. Duty to supervise Our jurisprudence places considerable emphasis on fostering safety by allowing suits for negligent supervision. Injured persons may sue property owners or businesses for negligence in failing to supervise. Where there are supervisory personnel, the argument involves insufficient care in the performance of their duties. If evidence exists to support either of these arguments, there may be liability. Under legal precedents, courts defer to juries in deciding whether the absence of reasonable supervision contributed to an accident. Difficult issues are presented by allegations involving the lack of supervision during recreational activities. For example, it is well established that the failure to have lifeguards at public swimming pools presents issues of negligence. Lifeguards are negligent if they fail to take appropriate action to keep swimmers safe (Texas Court of Appeals, 1996). If there are an insufficient number of lifeguards, this may also give rise to liability. Property
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owners and supervising personnel must deter accidents rather than expecting the public to avoid situations that may lead to injuries. A tort system attempts to reconcile competing choices involving the deterrence of dangerous situations, the responsibilities of staff overseeing recreational activities, and the responsibilities of participants. Rational people might resolve the disputes differently. In fact, the same accident might be decided differently in California as opposed to Georgia. But the larger question is whether legislatures might want to alter liability for supervision by placing greater responsibility on individuals. 3.4. Attractive nuisances Many states have adopted an attractive nuisance doctrine whereby a special duty is prescribed to protect trespassing children who are unable to perceive possible dangers. It applies when a child is attracted by a dangerous structure or condition on the property. The structure or condition must be unusually attractive to children, the danger must not be apparent to immature minds, and the owner should know of the structure or condition. The doctrine is restricted to trespassing children who are physically injured due to an artificial condition of the land. Thus, injuries to children from natural and common objects (such as rocks, ponds, ladders, and trees) are not governed by the attractive nuisance doctrine (Washington Court of Appeals, 2000). Qualification under the attractive nuisance doctrine generally involves five requirements. First, the possessor of land must know (or have reason to know) that children are likely to trespass (Minnesota Supreme Court, 1999). Second, the artificial condition needs to be one that the possessor should recognize could cause an unreasonable risk of serious bodily harm to children. Next, injured children must not have discovered the condition or recognized its risk due to their age. Fourth, the utility of the condition and the burden of eliminating the danger are compared with the risks presented to children. Finally, the possessor must have failed to exercise reasonable care in eliminating the danger or otherwise protecting trespassing children. Allayed against the attractive nuisance doctrine are concerns about placing too many duties on landowners and the preservation of property rights. The doctrine considers the foreseeability of harm and measures risk against duties in delineating responsibilities (Eckner, 2002). Landowner-defendants may be able to defeat an allegation in negligence if they can show that the minor (as the plaintiff) does not meet all of the elements required to show an attractive nuisance. In a case where a 12-year-old boy jumped off a roof into a pile of mats, he testified that he was initially too scared to make the jump (Washington Court of Appeals, 2003). The court interpreted this testimony as showing the boy comprehended the danger involved. Thus, there was no attractive nuisance so the accident was governed by ordinary negligence.
4. Legislative expansion of exceptions to liability The need for exceptions to tort liability has been recognized for hundreds of years. One of the obvious exceptions arose from the principle that people should not be able to sue the king. Under common law, a doctrine of sovereign immunity developed whereby governments did not incur liability for torts (Sentell, 1998). Tort immunity for states, agencies, public officials, local governments, school districts, and other governmental entities has developed into a bewildering set of rules created by legislative action and judicial precedents. In some cases, legislatures have decided that sovereign immunity should not apply so have enacted laws making governments liable for injuries from selected activities (New Jersey Statutes Annotated, 2004). Other historic immunity principles are part of common law and have been expanded by state statutes. Good Samaritan laws allow persons to assist others without incurring liability for mistakes that may injure the victim being helped (Veilleux, 1989). Gleaning laws protect donors of food and other items from liability (Centner, 1997). 4.1. Inherent risk statutes During the past 20 years, citizens and interest groups have petitioned state legislatures for new legislation regarding equestrian and sport activities (Hansen-Stamp, 1998). They want immunity from accidents involving inherent risks. Some laws responded to an insurance crisis whereby some businesses were not able to secure liability insurance at reasonable prices (Bagley, 1993). Other laws were couched as providing economic assistance to a deserving state industry through the reduction of costly tort lawsuits (Tennessee Code Annotated, 1993). By limiting legislative changes to small sectors of the economy, interest groups were able to secure changes in tort rules that restrict the number of successful lawsuits. Legislative bodies have employed three distinguishable strategies to assist qualifying persons in avoiding liability for injuries and property damages. The first strategy is to provide that qualifying individuals are not liable for damages except in certain situations. A second strategy alters the duty owed to selected persons to curtail situations that qualify an aggrieved plaintiff to relief. A third strategy prevalent in sport responsibility statutes is to have participants assume risks related to a sport. Participants assume responsibility for injuries that are a part of the inherent danger of the sport. All of the immunity strategies operate to reduce actions for damages from accidents. Under some statutes, injured persons are stopped from maintaining their lawsuit due to a defense. In other cases, injured plaintiffs may have greater difficulty in establishing a case for damages. Immunity legislation has reduced both the number of lawsuits being filed and the number of successful recoveries.
