School districts and local governments can help prevent childhood obesity by increasing opportunities for children to be physically active in their communities. One way to provide recreation opportunities is to open school buildings and facilities to public use after school hours. School officials may be reluctant to do so, however, because of concerns about liability in the event of injuries.

To assist school and government attorneys in assessing liability risks, NPLAN commissioned a 50-state survey of the laws governing liability for after-hours recreational use of school facilities. Written by Professor Tom Baker, Professor of Law at the University of Pennsylvania Law School and one of the nation’s preeminent scholars of tort and insurance law, the survey results consist of two parts that are designed to be read together.

The good news for local governments:

• All 50 states have some governmental immunity;
• Some states have recreational users statutes;
• In no state are rules for recreation use more onerous that rules that apply during school day; and
• In many states the rules are more lenient.

The first part is an overview memo which sets the analytical framework for assessing a school’s liability risks. It covers:

• Basic elements of tort liability;
• Special legal rules that may limit public schools’ legal obligations;
• Statutory limits on the damages that may be awarded; and
• Potential tools for shifting liability risks (liability waivers and providing access through third parties).

The second part consists of individual state memos that summarize each state’s legal framework governing liability for after-hours recreational use of school property. A state memo should always be read after the overview memo. The state memos analyze:

• The elements of tort liability;
• Limits on a school’s legal obligations, including sovereign and governmental immunity, limited legal duties due to recreational use statutes, historical distinctions among entrants on land, or other grounds;
• Requirements to indemnify school employees;
• Defenses to liability, including comparative negligence and assumption of risk;
• Limitations on damages; and
• Risk management strategies, including waivers or access through third parties.

The memos are designed to inform lawyers advising school districts that are considering whether to open their facilities for recreational use. The memos should also be useful to attorneys advising local governments that are considering whether to enter into a joint use agreement with a school district.

The memos do not provide the kind of detailed analysis that would be necessary to support the defense of a liability action, and they are not a substitute for consultation with a tort defense lawyer with expertise in a locality’s laws.

Click on the state below to view its tailored liability memo.

 

You may also be interested in NPLAN's model joint use agreements and A Look at State Rules Affecting Joint Use Agreements.