Overcoming legal liability concerns for school-based physical activity promotion

American Journal of Public Health

Volumn 103, Issue 11, 2013, Pages 1962-1968

  Zimmerman, Sara ^a   Kramer, Karen ^a   Trowbridge, Matthew J ^b  

^a National Policy and Legal Analysis Network to Prevent Childhood Obesity   (United States)

^b UNIVERSITY OF VIRGINIA HEALTH SYSTEM   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; EXERCISE; HEALTH PROMOTION; HUMAN; INJURY; INSURANCE; LEGAL ASPECT; LEGAL LIABILITY; METHODOLOGY; PUBLIC-PRIVATE PARTNERSHIP; SCHOOL; LEGISLATION AND JURISPRUDENCE; PROCEDURES; WOUNDS AND INJURIES;

EXERCISE; HEALTH PROMOTION; HUMANS; INSURANCE, LIABILITY; LIABILITY, LEGAL; PUBLIC-PRIVATE SECTOR PARTNERSHIPS; SCHOOLS; WOUNDS AND INJURIES;

EID: 84886397761     PISSN: 00900036     EISSN: 15410048     Source Type: Journal    
DOI: 10.2105/AJPH.2013.301319     Document Type: Article

References (79)

1. Centers for Disease Control and Prevention, "Adolescent and School Health: Physical Activity Facts," last updated June 7, 2012, http://www.cdc.gov/healthyyouth/physicalactivity/facts. htm (accessed May 2, 2013).
2. "Over the past 20 years, obesity rates in US children and youth have skyrocketed. Among children ages 6 to 11, 15.8%are overweight (‡ 95th percentile body mass index [BMI] for age) and 31.2%are overweight or at risk for overweight (‡ 85th percentile BMI for age). Among adolescents ages 12 to 19, 16.1%are overweight (‡ 95th percentile BMI for age) and 30.9%are overweight or at risk for overweight (‡ 85th percentile BMI for age)."
3. R. R. Pate, M. G. Davis, T. N. Robinson, E. J. Stone, T. L. McKenzie, and J. C. Young, "A Leadership Role for Schools: A Scientific Statement From the American Heart Association Council on Nutrition, Physical Activity, and Metabolism (Physical Activity Committee) in Collaboration With the Councils on Cardiovascular Disease in the Young and Cardiovascular Nursing," Circulation 114 (August 2006): 1214-1224, http://circ. ahajournals.org/content/ 114/11/1214 (accessed May 2, 2013).
4. MedlinePlus, National Institutes of Health, "Exercise for Children," last updated May 1, 2013, http://www.nlm. nih.gov/medlineplus/ exerciseforchildren.html (accessed May 3, 2013);
5. American Psychological Association, "Changing Diet and Exercise for Kids," http://www.apa.org/topics/children/healthy-eating.aspx (accessed September 21, 2012);
6. C. Rothon, P. Edwards, K. Bhui, R. M. Viner, S. Taylor, and S. A. Stansfeld, "Physical Activity and Depressive Symptoms in Adolescents: A Prospective Study," BMC Medicine 8 (2010): 32, http://www.biomedcentral. com/1741-7015/8/32 (accessed May 3, 2013).
7. The Association Between School-Based Physical Activity, Including Physical Education, and Academic Performance (Atlanta, GA: Centers for Disease Control and Prevention, 2010), http://www.cdc.gov/healthyyouth/health-and- academics/pdf/pa-pe-paper.pdf (accessed May 3, 2013)
8. K.M. Pollack, C. Kercher, S. Frattaroli, C. Peek-Asa, D. Sleet, and F. P. Rivara, "Toward Environments and Policies That Promote Injury-Free Active Living-It Wouldn't Hurt," Health & Place 18, no. 1(2012): 106-114.
9. Institute of Medicine, Accelerating Progress in Obesity Prevention: Solving the Weight of the Nation (Washington, DC: The National Academies Press, 2012), 329-378.
10. See, for example, J. O. Spengler, M. S. Carroll, D. P. Connaughton, and K. R. Evenson, "Policies to Promote the Community Use of Schools: A Review of State Recreational User Statutes," American Journal of Preventative Medicine 39, no. 1 (2010): 81-88.
11. "Liability concerns are cited as one of the greatest barriers to establishing joint-use agreements." California Pan-Ethnic Health Network (CPEHN), Unlocking the Playground: Achieving Equity in Physical Activity Spaces (Oakland, CA: CPEHN, 2009), http://www.cpehn.org/pdfs/Joint%20Use%20Brief.pdf (accessed May 3, 2013).