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4.2. Injuries to children in sport activities Courts and legislatures continue to struggle with the assignment of liability for accidents of minors engaged in sport activities. If a child is injured while participating in a sport, who should pay for the damages—the parents or the sport’s provider? Parents are responsible for the well-being of their offspring. They decide whether their children are ready to engage in a given sport activity. If a child is not ready to assume the risks, parents need to prohibit participation. Parents decide what activities are too dangerous for their children. Simultaneously, sport providers are responsible for providing safe activities. But who is responsible if a child is injured due to the child’s failure to appreciate the dangers of the sport? Our legal jurisprudence shows a reluctance to assign responsibilities to parents when other options are available. In choices involving the assignment of responsibilities between parents and sport providers, courts generally assume that the providers should have taken further action to safeguard children from accidents. A recent ski accident from New York shows a reluctance to have people assume responsibility for their lives (New York Supreme Court, Appellate Division, 2003). A 7-yearold child, who had been skiing for two seasons, was hurt while using a chairlift. She had an accident and was injured. Rather than accept responsibility, she and her mother sued the ski operator. They argued that the operator had not given sufficient instructions on how to use the chairlift. The operator moved to dismiss the case under a state law providing that ski operators are relieved from liability for risks inherent in the use of a chairlift. The appellate court felt the law should not apply. The judges questioned whether a 7-year-old novice skier could bfully appreciate the risks associated with the use of the chairlift.Q Because she might not appreciate the risks, it was found that she could not assume liability for the risks. No responsibilities were assigned to the parents. While it is convenient to place responsibilities for such accidents on property owners and providers of sport activities, there are alternatives. Parents might bear greater responsibility. After all, parents have a responsibility to keep their children safe, which involves prohibiting minors under their control from participating in activities that are too risky or dangerous. The parents of the 7-year-old skier obviously felt their daughter could handle the risks of skiing. Simultaneously, the provider of the activity impliedly acquiesced to the parental decision that the child could manage the risks of skiing. Why in hindsight did the court decide that the parental decision was irrelevant? The assignment of liability affects who must buy insurance to cover accidents and prices charged to participants. Under legal principles, holding providers of risky activities responsible means they must buy more insurance and increase participation fees to cover the costs of damages from accidents involving careless participants. Conversely,
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parents are not expected to insure their children who participate in these sports. As a result, the assignment of liability to providers increases the costs of risky recreational and sport activities. The consequence of this policy is that fewer people can afford to participate. Venturous activities become too expensive for persons with low or even average incomes.
5. Conclusion Our society recognizes special rules requiring persons to employ special care to keep children safe. Parents, property owners, supervisors, and others are responsible for taking appropriate actions and precautions so that minors do not incur injuries. While established legal principles exist to be used in assigning liability for accidents, legislatures and courts are being asked to consider changes. In an attempt to reduce lawsuits, new legislation has been enacted that places the liability for inherent risks on activity participants. Interpretations of parental responsibilities can also modify who is liable for accident damages. Individuals suffering wrongful losses need to receive compensation. However, some accidents occur due to the carelessness of the participant-plaintiff. Damages for these accidents might be the responsibility of the plaintiff, or in the case of children, of the parents. When legislatures enact immunity statutes, they adjust the dividing line between liability and no liability. Some worthy justification serves as a basis for the termination of the ability of selected injured persons to place liability on others. Immunity statutes provide choices whereby persons may be held responsible for their injuries. Adopting the premise that additional personal responsibility to reduce litigation is desirable, four provisions from various immunity statutes might be considered. 1.
2.
Liability for inherent risks. A statute can provide that participants assume responsibilities for the inherent risks of activities. While this principle already exists in some states under common law assumption of risk (New York Supreme Court, Appellate Division, 2000), other states might need to be more proactive with new statutory dispensation incorporating this principle for accidents. Although a broad range of inherent risk statutes legislate this principle for enumerated sport activities, the coordination of a state’s immunity statutes could simplify negligence law for practitioners and the general public (Centner, 2000). Giving effect to release provisions. Many states decline to shield defendants from liability where parents of the injured minors have signed releases (King, 1992). Courts find that releases by minors are against public policy (Washington Supreme Court, 1992). To counter such presumptions, legislatures might amend liability provisions to acknowledge the ability of individuals, including
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3.
4.
T.J. Centner / Journal of Safety Research 36 (2005) 1–7
parents of minors, to enter into reasonable contracts under which activity providers are released from liability for accidents involving participant negligence. For example, an Ohio court found that bparents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sport activities where the cause of action sounds in negligenceQ (Ohio Supreme Court, 1998). New presumptions regarding care. Legislatures can enact statutory provisions that enumerate presumptions regarding the duty of care owed to participants. For example, Hawaii provides for equine activities that bthere shall be a presumption that the injury, loss, damage, or death was not caused by the negligence of an equine activity sponsor, equine professional, or their employees or agents, if the injury, loss, damage, or death was caused solely by the inherent risk and unpredictable nature of the equineQ (Hawaii Revised Statutes Annotated, 1995). While presumptions do not eliminate lawsuits, they make it more difficult for injured plaintiffs to convince the trier of the fact that they deserve compensation. Removing statutory duties. State statutes that intend to provide immunity may inadvertently impose duties on providers of activities. For example, in a case considering an accident to a plaintiff during a whitewater rafting expedition, a state supreme court found that the statute providing immunity to commercial whitewater outfitters also established a statutory standard of care (West Virginia Supreme Court, 1991). Any release that attempted to exempt an outfitter from liability for breach of this duty was unenforceable. This judicial finding suggests that legislatures might decrease the liability of activity providers by refraining from enacting laws that establish duties. In addition, legislatures might rescind laws that establish duties.
