LE G A L IS S U E S I N SC H O O L HE A L T H

Liability Risks for After-Hours Useof Public School Property to ReduceObesity: A 50-State Survey

TOM BAKER, JDa

HANIA MASUDb

ABSTRACT

BACKGROUND: One way to address childhood obesity is to create outlets for childrento engage in physical activity. Schools are well equipped to provide an activeenvironment. However, some school boards and administrators are concerned aboutliability risks. This study describes the legal rules applicable to potential claims againstpublic schools during recreational use of school grounds and facilities.

METHODS: Using traditional legal methods including the use of legal databases andtreatises, the legal rules from 50 states were surveyed to determine what type of liabilityschools face when opening their grounds for after-school recreational use.

RESULTS: Schools would, at most, be held to a reasonable standard of care, underwhich a person would be found liable if he did not act prudently in a given set ofcircumstances. This standard is no more onerous than that applied to most activities inthe United States. Schools in many states, including California, also receive the benefitof governmental immunity. Furthermore, 21 states have recreational use statutes, whichresult in more lenient liability rules for injuries during recreational use of school facilities.

CONCLUSIONS: Public schools in most states can be subject to liability in certaincases arising out of recreational use of their facilities. However, schools have importantdefenses. In combination with empirical research about liability in other contexts, thissurvey suggests that liability risks are unlikely to justify the denial of recreational accessto children who are at risk of obesity.

Keywords: tort law; obesity; school property.

Citation: Baker T, Masud H. Liability risks for after-hours use of public school propertyto reduce obesity: a 50-state survey. J Sch Health. 2010; 80: 508-513.

Received on October 30, 2009Accepted on April 30, 2010

aWilliamMaul Measey Professor of Law and Health Sciences, (tombaker@law.upenn.edu), University of Pennsylvania LawSchool, Philadelphia, PA 19104.bLawStudent, (hania@law.upenn.edu), University of Pennsylvania Law School, Philadelphia, PA 19104.

Address correspondence to: TomBaker, WilliamMaul Measey Professor of Law and Health Sciences, (tombaker@law.upenn.edu), University of Pennsylvania Law School, 3400Chestnut St., Philadelphia, PA 19104.

Research support was provided by the Robert Wood Johnson Foundation through the National Policy & Legal Analysis Network to Prevent Childhood Obesity, a project of PublicHealth Law & Policy (www.phlpnet.org).

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Physical activity addresses one-half of the ‘‘EnergyIn = Energy Burned’’ formula featured in the

Robert Woods Johnson Foundation’s President’smessage on obesity.1 For this reason, the public healthresponse to childhood obesity must include research onhow to increase children’s physical activity. One part ofthat research will focus on motivating engagement infun, physically active, and safe activities that childrencan build into their lives. Another part will focus onfinding and creating good places for children to engagein those activities.

Although there is surely more to learn about goodplaces for children to be active, there are 2 thingsthat shaped this legal research project. First, manyneighborhood schools are good places for childrento be active. Second, some school boards and schooladministrators are worried about opening up theirfacilities for after-hours recreational activities becauseof concerns about liability in the event of injuries.2

Those concerns are addressed by this systematic reviewof the legal rules that apply to claims that may bebrought against public schools permitting recreationaluse of public school grounds and facilities as part of aprogram designed to promote physical activity amongchildren at risk for obesity.

This article will begin with an overview of thebasic elements of tort liability. The next sectiondescribes the special legal rules that may limit publicschools’ legal obligations in the context of publichealth-based recreational use of school facilities. Thearticle concludes with a review of the statutory limitson the damages that may be awarded against schooldistricts in some states, and a discussion of liabilitywaivers (which would require the children and theirfamilies to retain the risk of their own injuries) as apotential risk management tool.

OVERVIEW OF TORT LIABILITY

Tort liability is covered under a body of civil lawwhich is distinct from criminal law. A slip and fall caseis a typical tort law claim. Tort law is comprised of 4elements: duty, breach, causation, and damage.3 Toprevail in a tort action a plaintiff must prove (1) thedefendant had a legal duty, (2) the duty was breached,(3) the breach by the defendant caused the injuryto the plaintiff, and (4) the plaintiff suffered damageas a result. While these elements may be formulateddifferently in some states, the fundamental concept isthe same in all US states.