12. W. L. Prosser and W. P. Keeton, eds., Prosser and Keeton on the Law of Torts, 5th ed. (St. Paul, MN: West Publishing Co, 1984), 25.
13. Joyce v Simi Valley Unified School District, 110 Cal App 4th 292 (2003).
14. T Baker, D Amerikaner, E Carroll, et al., Liability Risks for After-Hours Use of Public School Property to Reduce Obesity: A Fifty-State Survey (Oakland, CA: National Policy & Legal Analysis Network to Prevent Childhood Obesity, 2008), 3-4, http://changelabsolutions.org/publications/liability-schools-50- states (accessed May 3, 2013).
15. See, for example, Duson v Midland County Independent School District, 627 SW2d 428 (Tex Ct App 1981) (noting payments of private claims would divert money from schools and impair the quality and availability of public education).
16. Baker et al., Liability Risks. In most states, the type of immunity available to public schools is called governmental immunity. In some states, the public school districts are classified as part of a state agency, in which case the applicable immunity is called sovereign immunity. As a general rule, sovereign immunity is stronger than governmental immunity.
17. See, for example, Kaylor v Rome City School District, 600 SE2d 723, 726 (Ga Ct App 2004).
18. See, for example, McNees v Scholley, 208 NW2d 43 (Mich Ct App 1972) (holding that layout of school bus routes and stops is a "governmental function" and thus covered by immunity); 57 Am Jur 2d Municipal, County, School, and State Tort Liability §43 (2012).
19. Baker et al., Liability Risks, 8.
20. See generally Allen E. Korpela, Modern Status of Doctrine of Sovereign Immunity as Applied to Public Schools and Institutions of Higher Learning, 33 A.L.R. 3d 703 (1970).
21. Baker et al., Liability Risks, 7-9.
22. For information about the scope of sovereign or governmental immunity for school districts in your state, contact a local attorney with expertise in school law, your school district's attorney, or your state affiliate of the National School Board Association's Council of School Attorneys.
23. Some states also place limits on the amount of money recoverable in tort cases brought against public schools. Baker et al., Liability Risks, 14, notes 32-33.
24. See Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub L No. 109-59, §1404(2005);
25. M. Pedroso, Safe Routes to School: Helping Communities Save Lives and Dollars: Policy Report 2011 (Safe Routes to School National Partnership, 2011), http://www.saferoutespartner ship.org/media/file/SRTSNP-2011-Policy-Report.pdf (accessed May 3, 2013).
26. Participating schools are eligible for federal funding for safety and traffic improvements near the school.
27. See, for example, B. A. Sibley and J. L. Etnier, "The Relationship Between Physical Activity and Cognition in Children: A Meta-Analysis," Pediatric Exercise Science 15, no. 3 (2003): 243-256;
28. Getting Students Active Through Safe Routes to School: Policies and Action Steps for Education Policymakers and Professionals (Safe Routes to School National Partnership, 2010), 6-12, http://www.safe routespartnership.org/media/ file/EducatorsGuide.pdf (accessed May 3, 2013)
29. S. G. Trost, Active Education: Physical Education, Physical Activity and Academic Performance (San Diego, CA: Active Living Research, 2009), http://www.activelivingresearch.org/active education (accessed May 3, 2013)
30. K. K. Davison, J. L. Werder, and C. T. Lawson, "Children's Active Commuting to School: Current Knowledge and Future Directions," Preventing Chronic Disease 5, no. 3 (2008): A100, http://www.ncbi.nlm.nih.gov/pmc/articles/ PMC2483568 (accessed May 3, 2013).
