Society: News and Commentary: SocietyWatch

Law is undermining our common institutions and our freedom to use common sense. Common Good's Society Watch is a collection of recent news and commentary reflecting on this trend.

**If an article is publicly available online, a link to it is provided following the article summary. If no link is provided, please visit the primary source’s archives to access the article. 

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All Most Recent News

Primary School Bans Cartwheels, Handstands
ABC News, August 26, 2008

A primary school in North Queensland, Australia has banned cartwheels and all other forms of “gymnastics activities” during recess due to safety concerns. A grandmother of a child who was recently reprimanded for such behavior laments, "Sadly I think this is probably linked with the current society where litigation is rife and I feel that schools are probably trying to avoid a child being hurt and an irresponsible mother then trying to sue them for it.” Education administrator Vicki Baylis denies that the decision had to do with anything but student safety. "The issue around the gymnastics is around the safety of the kids and it was not motivated by any concept of litigation.” » article

Childminder Shortage Looms as Bureaucracy Forces Thousands to Quit
John Bingham, Daily Telegraph (UK), August 20, 2008

In England, excessive red tape is wreaking havoc on preschool education and child care providers, or "childminders." Education watchdog Ofsted, an agency in the British government that regulates schools, reports that almost a tenth of registered childminders have decided to quit the profession, with many blaming "increased regulation and paperwork." Despite this problem, the red tape is only increasing: starting next month, nurseries and other providers of child care will have to comply with new government requirements for children under the age of five. Instead of improving the situation, the bureaucracy and red tape installed by the government is decreasing the reach and efficiency of the nation's preschool education. » article

Son Battled Officers; Now Mom Fights Suit
Dorothy Korber, Sacramento Bee, August 10, 2008

A year after a violent gun battle in California, two sheriff’s deputies have filed a lawsuit against the mother of the man involved in the shoot out. Eddie Mies murdered his father and then shot and injured three deputies before being killed by those deputies. Now, deputies Jon Yaws and Greg Murphy are suing Eddie Mies’ mother, Karen. They are claiming $4 million—each—for emotional distress, medical expenses, loss of earning capacity, and punitive damages. Historically, the Firefighter’s Rule has protected citizens from suits filed by public safety workers, but Yaws and Murphy’s attorney, Phillip Mastagni, says that the rule has decayed substantially in recent years and is confident that their suit will overcome the rule. The Sacramento Bee quotes Karen Mies: “June 5 was a tragic day for me and my family, and it was a tragic day for the deputies who were injured. We were all victims that day. But this lawsuit is victimizing our family again. What do they want? My husband’s dead, my son’s dead. Do they want my house and my 10-year-old car?” Remarkably, a third injured deputy has decided not to go forward with a lawsuit: “I went through my own hard times, and I did some soul-searching," Melissa Meekma said. "My job was to protect that day, and that's what I did. That's the risk I took – and I know the price I paid… I had nightmares for a while. When I decided not to be part of the lawsuit, my nightmares stopped." » article [found via Overlawyered]

Our Class-Action System Is Unconstitutional
George Krueger and Judd Serotta, Wall Street Journal, August 6, 2008

In this week’s Wall Street Journal, George Krueger and Judd Serotta call for a "new wave of class-action reform." Currently, when a settlement is reached in a class action suit, and few claimants actually receive payments, the remainder is distributed to alternative beneficiaries via the theory of cy pres ("as near as possible"). Cy pres is defective, say Krueger and Serotta: "Judges, in their unlimited discretion, have occasionally been known to order a [cy pres] distribution to some place like their own alma mater or a public interest organization that they happen to favor…The Constitution does not give courts the authority to satisfy notions of 'deterrence' by giving institutions like legal aid societies or universities windfalls when those entities are not even parties to the lawsuit." Krueger and Serotta suggest possible solutions: giving the remainder of the settlement to the government, giving it back to the defendant, or developing a less arbitrary system of finding appropriate beneficiaries. They go on to call for attorney compensation "based on reward[s] actually recovered by class members, as opposed to the total claimed 'value' of the settlement." » article