The Duty element refers to the requirement that theperson or entity against whom the claim is broughtmust be among those who have a legal duty to takeprecautions to avoid such injuries. The duty elementis the most technical and context-specific aspect ofliability law, the aspect that differs the most from stateto state, and the main focus of this 50-state survey.

The Breach element refers to the requirement thatthe claimant must prove that the defendant’s conductfailed to meet the standard of conduct applicable ina given situation. Causation refers to the requirementthat the claimant prove the deficient conduct causedthe injury in question. Finally, the damage elementrefers to the requirement that the claimant mustprove a compensable injury, which often involvescomplex case-specific questions regarding the extentof an injury and the costs of compensating someone forthat injury. These elements are fact-intensive inquiriesthat lie outside the scope of our survey. This surveyaddresses damages to the extent in which states limitdamages by certain statutory caps.

MethodsUsing legal databases maintained by Westlaw and

Lexis, supplemented by references to legal treatisesin those states for which treatises exist, a systematicreview was undertaken of the legal rules among the 50states and the District of Columbia that apply to claimsthat may be brought against public schools permittingrecreational use of public school grounds and facilitiesas part of a program designed to promote physicalactivity among children at risk for obesity. The reviewfocused on states’ rules regarding sovereign and gov-ernmental immunities, recreational use of public prop-erty, the duties owed to entrants on land, and the exis-tence of any limits on damages that may be assessedagainst schools in personal injury cases. A table sum-marizing the laws of each of the states and the Districtof Columbia (‘‘Summary of Legal Rules GoverningLiability for Recreational Use of School Facilities’’)is available from National Policy and Legal AnalysisNetwork to Prevent Childhood Obesity at the follow-ing URL http://www.nplanonline.org/nplan/products/community-use-charts.

PUBLIC SCHOOLS, THE DUTY ELEMENT, AND RECREATIONALUSE

Public schools are governmental entities that,historically, benefited from legal immunity, meaningthey often had little or no legal duty to take anyprecautions to prevent injuries. This is no longerthe case as most states have lifted this traditionalimmunity, at least in part. As a result, public schoolsgenerally have at least some legal duty to takereasonable precautions to prevent injuries, althoughthe extent of that duty differs significantly from stateto state. As noted, our research identified no state inwhich a public school would be held to a legal dutythat is more demanding than the ordinary, reasonablecare standard.

There are 3 types of legal rules which mayexempt public schools, in whole or in part, from

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the reasonable standard of care legal duty. Theserules can be categorized into (1) governmental orsovereign immunity; (2) state recreational use statutes;and (3) the traditional common law treatment of‘‘licensees’’ who use land owned or occupied by others.In addition, rules relating to mandatory defense andindemnification of school employees may also impactthe degree of liability a school would face.

Sovereign and Governmental ImmunityBoth sovereign and governmental immunity may

bar individuals from filing a claim against a publicentity.3 These immunities may limit a public schools’exposure to liability. Under the common law under-standing of sovereign immunity, school districts areconsidered a subdivision of the state government andtherefore benefit from the broad immunity grantedto the state. In states where schools are grantedbroad immunities, they may not be subject to law-suits or other legal action. However, in states in whichschool districts are subdivisions of local governments,the immunities granted are a more limited form ofgovernmental immunity granted to municipal corpo-rations and other local bodies. All states have waivedsovereign and governmental immunity to some extent,with the result that state agencies may be sued in somecircumstances. But even where immunity has largelybeen abrogated, pockets of immunity remain throughvarious exceptions.

This study identified four general approaches toimmunity under which states could be classified. Inorder of the strongest protection afforded to schools theclassifications are as follows: (1) sovereign immunityfor school districts with very limited exceptions;(2) governmental immunity with limited exceptions;(3) governmental immunity with more substantialexceptions; and (4) general exposure to liability subjectto specific exceptions.

Sovereign Immunity. Sovereign immunity offers avery strong immunity that has no judicially createdexceptions.3 The benefit of this strong protection isthat schools in sovereign immunity states are highlyunlikely to be liable for any injuries that take placeduring a recreational program. The 1 exception to thisbroad protection is if the school has purchased liabilityinsurance that provides coverage for the claim.3

This immunity does not traditionally extend to stateemployees, with the result that if schools are statutorilyrequired to defend and indemnify employees (or ifthey routinely defend and indemnify employees), thepractical effect of sovereign immunity is reduced.Defense and indemnification of school employees isdiscussed further below.