The intent of these ideas is to slightly shift responsibilities for safety to persons most familiar with a child’s abilities and persons best able to direct the child in avoiding unsafe situations. The suggestions do not obviate the duties for owners of sport and recreational facilities to provide a safe place for children to enjoy activities. However, a state’s liability law does not need to insure children for mishaps that are the responsibility of the child and the child’s parents. By altering existing negligence law, some needless litigation may be eliminated. References Bagley, K. (1993). Safety programs: The financial impact on insurance. North American Horsemen’s Association 1993 Yearbook of News. Paynesville, MN7 Ark International Group. Bernstein, A. (2002). The communities that make standards of care possible. Chicago-Kent Law Review, 77, 5 – 69.
California Court of Appeal. (1987). Charpentier v. Von Geldern. California Reporter, 236, 233 – 242. California Supreme Court. (1992). Knight v. Jewett. Pacific Reporter Second, 834, 696 – 724. Centner, T. J. (1997). The new dPick-Your-OwnT statutes: Delineating limited immunity from tort liability. University of Michigan Journal of Law Reform, 30, 743 – 779. Centner, T. J. (2000). Tort liability for sport and recreational activities: The expansion of statutory immunity for protected classes and activities. Journal of Legislation, 26, 1 – 44. Connecticut Supreme Court. (1992). Morin v. Bell Court Condominium Association. Atlantic Reporter Second, 612, 1197 – 1203. Eckner, S. F. (2002). Safeguard trespassing children and preserve property rights: The Ohio Supreme Court decision in dBennett v. StanleyT to implement the Second Restatement of Torts’ version of the attractive nuisance doctrine. University of Cincinnati Law Review, 71, 255 – 278. Florida District Court of Appeal. (2004). Longmore v. Saga Bay Property Owners Association, Inc. Southern Reporter Second, 868, 1268 – 1270. Hansen-Stamp, C. (1998). Recreational injuries and inherent risks: Wyoming’s Recreational Safety Act—An update. Land and Water Law Review, 33, 249 – 280. Hawaii Revised Statutes Annotated. (1995). Section 663B-2. King Jr., J. H. (1992). Exculpatory agreements for volunteers in youth activities—the alternative to dNerfRT tiddlywinks. Ohio State Law Journal, 53, 683 – 759. Minnesota Court of Appeals. (2002). Bredvick v. City of Morris. Minnesota Appellate LEXIS, 161, 1 – 18. Minnesota Supreme Court. (1999). Croaker v. Mackenhausen. North Western Reporter Second, 592, 857 – 863. Nelson, W. E. (1999). From fairness to efficiency: The transformation of tort law in New York, 1920–1980. Buffalo Law Review, 47, 117 – 226. New Jersey Statutes Annotated. (2004). Section 59:4-2. New York County Supreme Court. (2003). Clark v. Interlaken Owners, Inc. West’s New York Supplement Second, 770, 58 – 62. New York Court of Appeals. (1997). Morgan v. State of New York. North Eastern Reporter Second, 685, 202 – 210. New York Court of Appeals. (2003). Marcano v. City of New York. North Eastern Reporter Second, 784, 73. New York Supreme Court, Appellate Division. (2000). Sajkowski v. Young Men’s Christian Association. West’s New York Supplement Second, 702, 66 – 68. New York Supreme Court, Appellate Division. (2003). De Lacy v. Catamount development corporation. West’s New York Supplement Second, 755, 484 – 486. North Carolina Supreme Court. (1996). Newton v. New Hanover county board of education. South Eastern Reporter Second, 467, 58 – 67. Ohio Supreme Court. (1998). Zivich v. Mentor soccer club. North Eastern Reporter Second, 696, 201 – 208. Official Code of Georgia Annotated. (2002). Section 51-3-1. Pennsylvania Supreme Court. (2000). Young v. Commonwealth. Atlantic Reporter, 744, 1276 – 1280. Roseman-Orr, A. I. (1999). Recreational activity liability in Hawaii: Are waivers worth the paper on which they are written. Hawaii Law Review, 21, 715 – 745. Sentell Jr., R. P. (1998). Tort claims against the state: Georgia’s compensation system. Georgia Law Review, 32, 1103 – 1194. Tennessee Code Annotated. (1993). Section 44-20-101. Texas Court of Appeals. (1996). University Preparatory School v. Huitt. South Western Reporter Second, 941, 177 – 182. Veilleux, D. R. (1989). Construction and application of bGood SamaritanQ statutes. American Law Reports, 68, 294 – 313. Virginia Code Annotated. (1997). Section 29.1-509. Washington Court of Appeals. (2000). Weisenburg v. Townsend. Washington Appellate LEXIS, 1619, 1 – 17. Washington Court of Appeals. (2003). Fritts v. Clover park school district. Washington Appellate LEXIS, 2895, 1 – 9.
T.J. Centner / Journal of Safety Research 36 (2005) 1–7 Washington Supreme Court. (1992). Scott v. Pacific west mountain resort. Pacific Reporter Second, 834, 6 – 16. West Virginia Supreme Court. (1991). Murphy v. North American River Runners, Inc. South Eastern Reporter Second, 412, 504 – 513.
