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Approaches to Liability for the City of Philadelphia in the Context of Skatepark Construction

Note: Footnotes are marked with ×n. Click to pop up window. Footnotes also appear at the bottom of this article.

April 4, 2002
Prepared for Franklin’s Paine Skatepark Fund
By Joshua H. Nims, J.D.

This report×1 briefly discusses the City of Philadelphia’s present and future liability for its involvement in the construction of public skateparks including the proposed facility in Center City. Topics include: Comparative risks to "traditional" playground sports, Pennsylvania’s Recreation Use of Land and Water Act, potential legislation related to further minimizing recreational liability for municipalities, and other state and federal positions on skateboarding and recreational liability.

Skateboarding’s Risks Compared to Traditional Sports

Liability concerns have been a stumbling block for skatepark construction for decades. Municipalities, when asked to build facilities for their skateboarding population, always fall back on the liability excuse. That justification is often grounded in a misinterpretation of the actual risks of skateboarding and the comparative risks of traditional playground sports like football or soccer.

Skateboarding has supplanted a number of traditional sports as the activity of choice for over 9 million young people.×2 Traditional playground sports such as soccer or football have comparable participation rates, yet have a much higher injury rate per thousand participants than skateboarding.×3 Based on these facts, it is not logical for different standards of liability to be applied to children playing pick-up games of football or soccer in a public park than to skateboarders.

It is important to establish early in the process of understanding skateboarding liability issues that the same amount of liberty that traditional sports participants are afforded in a public park should be allowed to skateboarders.

The Recreation Use of Land and Water Act×4

In order to assure that ample areas exist for public recreational use in a society that has become increasingly leisure and recreation-oriented, Pennsylvania enacted the Recreation Use of Land and Water Act (RUA) in 1966.×5 The RUA has been interpreted as applicable to government-owned recreational lands; but the definition of "land," broadly defined in the RUA×6, is the issue that remains unclear.

A number of law review articles have reviewed the specifics of this definitional question×7, with the most recent (1997) stating that two legislative amendment camps are divided between: (1) a broad definition of "recreational land" that would include urban recreation areas owned by local or state governments, or (2) a narrow definition of "recreational land" that would relegate immunity to rural areas owned by private landowners.×8 These proposed amendments×9 were in response to the decision of the Pennsylvania Supreme Court in Lory v. City of Philadelphia×10. That decision "expanded immunity from lawsuits brought by people injured on government owned recreational lands"×11 but did not directly address the definitional impasse over the term "land" that could stretch the Lory holding to make urban recreational lands owned by the government immune from liability under the RUA.×12

The City of Philadelphia has a clear interest in clarification of this legislative uncertainty to make it less risky to provide recreational spaces to the state’s largest concentrations of urban population. Illinois, another largely rural state with a metropolis (Chicago) to balance legislative decisions against, passed a similar law at nearly the same time for almost identical reasons. Yet they had the foresight to start with "playgrounds" as the focus of governmental immunity and expand out to other recreational lands.×13×14 , That level of specificity and foresight would have served Pennsylvania’s RUA well as a way to foster the construction of recreational areas in the urban areas that need them the most.

Now appears to be a key time to reintroduce some kind of amendment in Harrisburg while the X-Games are in Pennsylvania. The state was very much in support of the successful effort to bring the X-Games to Philadelphia.×15

Despite its uncertainties, the RUA probably provides the most complete defense, if successful, to potential liability where there is no admission fee charged for using the recreational land,×16 with the definition of "land" being the central issue in dispute.

Federal Posture and National Trends

There have been no federal cases on skateboarding-related liability as of this writing. However, in 1999, the U.S. Department of Justice released a study of a small town in Massachusetts that had a downtown plaza skateboarding problem similar to the situation in Center City. A skatepark was constructed as a response and the loitering and pedestrian safety problem was significantly reduced. To address liability concerns, the town posted signs at the skatepark imploring users to wear protective gear and warning users that they are using the facilities "at their own risk." The report admits that "safety gear requirements have been difficult to enforce and are frequently ignored,"×17 but the overall outcome for the community has been a success.