Six states benefit from sovereign immunity (seeState table included in Web appendix). In these states,sovereign immunity would operate to protect schools

in most cases except to the extent they purchaseliability insurance (which generally waives the grantof immunity—Alabama is the exception).

All other states either retain governmental immu-nity or waive the common law immunities andadopt specific exceptions through a statutory scheme.Twenty-one states retain governmental immunity andlimit it through certain exceptions.

Governmental Immunity. Governmental immunityis a common law doctrine that protects municipalitiesand other governmental entities not considered part ofthe state-level government in the United States.3 Gov-ernmental immunity is more limited than sovereignimmunity because there are often a number of appli-cable exceptions. Governmental immunity operatesthrough a rule/exception framework. Under commonlaw, immunity was the rule subject to a number ofexceptions. Two of the most common exceptions togovernmental immunity are for proprietary and min-isterial activities.

Proprietary activities are activities not traditionallyundertaken by government agencies, such as main-taining a hospital, a stadium, or a utility company.Courts look at a number of factors to determinewhether an activity is proprietary including whethera fee is paid; whether the activity produces a profit;whether the activity is customarily engaged in by pri-vate entities for profit; and whether a governmentalimmunity statute specifically lists the activity as either‘‘governmental’’ or ‘‘proprietary.’’ A private organi-zation running a recreational program using publicgrounds for a profit-making purpose would likely beclassified as a proprietary activity. However, a free,school-based recreational program designed to reduceobesity would likely be distinguishable from a profit-making program. Children would not be charged a feeto participate, the school district would not produce aprofit, and the purpose of the program would be topromote public health. This program would be morelike a school physical education program—commonlyregarded as governmental—rather than a proprietaryactivity.4

Another common exception is for ministerial activ-ities. In deciding which activities are ministerial and,therefore, not subject to governmental immunity,courts will draw a distinction between ‘‘operational’’and ‘‘planning’’ activities.5 Planning activities wouldinclude decisions such as when to open schoolpremises and what type of equipment should beinstalled, while operational activities would includesupervision and maintenance of a school playground.A number of these states will only grant immunityfor ‘‘planning’’ or discretionary decisions, with somestates broadly interpreting discretionary while othersnarrowly construe discretionary functions to policy-level decision making. In these states, the decision bya school board to implement and run an after-school

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obesity-focused recreational program would be pro-tected, but the day-to-day operations would likely besubject to liability unless the state has adopted otherexceptions such as California’s retention of immu-nity for hazardous recreational activity.6 However,some states broadly interpret discretionary functionsto include day-to-day operational decisions such as theway a teacher conducts a physical education class.7

Many states have enacted a number of addi-tional exceptions to governmental immunity, includ-ing the public building exception, the negligent publicemployee exception, and the insured liability excep-tion. The public building exception waives govern-mental immunity for liability arising out of defectiveor dangerous conditions in public buildings. Maine,Michigan, Tennessee, Pennsylvania, and Utah all havesome type of exception to the grant of immunity fordefective or dangerous conditions on public buildingsand grounds.8-12 However, the increased exposure toliability resulting from these exceptions to govern-mental immunity may be tempered by exceptions tothese exceptions, which have the effect of reinstatingthe immunity. The most important of these exceptionsthat reinstate immunity is for conditions resulting fromdiscretionary decisions such as design choices.13-15

In addition to the above-mentioned exceptions,a number of states have extended governmentalimmunity by creating additional categories of protectedactivities. For example, Illinois and South Carolina lawlimits liability for injury due to recreational use ofpublic property. In Illinois, plaintiffs can recover onlyif they can demonstrate that willful or wanton conductby a public entity or employee caused the injury.16 InSouth Carolina, plaintiffs must prove grossly negligentconduct by a public entity or employee caused theinjury.17 This liability limit is likely to have thesame practical impact as a more general recreationaluse statute would have. In addition, Nevada lawimmunizes schools from any cause of action basedon a failure to inspect any building, structure, or otherpublic work for hazards as well as from any failureto discover a hazard or deficiency on or around theschool property.18

The traditional rule/exception framework has beenreversed, in many states, by state tort claims actsand similar legislation. As a result, governmentalimmunity becomes the exception rather than therule, and the legislation identifies certain activitiesthat are subject to governmental immunity. The mostimportant exception is for discretionary activities asdiscussed earlier. While the analysis of whether anactivity qualifies for the discretionary exception tothe no-immunity rule appears to be the same as theformal analysis of whether an activity is discretionary,and thus not subject to the ministerial exception tothe immunity rule, it seems courts in states thathave explicitly reversed the rule/exception framework

are more likely to adopt a narrow definition ofdiscretionary activities.