Are Playground Safety Mats Too Hot to Handle?
Sewell Chan, New York Times, July 21, 2008

Regulations designed to make playgrounds safer may lead to other hazards, as Sewell Chan reports in the New York Times "City Room" Blog. Despite complying with the rigorous Consumer Product Safety Commission (CPSC) regulations, rubber safety mats covering the roughly 1,000 playgrounds in New York City have come under scrutiny for another potential hazard–reaching unsafe temperatures during hot weather. At least three lawsuits stemming from playground burns have been filed in the last year.  Adrian Benepe, Commission of New York City’s Department of Parks and Recreation, said the rubber mats were the best solution among those approved for use by the CPSC and noted that all parks contain signs warning children to wear shoes. Even so, advocates have called for replacing all of the rubber mats, which could cost as much as $100 million. » article

Build a Wiffle Ball Field and Lawyers Will Come
Peter Applebome, New York Times, July 10, 2008

In Riverside, CT, controversy has erupted over the use of town property by local teenagers. Over the course of three weeks this summer, about a dozen high school-age teenagers cleared a vacant town lot and established a makeshift Wiffle ball field. The New York Times has published a piece chronicling what it calls ‘Wifflegate.’ The story cuts across key issues: the value of play for the development of young people; the rights of nearby homeowners to a quiet neighborhood; neighborhood property values (the value of the lot alone is $1.25 million) and inevitable liability concerns. Many of the players can’t seem to understand what the big deal is: “‘They think we’re a cult,’ said Jeff Currivan, 17. ‘People think we should be at home playing Grand Theft Auto.’” The local newspaper, the Greenwich Time has written an editorial in support of the teenagers, and town selectman Lin Lavery is hoping for a reasonable resolution: “People can remember how much fun it was to go out in the woods in the summer, build a fort, do something fun and creative, so there’s something pretty cool in what these kids did, especially at a time kids grow up in such an incredibly structured and stressful environment…But we have a situation that’s escalated. Neighbors are upset that it’s too close to their property; building has been done on town property; there are issues of traffic and drainage. We’re hoping to come up with a compromise, but there are a lot of issues to address.” » article

Eleven Schools in Bronx Will Have New Play Spaces for September
Elise Kinger, Daily News, July 7, 2008

The non-profit group Out2Play will renovate playgrounds in 11 Bronx schools this summer as part of their initiative to improve the quality and number of playgrounds in New York City schools. According to report by Bronx Borough President Adolfo Carrión, his 42% of Bronx residents are obese, the highest obesity rate in the five boroughs. In its three years of operation, Out2Play has created 15 playgrounds throughout the city, including one at Public School 55. Luis Torres, President of PS 55 says that with the playground has come fewer fights and injuries, along with a sense of pride. "Because the students helped design the playground, they feel protective of it and watch out for vandals. I make sure to tell all the kids, 'This is your playground,’” said Torres to the Daily News. Out2Play’s founder and Director, Andrea Wenner, stresses the need for recess time spent in a stimulating environment. Without a playground, "they're not being physically active, they're getting into fights and not interacting in a constructive way." » article

Common Sense on Punitive Damages
L. Gordon Crovitz, Wall Street Journal, June 30, 2008

“We should cheer when the Supreme Court issues clear, transparent and common-sense rules,” writes L. Gordon Crovitz for the Wall Street Journal. These rules give “judges jurors and citizens [a] new understanding about how the legal system should work.” Crovitz is referring to the recent Supreme Court decision reducing the amount of punitive damages in the Exxon Valdez suit from $2.5 billion to $500 million. Crovitz hails the court’s use of actual numbers to determine the appropriate ratio of punitive-to-compensatory damages: 1 to 1. Crovitz opines that for years, out-of-control jury awards and frivolous litigation has rendered the legal system in America “less a system than a series of random results.” Agreeing with Justice Souter’s identification of the “stark unpredictability of punitive awards,” Crovitz observes that there has been no consistent rubric for determining punitive damages. He, however, predicts that it will require further litigation to determine if this 1:1 rule becomes the bright-line for determining the appropriateness of punitive damages in the future. » article