31. Fall 2011 Safe Routes to School Program Tracking Brief (Chapel Hill, NC: National Center for Safe Routes to School, 2011), http://www.saferoutesinfo.org/ sites/default/files/page/Fall%202011-1-0.pdf (accessed May 3, 2013).
32. See, for example, Nguyen v State, 788 P2d 962, 964-65 (Okla 1990) (explaining that "initial policy level or planning decisions are considered discretionary and hence immune" but "operational level decisions made in the performance of policy are considered ministerial and not exempt from liability"). For more information about the extent of governmental immunity for school districts in your state, contact your school district's attorney.
33. Compare Downing v Brown, 935 SW2d 112, 114 (Tex 1996) (immunity would likely apply) with Robinson v City of Bartlesville Board of Education, 700 P2d 1013, 1015-16 (Okla 1985) (immunity would likely not apply).
34. In some states, nonprofit organizations may qualify for a defense of charitable immunity. See, for example, University of Virginia Health Services Foundation v Morris, 657 SE2d 512, 517 (Va 2008).
35. Solano County, California, has also found that providing parent permission slips for students participating in the Safe Routes to School walking school bus program significantly assuaged school (and parent volunteer) fears of liability, and thus was very helpful in making the program successful
36. Robin Cox (Solano County Public Health Department), in discussion with Sara Zimmerman (ChangeLab Solutions), July 2012. For additional practical tips for minimizing liability, see ChangeLab Solutions, National Policy and Legal Analysis Network to Fight Childhood Obesity (NPLAN), Safe Routes to School: Minimizing Your Liability Risk (Oakland, CA: NPLAN, 2010), http:// changelabsolutions.org/publications/SRTS-resources (accessed May 3, 2013).
37. K. Gavin, Safe Routes to School: Putting Traffic Safety First-How Safe Routes to School Initiatives Protect Children Walking and Bicycling (Safe Routes to School National Partnership, 2009), http://www.saferoutespartnership.org/ sites/default/files/pdf/Safety-report-final.pdf (accessed May 3, 2013) (discussing SRTS strategies that promote injury prevention).
38. Safe Routes to Schools: Case Studies Around the Country (Chapel Hill, NC: National Center for Safe Routes to School, 2010), 11, http://www. saferoutesinfo.org/sites/default/files/resources/srts-case-studies.pdf (accessed May 3, 2013).
39. P. Gordon-Larsen, M. C. Nelson, P. Page, and B.M. Popkin, "Inequality in the Built Environment Underlies Key Health Disparities in Physical Activity and Obesity," Pediatrics 117, no. 2 (2006): 417-424;
40. Lisa M. Powell, Sandy Slater, and Frank J. Chaloupka, "The Relationship Between Community Physical Activity Settings and Race, Ethnicity and Socioeconomic Status," Evidenced Based Preventive Medicine 1, no. 2 (2004): 1-2, 135-144, http://impacteen.econ.uic.edu/journal-pub/pub-PDFs/EBPM-1- 2-Powell%20et%20al1.pdf (accessed May 3, 2013).
41. US Department of Health and Human Services, Assistant Secretary for Planning and Evaluation, "Childhood Obesity," http://aspe.hhs.gov/ health/reports/child-obesity (accessed September 21, 2012).
42. Active Living Research, Designing for Active Living Among Adults (San Diego, CA: Active Living Research, 2008), http://www.activelivingresearch.org/ files/Active-Adults-0.pdf (accessed May 3, 2013);
43. N. Durant, S. K. Harris, and S. Doyle, "Relation of School Environment and Policy to Adolescent Physical Activity," Journal of School Health 79, no. 4(2009): 153.
44. For more information on types of joint use programs, see ChangeLab Solutions, "Model Joint Use Agreement Resources," last updated March 2009, http://changelabsolutions.org/publications/model-JUAs-national (accessed May 3, 2013);