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Terence J. Centner is a Professor with The University of Georgia College of Agricultural and Environmental Sciences, Athens, Georgia, USA. He received a B.S. in Agriculture from Cornell University, J.D. from the State University of New York at Buffalo, and an LL.M. from the University of Arkansas. Centner was an Alexander von Humboldt Stiftung research fellow at the University of Gfttingen and lectured as a Fulbright Senior Scholar at the University of Mannheim. His research program involves the policy analysis of legislation and the development of new regulatory institutions to respond to market imperfections.
www.nsc.org
Editorial
Examining legal rules to protect children from injuries in recreational and sport activities Terence J. Centner* 301 Conner Hall, The University of Georgia, Athens, GA 30602, USA Received 18 June 2004; received in revised form 24 June 2004; accepted 22 September 2004 Available online 6 January 2005
Abstract Our jurisprudence assigns duties to persons to keep children safe. Under negligence law, a breach of duty causing an accident means the breaching party can be liable for damages inflicted on the injured person. Legislatures are considering new laws that reduce the damages that activity providers will need to pay to injured participants. Under some statutes, injured persons are precluded from maintaining lawsuits. In other cases, injured plaintiffs have a more stringent burden of proving liability. While activity providers may use insurance to pay for accident damages, for some injuries we might hold injured persons responsible. Four suggestions are offered as mechanisms to reduce tort litigation. D 2004 National Safety Council and Elsevier Ltd. All rights reserved. Keywords: Accidents; Child safety; Legislation; Liability; Negligence; Tort
1. Introduction Humans invest a great deal of energy in deterring accidents and keeping their children safe. An important factor in these efforts is the development of a legal system that assigns liability for failing to employ reasonable care in providing for the safety of minors. Parents, supervisors, activity providers, and others have responsibilities with respect to preventing injuries to children. For some situations, it is assumed that children cannot appreciate dangers so that others need to take action to prevent children from being injured. Simultaneously, accidents involving children show legislatures and courts struggling to maintain safety without overburdening defendants. The only way to totally protect children is to preclude them from participating in risky sport and recreational activities. While this can be achieved by adopting age restrictions for certain activities, at some point, they will try an activity. No matter what the age of a child, some will have accidents. Their development requires
* Tel.: +706 542 0756; fax: +706 542 0739. E-mail address: [email protected].
opportunities to gain experiences through new activities. Thus, liability rules attempt to protect children while allowing them to be challenged so they can develop and grow. Legislatures have choices in assigning responsibilities for safe activities. Liability for accidents can be assigned to parents, supervising personnel, property owners, providers of recreational and sport activities, governments, manufacturers, or minors themselves. Persons responsible for the well-being of minors should incur liability if they fail to use sufficient care. But who is responsible and what is sufficient? Accidents involving injuries to children present difficult choices. This paper examines the assignment of liability in accidents involving children to illuminate choices available to our society.
2. Liability in Negligence Under American jurisprudence, persons who are negligent and injure another are responsible for damages (Bernstein, 2002). Four general requirements are needed to establish liability for negligence in tort. First, there needs to be a duty owed by one person to another. Second, there must be a breach of the duty resulting in an injury. Third, a
0022-4375/$ - see front matter D 2004 National Safety Council and Elsevier Ltd. All rights reserved. doi:10.1016/j.jsr.2004.09.004
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relationship must exist between the breach and the injury. Finally, there must be damages. Injured persons have the burden of proving that someone else is at fault and should pay for the damages accompanying the injury. Negligence law thereby employs fault-based liability through lawsuits. Sometimes restitution is made voluntarily. The defendant admits fault and pays for the damages. For other situations, the person causing the injury will refuse to pay. The injured person will need to decide whether to accept the damages without compensation or to sue to recover damages. Those who seek compensation generally secure an attorney. The attorney then files a lawsuit asking for damages to cover the plaintiff’s injuries. A breach of duty is often the linchpin for determining who will be liable for injuries to another. In many states, different duties of care are owed depending on the relationships among persons. When property owners invite others to come onto their property for business purposes, they have a greater duty to keep their property safe as opposed to entrants such as trespassers. Most states assign different duties to persons within four categories of entrants: (1) invitees, (2) licensees, (3) recreational users, and (4) trespassers. Every state has further altered negligence rules with exceptions for Good Samaritans and other categories of persons who are engaged in good deeds (Centner, 2000). Thus, a confusing array of duties exists under negligence law. 2.1. Duties to invitees An invitee is a person who is induced or invited to come upon the premises of the owner for any lawful purpose (Official Code of Georgia Annotated, 2002). Customers patronizing a business establishment are invitees. Invitees are owed the greatest amount of care. Property owners are liable to invitees for failure to exercise reasonable care in keeping their property safe (Connecticut Supreme Court, 1992). A similar duty is owned to entrants by persons renting property, managing property, or in charge of property. They must keep the property under their control safe for others. The duty of reasonable care does not guarantee the safety of persons coming on property for business purposes. Rather, the duty involves the exercise of appropriate care under the circumstances to prevent injury. This ordinarily is a question for the jury. When considering a duty, a breasonable manQ standard is used: what would a person exercising ordinary perception, intelligence, and judgment have done given the circumstances (Pennsylvania Supreme Court, 2000). 2.2. Duties to licensees A licensee is a person who is neither a customer, servant, nor trespasser. A licensee does not stand in any contractual relationship with the owner of the premises and is expressly
or impliedly permitted to go on the premises. Friends are licensees. A property owner owes a licensee the duty to avoid wanton or willful injury. This duty of care is not as exacting as the duty owed to invitees (North Carolina Supreme Court, 1996). It involves refraining from creating a dangerous condition, and may include disclosing hidden defects that could cause an accident. Possessors of property who know (or have reason to know) of a condition involving an unreasonable risk of harm need to exercise reasonable care to make the condition safe (Florida District Court of Appeal, 2004). 2.3. Duties to recreational users Every state has passed special legislation known as recreational use statutes dealing with liability for recreational users. Persons who come onto another’s property for enumerated recreational activities are not licensees or invitees but rather are recreational users. Property owners do not guarantee that their premises are in safe condition for recreational activities (Virginia Code Annotated, 1997). The duty owed to recreational users is analogous to the duty a property owner owes to a trespasser (California Court of Appeal, 1987). In fact, one state uses the adult-trespasser standard to determine the duty owed under its recreational use statute (Minnesota Court of Appeals, 2002). Thereby, the statutes help reduce the number of situations where property owners and operators incur liability for accidents on their premises. 2.4. Duties to trespassers Although trespassers are breaking the law, an owner of property owes duties to these persons. If owners know trespassers are entering their property, willful or malicious failure to guard or warn against dangerous conditions may lead to liability. Property owners have a duty to protect persons from dangerous conditions. However, landowners generally do not have a duty to erect fencing or provide warnings of obvious dangers. States often have statutes covering trespass actions.