Go and Play
Editorial, The Buffalo News, June 4, 2008

A Buffalo News editorial argues that there needs to be an “official recognition that recess has both a human and an educational purpose,” lamenting that New York State “has no rule requiring recess” and that across the country “too many schools seem to have forsaken it.”  The piece shares the national Parent Teacher Association’s sense of “appropriate alarm” that a “combination of factors” including No Child Left Behind “has knocked recess out of as many as 40 percent of elementary schools nationwide.” The editorial notes that it is “realistic” to recognize that recess will improve kids’ performance in school, as “the attention span of children is limited…a dose of fresh air and a rise in heart rate is often just the ticket to keeping young minds sharp and receptive.” » article

Lawsuits That Benefit Only Lawyers
Stuart Taylor, Jr., National Journal, May 17, 2008

According to Stuart Taylor’s column in National Journal, a $400 billion lawsuit against 50 companies for doing business with the South Africa’s Apartheid government “remind us how often plaintiffs’ lawyers pervert our lawsuit industry for personal and political gain.” Taylor is highly critical of the Supreme Court for allowing this case to proceed to trial. The post-Apartheid South African government agreed with Taylor’s analysis, “warning that the case could discourage much-needed direct foreign investment in South Africa” and “strongly [urging] dismissal.” Taylor examines the specifics of how this particular case, reflecting a larger trend in American courts, “will do victims of wrongdoing little or no good,” “will penalize no human being who has done anything wrong,” “will come at  the expense of the general public,” and most important, “will deter more conduct that is beneficial than harmful.” Such cases, according to State Department legal adviser John Bellinger, make “foreign governments regard the U.S. Judiciary ‘as something of a rogue actor.’” As Taylor notes, “timely lawsuits against real wrongdoers can deter future misconduct,” but in this case, it is more likely that this suit will deter beneficial behavior such as investment and diplomacy. Common Good, like Taylor, recognizes that such cases can also undermine people’s faith that the civil justice system will treat them fairly if they act reasonably. » article

No Time for Fun: Children and Parents in ‘Play Crisis’
John J. Edwards III, Wall Street Journal, May 12, 2008

In the Wall Street Journal’s work/life balance blog, “The Juggle,” John J. Edwards III of the picked up on Tufts psychology professor David Elkind’s article from Greater Good magazine declaring a “play crisis.” Elkind outlines the social and cognitive benefits of play – particularly “the unstructured, self-motivated, imaginative, independent kind” and “points to the elimination of recess at many schools in favor of more classroom instruction” as a major reason for this crisis. His proposed solutions include requiring the construction of playgrounds in new housing developments, moving away from “the general problem of test-driven curricula” in schools, and requiring that schools provide a daily half-hour of recess.  Elkind also suggests that schools’ fear of high liability insurance costs and “parents’ greater appetite for litigation” is “overblown”, and doesn’t justify removing recess and physical activity from children’s daily routines.

Arizona State Senate Says Schools Must Provide Recess
Howard Fischer, Arizona Daily Star, April 28, 2008

Arizona’s state Senate passed a bill by a 17-10 vote that would mandate that schools provide a daily half-hour of recess for Arizona’s 1st through 6th graders.  According to its sponsor Mark Anderson (R-Mesa), “There are some districts that struggle with the concept of letting children be children.”  Anderson noted that some school districts work in a “full hour of physical education” and “still manage to teach kids how to read and do math.”  He added that he has “no sympathy for officials who say that would be trading test scores for tetherball.”  Although the bill passed the state Senate, it was later blocked by voice vote in the state House because of concerns that schools wouldn’t be able to opt out of a state mandate.  An Arizona Daily Star editorial argued, however, that “the bill wouldn't be necessary if many schools weren't getting rid of recess… If school districts have the option of opting out, we believe many of them will do just that. Kids will be no better off than they are today.”  A poll by the newspaper found that 82% of its readers supported the mandatory recess measure. » article 

Barack Obama Talks Regulation on Fox News Sunday
Interview with Chris Wallace, April 27, 2008