Defense and Indemnification of School Employees.Governmental and sovereign immunity are legalrules that limit the extent to which governmentalorganizations may be held vicariously liable for thenegligence of school employees, because employeesultimately carry out all state functions. In many of thesovereign immunity states, the immunity granted doesnot apply to school employees. Instead, employeesare protected under a separate immunity—sometimescalled public official immunity. This immunity isoften narrower than the immunity granted to schooldistricts, and a school employee might be liable for aninjury caused by careless conduct without the schoolalso being vicariously liable. However, schools maystill face liability indirectly if, by state statute, they arerequired or permitted to defend and indemnify theiremployees for work-related lawsuits. There are alsoa number of states that require schools to purchaseliability insurance for their employees. In states thatrequire or permit the purchase of liability insurancefor school employees, the practical liability of theschool district may be nearly identical to the liabilityan employee would face—effectively lessening theprotection afforded by sovereign or governmentalimmunity.

There are certain identifiable patterns in the rela-tionship between state immunity and the immunitygranted to employees. In California, Idaho, NorthDakota, Texas, Pennsylvania, and Florida, employeesare afforded broader immunity than school districts.Alaska, Colorado, District of Columbia, Kentucky,Maine, Michigan, Nevada, New Jersey, South Car-olina, South Dakota, Tennessee, Utah, and Wisconsingrant substantially identical immunity for employeesand school districts. In Alabama, Connecticut, Ken-tucky, North Carolina, and Rhode Island, employeesare afforded a narrower immunity than school dis-tricts, which may expand the liability exposure ofschools in those states. Defending and indemnifyingan employee in a case where the school itself would beimmune could significantly increase the liability riskbecause the school would not otherwise be financiallyresponsible for the liable action. In making sense ofall of these immunities and exceptions, it is impor-tant to keep in mind that the worst case for a schooldistrict is that the school district is simply subject tothe ordinary duty to take reasonable care to preventinjuries. This is the same duty of care that affects almostall businesses in the United States and that does notprevent these businesses from engaging in dynamic,risk creating activities. While it may be important forschools to take liability in to consideration when decid-ing whether or not to open their playgrounds up forafter-school use, risk of liability should not serve as aninsurmountable obstacle.

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Recreational Use StatutesA number of states that waive sovereign and

governmental immunity still offer schools strongprotections against liability through recreational usestatutes. In these states, the legal duty that would applyto recreational activities on public school grounds ismore lenient. A school in 1 of these states would beheld liable only for recreational injuries attributable towillful or wanton behavior on the part of the schoolor its employees, which would be a higher standardof care than the ordinary reasonable care standardoutlined above. In these jurisdictions, a school wouldsatisfy its legal duty as long as its employees or agentsdid not choose to ignore a substantial risk of seriousinjury without any concern for the safety of others.3

Recreational use statutes vary significantly fromstate to state in 3 main areas: whether the statutecontains an exhaustive or illustrative list of activities;whether the statute applies to public and private lands;and whether the statute applies to undeveloped aswell as developed land. In a state like New Hampshirethat lists specific activities such as hunting, fishing,and other outdoor activities, schools would likely beunable to avail themselves to the protection of thestatute for an after-school obesity reducing recreationalprogram.19

School districts may try to defray liability risks byallowing third parties to organize obesity reducingrecreational programs on school grounds. This wouldbe beneficial in those states where a recreational usestatute applies only to private parties that provide freerecreational access to developed urban land but notto public entities. Hawaii, Massachusetts, and NorthCarolina have such recreational use statutes.20-22 Thesestatutes may lead states to allow private organizationsto structure obesity reducing programs on schoolproperty so they can obtain the benefits of therecreational use statutes.