3. Principles for assigning liability Liability in tort apportions responsibilities according to principles of fairness and social norms (Nelson, 1999). However, over time, a society’s beliefs may change. American tort law shows some drastic changes over the past half century. In the 1950s, most states had a contributory negligence system that precluded plaintiffs who contributed to the accident from collecting damages. Due to the hardship on plaintiffs who were only slightly at fault, states changed to comparative negligence systems. The fault of plaintiffs and defendants are compared and recovery is permitted for the proportion of damages
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assignable to defendants. Other developments include legislation allowing class actions that expand liability and the reduction of immunity for governments. Several legal concepts are important in determining who is liable for an accident. First, an assumption of risk doctrine applying to all persons assigns responsibilities for their actions. Second, parents have duties to their children. Persons supervising children also have a special duty to keep them safe, and an attractive nuisance doctrine may apply to children to protect them from hidden, attractive dangers. 3.1. Assumption of risk Lawsuits for damages from accidents involve placing liability on those responsible for a breach of a duty of care. Risks and corresponding duties are assigned by common law, legislative enactments, and judicial pronouncements. When two or more persons are at fault, state law apportions damages under a system of comparative negligence. Multiple defendants, or both plaintiffs and defendants, may incur liability for some of the damages of an accident. Under common law, persons who take part in dangerous activities assume the accompanying risks. The doctrine of assumption of risk operates to preclude injured persons from placing liability on others where the injured persons should be responsible for their actions. Generally, participants who freely choose to engage in an activity and are injured due to no fault of another are governed by this doctrine. No other person has breached a duty so that participants are entirely responsible for their injuries. Participants who voluntarily choose to take part in a sport or recreational activity are governed by the implied assumption of risk doctrine (Roseman-Orr, 1999). The providers perform their duty in making the premises safe so that the risks of the activity are obvious to the participants (New York Court of Appeals, 1997). Risk normally a part of an activity is assumed by the participant. Participants are responsible for related injuries of risks that are so directly associated with the activity. In some states, the acceptance of risks is known as primary assumption of risk (California Supreme Court, 1992; New York Court of Appeals, 1997). Under this doctrine, a provider offering an activity has no duty with respect to obvious and inherent risks (New York Court of Appeals, 2003). In the absence of a duty, there is no obligation to eliminate risks or to protect persons against injuries. Rather, risks that are part of the activity are assumed by the participants. Primary assumption of risk serves as a defense for recreational and sport providers, businesses, and property owners. 3.2. Parental oversight Parents have a duty to help their children grow and mature into responsible adults. This means that parents make decisions on the activities that children can handle and determine when a child is ready to engage in an activity
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without adult oversight. In most cases, this is a progression consisting of small steps. Parents allow their children to assume more responsibility after they have successfully handled a simpler situation. Although parents have duties, our legal system also assigns responsibilities to others. This may result in a conflict between the responsibilities of a parent as opposed to others. A recent case from New York shows tort law negating parental responsibility. A child was injured when he trespassed on the defendants’ construction site and a steel ramp crushed his finger (New York County Supreme Court, 2003). The child and his parents claimed that the construction site was not safe and that the defendants (the property owner and construction company) were negligent in not doing more to make their equipment safe for trespassing children. The court agreed. Despite testimony from the child and his mother that the child was permitted to play in the area of the construction site unsupervised by adults, the court decided that the child was too young to accept risks. The primary assumption of risk doctrine was found to be inapplicable because the child could not fully appreciate the risks involved with trespassing on construction equipment. Thus, the property owner and construction company could be sued for negligence. By determining the issue to be assumption of risk by the child, the court avoided the question of parental duties. The defendants had testified that they sent all nearby residents letters advising them of the construction work. If parents feel it is safe for their child to play unsupervised in a neighborhood where construction is occurring, they impliedly feel that their child is of sufficient age and maturity to accept the risks that accompany such activity. As suggested by the dissenting judge, in denying primary assumption of risk, a strict liability regime governs construction sites involving trespassing children. It is not clear that landowners should be held to such a burdensome standard. 3.3. Duty to supervise Our jurisprudence places considerable emphasis on fostering safety by allowing suits for negligent supervision. Injured persons may sue property owners or businesses for negligence in failing to supervise. Where there are supervisory personnel, the argument involves insufficient care in the performance of their duties. If evidence exists to support either of these arguments, there may be liability. Under legal precedents, courts defer to juries in deciding whether the absence of reasonable supervision contributed to an accident. Difficult issues are presented by allegations involving the lack of supervision during recreational activities. For example, it is well established that the failure to have lifeguards at public swimming pools presents issues of negligence. Lifeguards are negligent if they fail to take appropriate action to keep swimmers safe (Texas Court of Appeals, 1996). If there are an insufficient number of lifeguards, this may also give rise to liability. Property