In an interview with Fox News’ Chris Wallace, Democratic presidential candidate and U.S Senator Barack Obama suggested that a “top-down command and control” regulation environment “…creates a lot of bureaucracy and red tape and oftentimes is less efficient.”  Senator Obama suggested that “If you simply set guidelines, some rules and incentives, for businesses – let them figure out how they’re going to, for example, reduce pollution,” creates a more efficient regulatory climate “…than dictating every single rule that a company has to abide by.” » transcript

Outlawing Fun -- Have Our Courts Gone Too Far?
Margaret Lowery, Madison County (IL) Record, April 20, 2008

Drawing heavily on the writings of Common Good Chair Philip K. Howard, Margaret Lowery of the Madison County Record writes that “[o] ur judicial system has forgotten that lawsuits concern not only the parties to the litigation, but everyone in society.”  Lowery’s article recaps the Tomlinson case from England in 2003, in which the English equivalent of the Supreme Court found that “misguided concepts of justice hurt the public.”  Noting a lack of “legal certainty” in American courts, Ms. Lowery writes that “when a legal system finds liability in every possible activity of life, it becomes an arbitrary form of governance.”  Lowery adds that “[t]he general public is now afraid of our Courts and of our legal system, because anyone can sue anybody for anything.”  She suggests that “the fear of lawsuits materially alters how people live” in the United States, noting that “schools have removed playground equipment, banned dodge ball and tag because of liability concerns…jungle gyms, diving boards, and seesaws are now relics,” and that as a result, “…our children, rescued from the risks of roughhousing and accident, suffer from the far greater risks of obesity, drug abuse and depression.”  Lowery closes by arguing that “[i]nstead of focusing on how a ruling will affect one litigant, Courts must weigh the affect on the community as a whole.” » article 

Related: When Judges Won't Judge by Philip K. Howard

Foreign Courts Wary of U.S. Punitive Damages
Adam Liptak, New York Times, March 26, 2008

“Most of the rest of the world views the idea of punitive damages with alarm,” writes Adam Liptak in his legal column for the New York Times, highlighting criticisms of punitive damages by legal thinkers abroad. Some think “it is not fair…to give plaintiffs a windfall beyond what they have lost.” Others fear plaintiffs and juries act as “private public prosecutors” and mete out punishment without due process. Most disfavor “the U.S. practice of permitting a lay jury to exercise largely discretionary judgment with limited constraints in awarding punitive damages,” considering the “ad hoc opinions of a jury” to be a “poor substitute for the considered judgments of government safety regulators.”  Liptak notes that large awards, such as the $5 billion (later reduced to $2.5 billion) punitive damages against Exxon, “terrify foreign courts” and that other countries that do allow punitive awards typically do so “in limited circumstances and modest amounts.”

more »

US Legal System 'Worse than Russia'
Michael Herman, The Times Online, March 18, 2008

According to Michael Herman’s article in The Times ( UK), “Fear of the American legal system has created an atmosphere in which lawyers working for European businesses would prefer to face a major dispute in Russia or China than the US.”  A survey of 180 Europe-based in-house counsel commissioned by the international law firm Lovells found that “the US [legal] system, although less corrupt than most, is ‘filled with traps in which the inexperienced or uninformed may easily become caught’” such as the “multiplicity of courts, prosecutors and regulators at state and federal levels.”  This survey’s findings add weight to the growing concern that major employers and investors, fearing America’s unpredictable civil justice system and regulatory environment, may take their business elsewhere. » article

See also Sustaining New York's and the US' Global Financial Services Leadership

For Youngsters, Leaps and Boundaries
Kathryn Shattuck, New York Times, March 16, 2008

