Myths do not die easily in America. We cling to them for various reasons: familiarity, convenience, etc. While other countries are busy repairing old and heavily used public skateparks, Americans continue to propagate the myth that allowing people to skate opens us up to enormous liability.
The repercussions of this myth should not be taken lightly. Over the last twenty years it has dissuaded individuals from skateboarding, allowed cities to unleash the powers of the police on kids pursuing their sport of choice, and has been a major obstacle in providing skateboarders with plentiful and challenging skateparks.
This myth persists despite the fact that few cases involving skateboarding liability have been filed in the last two decades. Poorly built skateparks and unsafe equipment led to many suits in the mid to late 70s, but the exact number of suits and their outcome is not known. Nevertheless, the myth persists that suits were plentiful, and that skatepark owners are as liable today as they were way back when skateboarders wore flimsy hockey helmets and volleyball kneepads.
Much has changed in the last two decades. We stand at the threshold of a new era in skateboarding, and there is no time like the present to shed the stereotype of danger and liability.
Skateboarding’s true liability is not known. Aside from the Consumer Product Safety Commission, which collects injury data from hospitals, no agency collects information regarding skateboard-related claims or provides a true profile of skateboarding’s real liability. This lack of data has allowed the myth to persist.
But there is a growing amount of anecdotal evidence to show that the risks associated with skateboarding are very low, and in some cases nonexistent. Bill Fowler of the Huntington Beach, California Department of Parks and Recreation has overseen the creation of two unsupervised public skateparks and is looking to build a third. The two existing parks were built in 1993 and 1994, and to date not one claim has been filed with the city regarding skateboard-related injuries at either park. Huntington Beach is not alone; the city of Santa Cruz has had the same experience.
Santa Cruz has “operated” Derby, an unsupervised skateboard park, for over twenty years, and according to Susan Harris of the Santa Cruz Parks and Recreation Department, not a single claim has originated from its use. In fact, the biggest problem that Santa Cruz is facing in regards to public skateparks is where the next one is going to be located. Harris says the fear of potential liability is hardly factored into the equation.
Both Huntington Beach and Santa Cruz do not feel that there is a great liability risk associated with their public skateparks, and this belief existed well before the passage of AB1296, the California State Assembly bill that designated skateboarding as a hazardous recreational activity. Fowler actually feels that if Huntington Beach wanted to limit liability at its recreational facilities, the city should tear down the softball diamonds – where claims arise weekly – and build more skateparks.
Neither Santa Cruz nor Huntington Beach needed to worry how an insurance carrier was going to react, because they are (like many municipalities) self-insured. Being self-insured has allowed the cities of Santa Cruz and Huntington Beach to be progressive in providing the kind of facilities that best serve the needs of the community. And even if a city is not self-insured, the International Association of Skateboard Companies has identified several insurance companies that currently cover municipalities with skateparks. The liability argument for banning or ignoring the needs of skateboarders has hardly a foot to stand on. Cities that operate their own skateparks have realized this, and cities that don’t yet can look to them for reassurance.
Private skateparks have many of the same choices that cities do. Depending on their owners’ financial strength, private skateparkks today are taking several different approaches in dealing with liability.
Todd Huber, operator of the California Skate Lab in Simi Valley, has “been through it all” searching for the correct coverage for his park. At first he was advised that he didn’t need coverage, but the property landlord required that the park have insurance. Later, the landlord told Huber that he would need additional coverage. In the end, Huber found an insurance carrier with the help of IASC, and he was in business.
Huber says that Skate Lab’s insurance policy is not cheap, but a policy is available, and through proper structuring it is affordable. Getting insurance has taken some of the risk out of operating a skatepark, but Huber took it one step further: he had his team of lawyers draw up a comprehensive waiver for the visitors and/or their parents to sign. The Skate Lab waiver is posted it on the park’s Web site (www.skatelab.com).
Waivers were once considered to be worth less than the paper they’re printed on, but times have changed – at least in California. Several recent decisions centering on health-club members who had signed waivers, injured themselves, then proceeded to sue the clubs, have given tremendous weight to the waiver and have barred the lawsuits from being heard. These court findings suggest that a well-drafted waiver can be an essential part of operating a skatepark.
If you own the land on which your skatepark is located, you obviously don’t have a landlord requiring you to purchase an insurance policy. It’s even been said that having insurance invites lawsuits. Since many attorneys will not take a new case on contingency if the potential defendant does not have a guaranteed source of money (i.e., an insurance policy), there may be some validity to this. But you never know what someone is willing to do, and you run the risk of losing your entire business if a judgment is entered against you.
In skateboarding, injuries are inevitable. What are not inevitable are the lawsuits that sometimes follow injuries. Marty Ramos of Kona Skatepark in Jacksonville, Florida credits ESPN’s X-Games for helping assert the idea that skateboarding is an “extreme” sport, and thus “dangerous” in the public view. Participants know that skateboarding has its hazards, and they assume those risks that accompany the sport.
It is the shared experience of those running both public and private parks that lawsuits arising from skateboarding are just not common; in fact, these days they are almost unheard of. And by taking advantage of the new trends in California law (and maybe other states as well), and the judicial enforcement of waivers, the myth that skateparks invite boundless liability should finally be put to rest.
Erica Tibbetts contributed to this article. Matthew Miller is an attorney-at-law in Solana Beach, California. He can be reached at: (619) 259-6969.