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owners and supervising personnel must deter accidents rather than expecting the public to avoid situations that may lead to injuries. A tort system attempts to reconcile competing choices involving the deterrence of dangerous situations, the responsibilities of staff overseeing recreational activities, and the responsibilities of participants. Rational people might resolve the disputes differently. In fact, the same accident might be decided differently in California as opposed to Georgia. But the larger question is whether legislatures might want to alter liability for supervision by placing greater responsibility on individuals. 3.4. Attractive nuisances Many states have adopted an attractive nuisance doctrine whereby a special duty is prescribed to protect trespassing children who are unable to perceive possible dangers. It applies when a child is attracted by a dangerous structure or condition on the property. The structure or condition must be unusually attractive to children, the danger must not be apparent to immature minds, and the owner should know of the structure or condition. The doctrine is restricted to trespassing children who are physically injured due to an artificial condition of the land. Thus, injuries to children from natural and common objects (such as rocks, ponds, ladders, and trees) are not governed by the attractive nuisance doctrine (Washington Court of Appeals, 2000). Qualification under the attractive nuisance doctrine generally involves five requirements. First, the possessor of land must know (or have reason to know) that children are likely to trespass (Minnesota Supreme Court, 1999). Second, the artificial condition needs to be one that the possessor should recognize could cause an unreasonable risk of serious bodily harm to children. Next, injured children must not have discovered the condition or recognized its risk due to their age. Fourth, the utility of the condition and the burden of eliminating the danger are compared with the risks presented to children. Finally, the possessor must have failed to exercise reasonable care in eliminating the danger or otherwise protecting trespassing children. Allayed against the attractive nuisance doctrine are concerns about placing too many duties on landowners and the preservation of property rights. The doctrine considers the foreseeability of harm and measures risk against duties in delineating responsibilities (Eckner, 2002). Landowner-defendants may be able to defeat an allegation in negligence if they can show that the minor (as the plaintiff) does not meet all of the elements required to show an attractive nuisance. In a case where a 12-year-old boy jumped off a roof into a pile of mats, he testified that he was initially too scared to make the jump (Washington Court of Appeals, 2003). The court interpreted this testimony as showing the boy comprehended the danger involved. Thus, there was no attractive nuisance so the accident was governed by ordinary negligence.
4. Legislative expansion of exceptions to liability The need for exceptions to tort liability has been recognized for hundreds of years. One of the obvious exceptions arose from the principle that people should not be able to sue the king. Under common law, a doctrine of sovereign immunity developed whereby governments did not incur liability for torts (Sentell, 1998). Tort immunity for states, agencies, public officials, local governments, school districts, and other governmental entities has developed into a bewildering set of rules created by legislative action and judicial precedents. In some cases, legislatures have decided that sovereign immunity should not apply so have enacted laws making governments liable for injuries from selected activities (New Jersey Statutes Annotated, 2004). Other historic immunity principles are part of common law and have been expanded by state statutes. Good Samaritan laws allow persons to assist others without incurring liability for mistakes that may injure the victim being helped (Veilleux, 1989). Gleaning laws protect donors of food and other items from liability (Centner, 1997). 4.1. Inherent risk statutes During the past 20 years, citizens and interest groups have petitioned state legislatures for new legislation regarding equestrian and sport activities (Hansen-Stamp, 1998). They want immunity from accidents involving inherent risks. Some laws responded to an insurance crisis whereby some businesses were not able to secure liability insurance at reasonable prices (Bagley, 1993). Other laws were couched as providing economic assistance to a deserving state industry through the reduction of costly tort lawsuits (Tennessee Code Annotated, 1993). By limiting legislative changes to small sectors of the economy, interest groups were able to secure changes in tort rules that restrict the number of successful lawsuits. Legislative bodies have employed three distinguishable strategies to assist qualifying persons in avoiding liability for injuries and property damages. The first strategy is to provide that qualifying individuals are not liable for damages except in certain situations. A second strategy alters the duty owed to selected persons to curtail situations that qualify an aggrieved plaintiff to relief. A third strategy prevalent in sport responsibility statutes is to have participants assume risks related to a sport. Participants assume responsibility for injuries that are a part of the inherent danger of the sport. All of the immunity strategies operate to reduce actions for damages from accidents. Under some statutes, injured persons are stopped from maintaining their lawsuit due to a defense. In other cases, injured plaintiffs may have greater difficulty in establishing a case for damages. Immunity legislation has reduced both the number of lawsuits being filed and the number of successful recoveries.