Kathryn Shattuck’s New York Times article examines the book Designing Modern Childhood, co-edited by City College architecture professor Marta Gutman, which examines children’s play areas around the world and the “adults who thought they knew best when it came to providing a child’s physical world.”  Describing an upper Manhattan playground that is conducive to free play, Professor Gutman notes that, “The intention is to fall...[y]ou don’t want to make the environment so safe that it’s not challenging.”  Ms. Shattuck contrasts this to the stifling trend that fear of liability often has on playground design, quipping ironically, “What? Get out the lawyer’s number.”  Later, Shattuck notes that, “Adventure playgrounds swept through Europe, particularly Scandinavia, and eventually reached the United States, though in smaller numbers and less successfully, because of liability issues.” » article

Lackluster Playgrounds
Robert Moran, Salem (MA) Gazette, March 14, 2008

In his “Thinking About Salem” column, Robert Moran suggests that challenging playgrounds are necessary for teaching the children of Salem, MA – and, presumably, all children – to develop the skills that will be necessary as adults.  He refers to three reasons identified by the Children’s Institute for Learning and Development (CHILD) that “communities do not build challenging playgrounds: fear of litigation, stringent safety standards and perceptions playgrounds are dangerous.” Moran suggests that these concerns shouldn’t prevent the town from making playgrounds appeal to 8 to 12 year old “tweens” who are drawn to video games. As Moran points out, “Good design, maintenance, supervision and orientation can minimize the chance and severity of playground injury.” Perhaps more important than that, he argues that “injury and childhood are interwoven” and that risk exists in activities such as “baseball, skating and dancing…even isolation with a computer.”  » article

Freedom Means Responsibility
George McGovern, Wall Street Journal, March 7, 2008

In a Wall Street Journal opinion piece, Common Good Advisory Board member and former U.S. Senator George McGovern asks, “Why do we think we are helping adult consumers by taking away their options?”  McGovern says that “[u]nder the guise of protecting us from ourselves, the right and the left are becoming ever more aggressive in regulating behavior.”  He goes on to decry government paternalism in health care, the economy, and lending practices, comparing them to other segments of society where we accept risk: “We don't take away cars because we don't like some people speeding. We allow state lotteries despite knowing some people are betting their grocery money.” McGovern later suggests that in order to maintain a “healthy civil society,” it is important to make society aware of risky choices without forcing citizens to avoid them: “We don't operate mindlessly in trying to smooth out every theoretical wrinkle in life.…The nature of freedom of choice is that some people will misuse their responsibility and hurt themselves in the process. We should do our best to educate them, but without diminishing choice for everyone else.” » article 

I’m Not Running for President, but....
Mayor Michael Bloomberg, New York Times, February 28, 2008

New York Mayor Michael Bloomberg announced that he won't be running for President, but is adamant about the need to “steer the national conversation away from partisanship and toward unity; away from ideology and toward common sense.” Mayor Bloomberg emphasized the need for practical solutions that aren’t limited by politics-as-usual, some of which “have traditionally been seen as Republican, while others have been seen as Democratic.” Common Good hopes that the Mayor’s call for bold, independent and innovative common-sense solutions--that “more of the same won’t do”--will resonate with candidates and voters in 2008.  This approach, as the Mayor agues, can “produce progress on the most critical issues” in our hospitals, our courts, and our schools. » article

Lawsuit, Inc.
“Review & Outlook”, Wall Street Journal, February 25, 2008

“Should state Attorneys General be able to outsource their legal work to for-profit tort lawyers, who then funnel a share of their winnings back to the AGs?” a Wall Street Journal op-ed asks. The piece focuses on the state of civil justice in Mississippi and the controversial ties between Mississippi Attorney General Jim Hood and private lawyers. “The Mississippi Senate recently passed a bill requiring Mr. Hood to pursue competitive bidding before signing contracts of more than $500,000 with private lawyers. The legislation also requires a review board to examine contracts, and limits contingency fees to $1 million.”  The Journal editorial board hopes that this law might limit the “perverse incentives that skew the cause of justice” resulting from “AG-tort bar mutual financial interest.” Perhaps the bill will also help to restore Mississippi citizens’ trust in their much-maligned civil justice system. » article

Taking Play Seriously
Robin Marantz Henig, New York Times Magazine, February 17, 2008

“[P]laying, though it might look silly and purposeless, warrants a place in every child’s day.” 