45. Opening School Grounds to the Community After Hours (Oakland, CA: ChangeLab Solutions, 2012), http://changelabsolutions.org/publications/CA-JUA- toolkit (accessed May 3, 2013); CPEHN, Unlocking the Playground.
46. "Joint use agreements between cities and schools have been gaining popularity as local governments and school districts recognize the cost and space benefits of facility sharing." Natalie Bell, "Cities, Schools Turn to Joint Use Agreements to Maximize Space and Minimize Costs: Five Model Cities Meet the Educational, Recreational and Cultural Needs of Community Residents," Nation's Cities Weekly, September 3, 2007, http://www.thefree library.com/Cities,+schools+turn+to+joint+use+agreements+to+maximize+space+and.. .-a0168872213
47. See also 2012 Ariz Legis Serv Ch 14 (SB 1059) (West) (amending Ariz Rev Stat Ann §33-1551.)
48. Baker et al., Liability Risks, 12, note
49. For more information regarding the use of recreational use statutes by public entities, see ChangeLab Solutions, Summary of Legal Rules Governing Liability for Recreational Use of School Facilities (Oakland, CA: NPLAN, 2010), http://changelabsolutions.org/sites/change labsolutions.org/files/documents/ Liability-RecUse-JU-FINAL-2010.03. 19-revised-20111213.pdf (accessed May 3, 2013).
50. See Tenn Code Ann §29-20-112 (West 2011).
51. Baker et al., Liability Risks, 12, note 30.
52. Baker et al., Liability Risks, 3, 13.
53. Some states give possessors of land preferential treatment, lowering their duty of care to persons categorized as "licensees," that is, persons who enter the property for their own purposes and not to provide a financial benefit to the owner. In states following this approach, residents playing basketball at a school playground open on holidays would be licensees.
54. For a state-by-state summary of laws effecting joint use programs, see Change-Lab Solutions, "A Look at State Rules Affecting Joint Use Agreements," last updated April 2010, http://change labsolutions.org/ publications/state-rules-JUAs (accessed May 3, 2013).
55. See BlueCross BlueShield of Illinois, "Belvidere Family YMCA to Unveil Indoor 'Imagination Playground,' " last updated February 3, 2012, http://www.bcbsil.com/company-info/newsroom/news/2012-02-03.html (accessed May 3, 2013).
56. Research is also under way on integrating technology into playgrounds to increase active play. See, for example, Center for Computer Games Research, "User Modeling in Playware Physical Interactive Playground," http://game.itu. dk/index.php/User-Modeling-in-Playware-Physical-Interactive- Playground (accessed September 21, 2012).
57. Architects and builders are starting to use "active design" for homes and workplaces as well as playgrounds, to promote greener, healthier communities. See, for example, Paula Melton, "Architects Fight Obesity Epidemic Through Active Design," Environmental Building News, February 1, 2012, http://www.buildinggreen.com/auth/article.cfm/2012/2/2/Architects-Fight- Obesity-Epidemic-Through-Active-Design (accessed May 3, 2013);
58. R. Lopez, The Potential of Safe, Secure and Accessible Playgrounds to Increase Children's Physical Activity (San Diego, CA: Active Living Research, 2011), 4, http://www.active livingresearch.org/playgrounds (accessed May 3, 2013);
59. L. J. Willenberg, R. Ashbolt, and D. Holland, "Increasing School Playground Physical Activity: A Mixed Methods Study Combining Environmental Measures and Children's Perspectives," Journal of Science and Medicine in Sport 13, no. 2 (2010): 210-216.
60. See Peaceful Playgrounds, "Research," http://www. peacefulplaygrounds.com/research.htm (accessed September 21, 2012).