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4.2. Injuries to children in sport activities Courts and legislatures continue to struggle with the assignment of liability for accidents of minors engaged in sport activities. If a child is injured while participating in a sport, who should pay for the damages—the parents or the sport’s provider? Parents are responsible for the well-being of their offspring. They decide whether their children are ready to engage in a given sport activity. If a child is not ready to assume the risks, parents need to prohibit participation. Parents decide what activities are too dangerous for their children. Simultaneously, sport providers are responsible for providing safe activities. But who is responsible if a child is injured due to the child’s failure to appreciate the dangers of the sport? Our legal jurisprudence shows a reluctance to assign responsibilities to parents when other options are available. In choices involving the assignment of responsibilities between parents and sport providers, courts generally assume that the providers should have taken further action to safeguard children from accidents. A recent ski accident from New York shows a reluctance to have people assume responsibility for their lives (New York Supreme Court, Appellate Division, 2003). A 7-yearold child, who had been skiing for two seasons, was hurt while using a chairlift. She had an accident and was injured. Rather than accept responsibility, she and her mother sued the ski operator. They argued that the operator had not given sufficient instructions on how to use the chairlift. The operator moved to dismiss the case under a state law providing that ski operators are relieved from liability for risks inherent in the use of a chairlift. The appellate court felt the law should not apply. The judges questioned whether a 7-year-old novice skier could bfully appreciate the risks associated with the use of the chairlift.Q Because she might not appreciate the risks, it was found that she could not assume liability for the risks. No responsibilities were assigned to the parents. While it is convenient to place responsibilities for such accidents on property owners and providers of sport activities, there are alternatives. Parents might bear greater responsibility. After all, parents have a responsibility to keep their children safe, which involves prohibiting minors under their control from participating in activities that are too risky or dangerous. The parents of the 7-year-old skier obviously felt their daughter could handle the risks of skiing. Simultaneously, the provider of the activity impliedly acquiesced to the parental decision that the child could manage the risks of skiing. Why in hindsight did the court decide that the parental decision was irrelevant? The assignment of liability affects who must buy insurance to cover accidents and prices charged to participants. Under legal principles, holding providers of risky activities responsible means they must buy more insurance and increase participation fees to cover the costs of damages from accidents involving careless participants. Conversely,
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parents are not expected to insure their children who participate in these sports. As a result, the assignment of liability to providers increases the costs of risky recreational and sport activities. The consequence of this policy is that fewer people can afford to participate. Venturous activities become too expensive for persons with low or even average incomes.
5. Conclusion Our society recognizes special rules requiring persons to employ special care to keep children safe. Parents, property owners, supervisors, and others are responsible for taking appropriate actions and precautions so that minors do not incur injuries. While established legal principles exist to be used in assigning liability for accidents, legislatures and courts are being asked to consider changes. In an attempt to reduce lawsuits, new legislation has been enacted that places the liability for inherent risks on activity participants. Interpretations of parental responsibilities can also modify who is liable for accident damages. Individuals suffering wrongful losses need to receive compensation. However, some accidents occur due to the carelessness of the participant-plaintiff. Damages for these accidents might be the responsibility of the plaintiff, or in the case of children, of the parents. When legislatures enact immunity statutes, they adjust the dividing line between liability and no liability. Some worthy justification serves as a basis for the termination of the ability of selected injured persons to place liability on others. Immunity statutes provide choices whereby persons may be held responsible for their injuries. Adopting the premise that additional personal responsibility to reduce litigation is desirable, four provisions from various immunity statutes might be considered. 1.
2.
Liability for inherent risks. A statute can provide that participants assume responsibilities for the inherent risks of activities. While this principle already exists in some states under common law assumption of risk (New York Supreme Court, Appellate Division, 2000), other states might need to be more proactive with new statutory dispensation incorporating this principle for accidents. Although a broad range of inherent risk statutes legislate this principle for enumerated sport activities, the coordination of a state’s immunity statutes could simplify negligence law for practitioners and the general public (Centner, 2000). Giving effect to release provisions. Many states decline to shield defendants from liability where parents of the injured minors have signed releases (King, 1992). Courts find that releases by minors are against public policy (Washington Supreme Court, 1992). To counter such presumptions, legislatures might amend liability provisions to acknowledge the ability of individuals, including
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3.
4.
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parents of minors, to enter into reasonable contracts under which activity providers are released from liability for accidents involving participant negligence. For example, an Ohio court found that bparents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sport activities where the cause of action sounds in negligenceQ (Ohio Supreme Court, 1998). New presumptions regarding care. Legislatures can enact statutory provisions that enumerate presumptions regarding the duty of care owed to participants. For example, Hawaii provides for equine activities that bthere shall be a presumption that the injury, loss, damage, or death was not caused by the negligence of an equine activity sponsor, equine professional, or their employees or agents, if the injury, loss, damage, or death was caused solely by the inherent risk and unpredictable nature of the equineQ (Hawaii Revised Statutes Annotated, 1995). While presumptions do not eliminate lawsuits, they make it more difficult for injured plaintiffs to convince the trier of the fact that they deserve compensation. Removing statutory duties. State statutes that intend to provide immunity may inadvertently impose duties on providers of activities. For example, in a case considering an accident to a plaintiff during a whitewater rafting expedition, a state supreme court found that the statute providing immunity to commercial whitewater outfitters also established a statutory standard of care (West Virginia Supreme Court, 1991). Any release that attempted to exempt an outfitter from liability for breach of this duty was unenforceable. This judicial finding suggests that legislatures might decrease the liability of activity providers by refraining from enacting laws that establish duties. In addition, legislatures might rescind laws that establish duties.