According to Robin Marantz Henig’s piece in the New York Times Magazine, there is a growing “consensus view [among scientists who study play] that play is something more than a way for restless kids to work off steam; more than a way for chubby kids to burn off calories.” If play were indeed nothing more than exercise and stress relief, concern over its shrinking role in children’s lives would be justified. But play, as Ms. Henig’s article examines in depth, is “more than a frivolous luxury...it is a central part of neurological growth and development — one important way that children build complex, skilled, responsive, socially adept and cognitively flexible brains.”

more »

Red Tape Deterring Volunteers
BBC News, January 28, 2008

According to Baroness Julia Neuberger, chairwoman of the UK’s Commission on the Future of Volunteering, “too many people are being put off volunteering. Many people come forward to offer their time and skills, but red tape and unnecessary bureaucracy get in the way.” She was particularly concerned with the use of criminal background checks on potential volunteers, a step which is only necessary for those working with children or vulnerable adults. She notes that, if the UK is to remove barriers to volunteering, ”it is time to “re-think the obsession with any risks that might be involved.” » article

Lawmakers Consider Making Food Donations Easier
Jeremiah Jacobsen, WINK News (Fort Myers, FL), January 21, 2008

“Fear could be causing good food to go to waste” in Florida because restaurants fear “a possible lawsuit if the donation goes bad.” Fort Myers, FL area restaurants used to donate leftover food, but according to a local bakery owner, “all of this liability issue came about, so we stopped.… You want to give and you want to do the right thing, but then the other part of your brain says, wait a minute…I’ve got to watch my own.” State legislators are considering a bill that will allow restaurants “to donate leftover perishable items to food banks and shelters for free and without having to worry about liability” in order to support state shelters and food banks. » article

Unintended Consequences
Stephen J. Dubner and Steven D. Levitt, Freakonomics Blog (New York Times), January 20, 2008

In their New York Times blog, Freakonomics authors Stephen Dubner and Steven Levitt explore how the Americans With Disabilities Act (A.D.A.), along with two other well-meaning laws, can produce unintended and unwanted consequences.  In showing that the A.D.A. might “hurt the very patients it is intended to help,” they recount the story of Andrew Brooks, a California orthopedic surgeon, who was required by the A.D.A. to foot the $240-per-session bill for a patient’s sign language interpreter or risk a discrimination lawsuit. Dr. Brooks found that his colleagues would be reluctant to treat patients with special needs because they feared the possibility of A.D.A. lawsuits. He worried that: “This kind of patient will end up getting passed on, getting the runaround, not understanding why she’s not getting good care.” Dubner and Levitt also cite a study which found that, “when the A.D.A. was enacted in 1992, it led to a sharp drop in the employment of disabled workers.… Employers, concerned that they wouldn’t be able to discipline or fire disabled workers who happened to be incompetent, apparently avoiding hiring them in the first place.”  These cases are further evidence that when people fear or distrust the civil justice system, they often act irrationally, defensively, and against the best interests of society. » article

UK: Toy Gun Used on Stage Must Be Registered
BBC News, January 18, 2008

A theater group in the United Kingdom has been forced to register toy weapons -- including "a toy gun which produces a flag saying 'Bang'" and plastic swords -- with the police in order to meet U.K. Health and Safety guidelines, according to BBC News. The use of these toy weapons as stage props, in this case in a pantomime of ‘Robinson Crusoe,’ are regulated by the Health and Safety Executive (HSE).  A HSE spokesman argued such policies exist to ensure that the “risks are sensibly managed.” The producers of the show, on the other hand, did not see risk in the situation: “It gets a bit farcical when you are dealing with plastic swords.” » article

UK Prime Minister Vows to Fight Nanny State Culture
Steve Doughty, Daily Mail (UK), January 16, 2008