61. Vermont Departments of Health and Education & Action for Healthy Kids-Vermont, "Vermont Healthy Schools Resource: Physical Activity," 4, http://healthvermont.gov/local/school/documents/Healthy%20Schools%20Resource- Activity.pdf (accessed May 3, 2013).
62. See Department for Education and Skills (UK), "Primary Playground Development," http://www.scssp.co.uk/documents/ Sporting%20Playgrounds%20Booklet.pdf (accessed May 3, 2013).
63. Boston Schoolyards Initiative, "Schoolyards & Outdoor Classrooms," http://www.schoolyards.org/projects. outdoor.html (accessed September 21, 2012).
64. "Falls are the most common mode of playground injury and account for approximately 80 percent of all playground equipment-related injuries." National SAFE KIDS Campaign, "Playground Injury Factsheet," http://www.prevent injury.org/PDFs/PLAYGROUND-INJURY.pdf (accessed May 3, 2013).
65. See Public Playground Safety Handbook, (Bethesda, MD: US Consumer Product Safety Commission, 2010), http://www.cpsc.gov/PageFiles/107329/325.pdf (accessed May 3, 2013).
66. Some states have formally adopted the guidelines. See Pollack, et al., "Toward Environments and Policies," 110 (noting that states adopting playground safety standards have effectively reduced playground injuries).
67. M. Bossenmeyer, "Playground Liability: Accident or Injury," Peaceful Playgrounds, http://www.peacefulplay grounds.com/playground- liabilityaccident-or-injury.htm (accessed September 21, 2012).
68. See ChangeLab Solutions, NPLAN, "Safe Routes to School: Minimizing Your Liability Risk," 3.
69. Mississippi is one such state. See, for example, Glover v Jackson State University, 755 So2d 395, 401 (Miss 2000) (school covered by liability insurance waives immunity up to the policy limits), appeal after remand, 968 So2d 1267 (2007).
70. Georgia, on the other hand, follows the majority rule. See, for example, Dollar v Dalton Public Schools, 505 SE2d 789, 790 (Ga Ct App 1998) (school systems do not waive sovereign immunity by purchasing liability insurance).
71. R. D. Hursh, Liability or Indemnity Insurance Carried by Governmental Unit as Affecting Immunity from Tort Liability, 68 A.L.R. 2d 1437 (1959).
72. In some cases, schools may cite "fear of liability" as a proxy for other concerns (e.g., extra maintenance costs, fear of vandalism, administrative burden).
73. If that may be the case, addressing these other concerns is key. For example, the local park and recreation department could be asked to cover maintenance for extended playground hours. For other recommendations on how to address these issues, see CPEHN, Unlocking the Playground, 5-8.
74. The local city attorney or county council may be able to provide such analysis.
75. See CPEHN, Unlocking the Playground, 3-4 (discussing joint use program in Oakland, California that authorizes third party to run youth and community programs, and joint use program in San Diego County that covers both outdoor and indoor facilities); Boston Schoolyard Initiative, "Boston Schoolyard Initiative Recognized for Excellence in Getting Kids Active and Playful," last updated October 1, 2009, http://www.schoolyards.org/about.news.php?action= display&pressrelease-id=690 (accessed May 3, 2013).
76. For other examples of successful joint use programs, see Kaboom.org, "St. Petersburg, Florida: Play 'N' Close to Home," http://kaboom.org/docs/documents/pdf/playmatters/Play-Matters-St. Petersburg.pdf (accessed September 21, 2012);
77. Colorado Center for Community Development, College of Architecture and Planning at University of Colorado, "Learning Landscapes," http://www.learninglandscapes.org (accessed September 21, 2012).
78. CPEHN, Unlocking the Playground, 9-10.
79. Pollack et al., "Toward Environments and Policies," 106.