The intent of these ideas is to slightly shift responsibilities for safety to persons most familiar with a child’s abilities and persons best able to direct the child in avoiding unsafe situations. The suggestions do not obviate the duties for owners of sport and recreational facilities to provide a safe place for children to enjoy activities. However, a state’s liability law does not need to insure children for mishaps that are the responsibility of the child and the child’s parents. By altering existing negligence law, some needless litigation may be eliminated. References Bagley, K. (1993). Safety programs: The financial impact on insurance. North American Horsemen’s Association 1993 Yearbook of News. Paynesville, MN7 Ark International Group. Bernstein, A. (2002). The communities that make standards of care possible. Chicago-Kent Law Review, 77, 5 – 69.
California Court of Appeal. (1987). Charpentier v. Von Geldern. California Reporter, 236, 233 – 242. California Supreme Court. (1992). Knight v. Jewett. Pacific Reporter Second, 834, 696 – 724. Centner, T. J. (1997). The new dPick-Your-OwnT statutes: Delineating limited immunity from tort liability. University of Michigan Journal of Law Reform, 30, 743 – 779. Centner, T. J. (2000). Tort liability for sport and recreational activities: The expansion of statutory immunity for protected classes and activities. Journal of Legislation, 26, 1 – 44. Connecticut Supreme Court. (1992). Morin v. Bell Court Condominium Association. Atlantic Reporter Second, 612, 1197 – 1203. Eckner, S. F. (2002). Safeguard trespassing children and preserve property rights: The Ohio Supreme Court decision in dBennett v. StanleyT to implement the Second Restatement of Torts’ version of the attractive nuisance doctrine. University of Cincinnati Law Review, 71, 255 – 278. Florida District Court of Appeal. (2004). Longmore v. Saga Bay Property Owners Association, Inc. Southern Reporter Second, 868, 1268 – 1270. Hansen-Stamp, C. (1998). Recreational injuries and inherent risks: Wyoming’s Recreational Safety Act—An update. Land and Water Law Review, 33, 249 – 280. Hawaii Revised Statutes Annotated. (1995). Section 663B-2. King Jr., J. H. (1992). Exculpatory agreements for volunteers in youth activities—the alternative to dNerfRT tiddlywinks. Ohio State Law Journal, 53, 683 – 759. Minnesota Court of Appeals. (2002). Bredvick v. City of Morris. Minnesota Appellate LEXIS, 161, 1 – 18. Minnesota Supreme Court. (1999). Croaker v. Mackenhausen. North Western Reporter Second, 592, 857 – 863. Nelson, W. E. (1999). From fairness to efficiency: The transformation of tort law in New York, 1920–1980. Buffalo Law Review, 47, 117 – 226. New Jersey Statutes Annotated. (2004). Section 59:4-2. New York County Supreme Court. (2003). Clark v. Interlaken Owners, Inc. West’s New York Supplement Second, 770, 58 – 62. New York Court of Appeals. (1997). Morgan v. State of New York. North Eastern Reporter Second, 685, 202 – 210. New York Court of Appeals. (2003). Marcano v. City of New York. North Eastern Reporter Second, 784, 73. New York Supreme Court, Appellate Division. (2000). Sajkowski v. Young Men’s Christian Association. West’s New York Supplement Second, 702, 66 – 68. New York Supreme Court, Appellate Division. (2003). De Lacy v. Catamount development corporation. West’s New York Supplement Second, 755, 484 – 486. North Carolina Supreme Court. (1996). Newton v. New Hanover county board of education. South Eastern Reporter Second, 467, 58 – 67. Ohio Supreme Court. (1998). Zivich v. Mentor soccer club. North Eastern Reporter Second, 696, 201 – 208. Official Code of Georgia Annotated. (2002). Section 51-3-1. Pennsylvania Supreme Court. (2000). Young v. Commonwealth. Atlantic Reporter, 744, 1276 – 1280. Roseman-Orr, A. I. (1999). Recreational activity liability in Hawaii: Are waivers worth the paper on which they are written. Hawaii Law Review, 21, 715 – 745. Sentell Jr., R. P. (1998). Tort claims against the state: Georgia’s compensation system. Georgia Law Review, 32, 1103 – 1194. Tennessee Code Annotated. (1993). Section 44-20-101. Texas Court of Appeals. (1996). University Preparatory School v. Huitt. South Western Reporter Second, 941, 177 – 182. Veilleux, D. R. (1989). Construction and application of bGood SamaritanQ statutes. American Law Reports, 68, 294 – 313. Virginia Code Annotated. (1997). Section 29.1-509. Washington Court of Appeals. (2000). Weisenburg v. Townsend. Washington Appellate LEXIS, 1619, 1 – 17. Washington Court of Appeals. (2003). Fritts v. Clover park school district. Washington Appellate LEXIS, 2895, 1 – 9.
T.J. Centner / Journal of Safety Research 36 (2005) 1–7 Washington Supreme Court. (1992). Scott v. Pacific west mountain resort. Pacific Reporter Second, 834, 6 – 16. West Virginia Supreme Court. (1991). Murphy v. North American River Runners, Inc. South Eastern Reporter Second, 412, 504 – 513.
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Terence J. Centner is a Professor with The University of Georgia College of Agricultural and Environmental Sciences, Athens, Georgia, USA. He received a B.S. in Agriculture from Cornell University, J.D. from the State University of New York at Buffalo, and an LL.M. from the University of Arkansas. Centner was an Alexander von Humboldt Stiftung research fellow at the University of Gfttingen and lectured as a Fulbright Senior Scholar at the University of Mannheim. His research program involves the policy analysis of legislation and the development of new regulatory institutions to respond to market imperfections.