In the UK, new Prime Minister Gordon Brown has promised to “fight the nanny state culture that removes hanging baskets from the streets and stops children joining the Scouts.” Brown called for new thinking in Parliament to “prevent the development of useless laws and rules that do no good in the name of health and safety.” Brown launched the Risk and Regulation Advisory Council, which seeks to examine laws “governing obesity, company management, and ‘systemic risk aversion.’” Brown’s new initiative stems from a 2006 watchdog report which found that the “state’s attitude to allowing people to take risks was ‘defensive and disproportionate’ and produced ‘regulatory overkill.’” Common Good supports Mr. Brown’s efforts to bring risk aversion and overregulation into the public policy spotlight. » article

Individual Court Cases

Student Takes His C to Federal Court
Jonathan Saltzman, Boston Globe, October 4, 2007

District Court Judge Michael A. Ponsor recently dismissed a 15-count lawsuit against the University of Massachusetts at Amherst (and seven other defendants) brought by a 51-year-old paralegal “after a teaching assistant graded a political philosophy class on a curve and turned [his] A-minus into a C.”  The university, the student argues, “violated his civil rights and contractual rights and intentionally inflicted ‘emotional distress.’”  An appeal is being considered.  Catharine Porter, UMass-Amherst’s ombudsman and a defendant in the suit, states: “‘If every student that didn't like his or her grade started to do this, we'd have to hire, I don't know, 25,000 attorneys ….’”  The university’s attorney took a similar public policy-focused tack in arguing before Judge Ponsor, asking: “‘Does the court really want to put itself in the business of reviewing, under some constitutional or federal statutory doctrine, the propriety of the grades which a student has received?’”  For Judge Ponsor, at least, the answer is no.  article »

Improving Our Judicial System: Bell Atlantic Corp. v. Twombly
June 28, 2007

Two recent Supreme Court decisions regarding access to the justice system highlight the importance and relevance of restoring reasonableness to the law. Only one of the rulings makes sense.

» CG commentary

Bouncing on Trampoline Not an Exact Science, Judge Rules
Steve Gonzalez, Madison Record (Illinois), November 8, 2006

Madison County (IL) Circuit Judge Lola Maddox recently dismissed “[a] 30-year-old man’s $50,000 trampoline injury lawsuit” against his 13-year-old nephew which claimed that “he sustained ‘severe and permanent’ injuries when his nephew … failed to warn him that he was jumping near him on a trampoline.”  Judge Maddox based her dismissal on a 2002 Illinois Supreme Court decision that held that “landowners owed no duty to a minor plaintiff because the risk of injury from using a trampoline were open and obvious.”  Her opinion states: “‘Plaintiff attempts to avoid dismissal based on the Illinois Supreme Court case of Sollami by distinguishing that the plaintiff is not suing the owner of the trampoline but rather the 13 year old boy he was jumping with when he was injured.  The court finds it incongruous that the plaintiff argues that a 13 year old has a duty to maintain a proper distance from him on the trampoline, or control his bouncing, or have warned a 30 year old man of the open and obvious dangers ….  Bouncing on a trampoline is not an exact science ….  People on trampolines bouncing at the same times occasionally bounce into each other and should expect to do so.  A minor defendant can have no greater duty to warn about such obvious risks than a manufacturer.’”  article »

Common Sense-Impaired
Wall Street Journal, October 19, 2006

In an editorial in Tuesday’s edition, The Wall Street Journal questions last week’s finding by the Ninth Circuit Court of Appeals that United Parcel Service (UPS) “has violated federal law by banning drivers who are deaf.”  Of particular concern to the paper is the three-judge panel’s ruling “that UPS was obliged to prove that allowing the deaf to drive one of its … vehicles would be unsafe” even though the panel “acknowledge[ed] that federal law requires drivers of trucks heavier than 10,000 pounds to be able to hear.”  The editorial board writes: “Certainly, deaf Americans can now do many jobs that were unfairly denied them in an earlier era.  But professional driving remains the kind of work that also involves public safety.  UPS drivers have to keep to a tight schedule, often amid crowded urban traffic where the ability to hear is needed to prevent accidents to other cars and pedestrians.  A company such as UPS is obliged to take such precautions if only to protect itself against liability.”  article »

Skateboard Park Waiver Wipes Out in Top Court
Robert Schwaneberg, Star-Ledger (New Jersey), July 18, 2006