There is no perfect solution to any problem, but the Danvers, Mass. community is willing to take a small liability risk to alleviate a much larger one and the results have been very positive. Large reductions in complaints and police calls for skateboarding related incidents have been reported since the skatepark was constructed.×18

This type of risk balancing is the present reality of dealing with skateboarding that municipalities large and small are facing. Many are choosing to take a chance on building skateboarding facilities. Those communities are helping to create coherent policy on skateboard liability, which is the challenge that municipalities now face in making sure skateboarding facilities are fun and accessible for as many young people as possible.


Footnotes
1. While this report is intended to be a broad overview appropriate for a nonlegal audience, attention is given to appropriate citations where those sources may be useful to assist in further research by the Law Department.

2. National Sporting Goods Association (2000)- printed in the Philadelphia Inquirer, March 27, 2002. Participation in skateboarding has risen 102% since 1995 according to the NGSA.

3. National Safety Council (1999)- printed in the Philadelphia Inquirer, March 27, 2002. Football- 19.6 million participants with 18.8 injuries per 1,000 participants. Soccer- 13.2 million participants with 13.3 injuries per 1,000 participants. Skateboarding (1999 figures)- 7 million participants with 8.6 injuries per 1,000 participants.

4. 68 P.S. 477-1 (1999)("The purpose of this act is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.").

5. Goldstein, Debra Wolf. The Recreation Use of Land and Water Act: Lory v. City of Philadelphia, 35 Duquesne L. Rev. 783, 785 (1997)(referring to the public policy behind RUA," [c]ommunities have…turned to a variety…of means for making open space lands available to the public, including adopting state recreational use laws that limit tort liability of landowners who make their lands available to the public for recreational uses free of charge [emphasis added].").

6. 68 P.S. §477-2 (1999)("’LAND’ means land, roads, water, watercourses, private ways and buildings, structures and machinery or equipment when attached to the realty.").

7. Manning, William L., TORT LAW — MUNICIPALITIES' IMMUNITY UNDER THE RECREATION USE OF LAND AND WATER ACT: A DEATH KNELL — WALSH v. CITY OF PHILADELPHIA, 585 A.2D 445 (Pa.1991), Temple L. Rev. (Summer 1992). Renwand, Sandra M., Note: BEYOND COMMONWEALTH v. AURESTO: WHICH PROPERTY IS PROTECTED BY THE RECREATION USE OF LAND AND WATER ACT?, Pitt L. Rev. (Fall 1987). Goldstein, Debra Wolf, supra (1997).

8. Goldstein at 798-800 ("Bill 219 [the amendment to broaden the definition of ‘recreation land’] encourages governments to offer recreational facilities to the greatest number of people possible in both urban and rural settings. It promotes the economic benefits that result from recreation-based tourism.").

9. There have been no definitional amendments made to the RUA as of 2001.

10. Lory v. City of Philadelphia, 674 A.2d 673 (Pa.1996).

11. Goldstein at 783.

12. Goldstein at 797.

13. Colwell, W. Bradley, RECREATIONAL PROPERTY AND INJURIES: "PLAYING" WITH GOVERNMENTAL TORT IMMUNITY, Illinois Bar Journal 654 (December 1999)(The Illinois Act reads,"[n]either a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds [italics added], open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.").

14. Goldstein at 786, n.16 (a listing of similar recreational use statutes from 48 other states).

15. McCalla, John,"X Games Hope For A Smoother 02" Philadelphia Business Journal (Aug. 24, 2001)("The state of Pennsylvania provided the funding for the $1.2 million Philadelphia bid to host the X games in 2001 and 2002.").

16. 68 P.S. §477-6 (1999)("Nothing in this act limits…liability which otherwise exists…[f]or injury suffered in any case where the owner of land charges…for recreational use thereof.").

17. Rinehart, Tammy, Tackling Youth Disorder in Danvers, Mass., U.S. Department of Justice, Office of Community Oriented Policing Services (1999).

18. Rinehart at 4.

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