Common Law Protection for Owners of LandFinally, schools in states that do not have strong

recreational use statutes, nevertheless, may be affordedsome liability protection based on common lawprotections extended to all owners of land. Theseprotections classify permitted entrants on land into2 categories: invitees and licensees.3 Landowners oweinvitees the duty to take reasonable precautions toprevent injury, which includes the obligation to takereasonable efforts to discover hidden dangers on theproperty (eg, a swing with a weak chain). Childrenusing school facilities as part of a special schoolprogram intended to increase their physical activitywould most likely be classified as invitees (unlessthere was an applicable recreational use statute). Ifthe school grounds are opened for general recreationaluse, the people using the grounds would be considered

licensees in many states, in which case the duty of carewould be somewhat less, with the main differencebeing a reduced obligation to discover hidden dangers.

LIMITS ON DAMAGES

There are 2 kinds of statutory limits on tort damagesthat may reduce school districts’ liability risk in manystates: (1) limits on damages that apply to claimsbrought against governmental entities under a statetort claims act and (2) limits on damages that applyto tort claims more generally. In addition, a fewstates have special statutory limits on damages thatapply to claims against public schools. In additionto the monetary limits on damages, a number ofstates bar both punitive and exemplary damagesagainst governmental entities. Research shows thatdamages limits do reduce the liability risk, as commonsense would suggest.23 These limits are controversialas a public policy matter, however, because theydisproportionately affect people with the most seriousinjuries.

WAIVERS

Schools may try to manage their risks by utilizingliability waivers. Liability waivers are contracts thatprovide a service or access to facilities only if a personreceiving the service agrees to waive any right tobring suit in the case of injury. Schools would facea serious impediment to using liability waivers foran after-school recreational program because childrendo not have the power to enter into enforceablecontracts. While parents may have the authority tobindingly act on behalf of their children, courts havebeen reluctant to allow parents to sign away theirchildren’s rights to sue for injury.24 Nevertheless,Alaska, Massachusetts, Ohio, and California wouldpermit parents to sign certain types of waivers onbehalf of their children.25-28 However, these waiversare unlikely to provide significant liability protectionbeyond the statutory grants of protections alreadyafforded to school districts for after-school recreationaluse as discussed earlier. This is because liability waiversare not effective against lawsuits based on breach ofmore lenient duties such as the duty not to engage inwillful and wanton injury.29 Therefore, the added costsand limited benefits of implementing liability waiverswould make their use impractical in most cases.

IMPLICATIONS FOR SCHOOL HEALTH

Public schools in most states are subject to liability insome situations that could arise out of the recreationaluse of school facilities. Nevertheless, public schools areprotected by some form of governmental immunityin all states, and they are protected in many states

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by recreational use statutes from lawsuits arising outof injuries from recreational activities. In addition,the laws of some states limit the amount of damagesthat may be assessed in tort lawsuits brought againstpublic schools. Even though states are protected toa degree through the above-mentioned legal rules,the view that liability risks are very large is stillprevalent. This is largely a result of an effectivelong-term public relations effort that proclaims thatthe United States has suffered through a litigationexplosion. A large and growing body of researchshows that fears over liability are, at the very least,exaggerated.30-32 Although there are real liabilityrisks, this survey of the law of all 50 states leadsto the conclusion that these risks are unlikely tobe substantial enough to justify denying recreationalaccess to children who are at risk of obesity. Someschools may have good reasons for closing theirplaygrounds after hours, but it is unlikely that liabilityrisk is among them.

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2. American Tort Reform Association. Fear of Tort LiabilityLimits Educational Opportunities for America’s Children.1999. Available at: http://www.atra.org/show/91. AccessedJanuary 4, 2010.

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6. CAL. GOV’T CODE § 831.7(a) (West 2009).7. Bauder v. Delavan-Darien Sch. Dist., 558 N.W.2d 881, 882

(Wis. Ct. App. 1996).8. ME. REV. STAT. ANN. tit. 14, § 8104-A(2) (2009).9. MICH. COMP. LAWS ANN. § 691.1406 (West 2008).

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24. Hawkins ex rel. Hawkins v. Perat, 37 P.3d 1062 (Ut. 2001).25. ALASKA STAT. § 09.65.292 (2010).26. Sharon v. City of Newton, 769 N.E.2d 738, 744 (Mass. 2002).27. Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 204 (Ohio

1998).28. Cohen v. Five Brooks Stable, 159 Cal. App. 4th 1476, 1484

(Cal. App. 1st Dist. 2008).29. City of Santa Barbara v. Superior Court, 161 P.3d 1095 (Cal.

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University of Chicago Press; 2004.31. Baker T. The Medical Malpractice Myth. Chicago, IL: University of

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