The New Jersey Supreme Court recently held that “commercial recreational facilities” cannot be shielded from liability “for their own carelessness” by getting patrons to sign a liability waiver.  The case before them involved a 12-year-old New Jersey boy who broke his thighbone at a skate park, one week after his mother signed a waiver allowing him to skate there, and which contained a provision that allowed a suit “only if the skate park ‘intentionally failed’ to correct a hazardous condition or unsafe equipment.”  In their suit, the boy’s parents claimed the park “fail[ed] to supervise ‘aggressive skateboarders,’” which the park denies.  The park’s lawyer “predicted the ruling would have a ‘chilling effect’” on providers of recreational opportunities: “‘This affects field trips and a whole host of sports activities.’”  Relating a similar thought, a staff attorney for a legal advocacy group that filed an amicus curiae brief in the case stated: "‘These skate parks are a lot safer than skating on the street. …  The more you raise the cost, the fewer kids are going to be able to participate.’"

INDIVIDUAL COURT CASES, continued »

International

Cotton Wool Kids Can’t Swim: The Death of Common Sense?
Generation Youth Issues, November 26, 2007

Across the pond, it’s getting harder for parents to bring their children for a swim. Generation Youth Issues, a UK-based research group that “campaigns against the overregulation of young people’s lives,” issued a press release to kick off their campaign to eliminate “irrational safe swimming policies being adopted by council swimming pools across Scotland.”  These policies, developed by the Institute for Sports and Leisure Management, insist on a “one adult to one child relationship” for admission to public pools.  The press release recounts stories of parents and children turned away at the gates because of this “overzealous bureaucracy” and its “hyper-cautious ‘cotton-wool’ approach” to child safety.  As a result, single parents, “parents with more than two children under the age of 8,” and large groups without 1:1 “can forget about going swimming in many of the pools in Scotland.”  Generation Youth Issues chairman Stuart Waiton argues that “the new procedures seem to bear no relationship to the real dangers faced.”  Similarly, as one frustrated parent commented, such policies are “patronizing and stupid” because they suggest that “kids need to be protected from [parents’] negligence.” Common Good supports Generation Youth Issues’ efforts, and hopes that regulations will “stop treating every child in everything they do as ‘at risk’.”  The goal, after all, is not to keep kids out of the pool but to “get more children swimming.”  press release »

Related: Safety Concerns 'Harming Children'

Safety Guidelines Are Making Council Playgrounds Too Boring
Mathew Little, Children Now, September 26, 2007

The British organization Playlink has released a report showing that “fear of litigation among local councils” has resulted in Britain’s playgrounds lacking “excitement and risk.”  “The survey found that councils constrict the design of play areas by rigidly adhering to guidance they do not always consider helpful.  Nearly two-thirds of the 77 respondents said the possibility of litigation was a major influence on the kinds of equipment they purchased for playgrounds.”  Sarah Cheverton, author of the report – which “concludes that an over-cautious approach is 'undermining the necessary presence of risk within children's play’” – relates: “‘The underlying ethos of local authority service provision is often predominantly risk-averse.  But exposure to risk is vital to encourage creativity and personal development.'”  Alison Moore-Gwyn, chief executive of Fields in Trust, agrees, adding that “there should be an acceptance that if a child takes a calculated risk, the local authority cannot be held liable.”  article »

Hee-Haw Kids in Donkey Derby
Stephen White, Daily Record (Scotland), July 28, 2007

After a 39-year problem-free run, a seaside Scottish resort decided to bar youngsters from participating as jockeys in its annual donkey derby – due to “‘health and safety reasons.’”  Scotland’s Daily Record reports that “killjoy insurance bosses refused to cover this year's event in case kids fell off and parents sued for damages.  The race had to be run with inflatable toys on the donkeys instead of children.”  “‘It's like you shouldn't be taking your kids out at all these days,’” says one parent of the resort’s decision.  “‘I want my sons to enjoy things like donkey rides and slides and paddling in the sea but give it a few years and they won't be allowed to do any of those.’”  article »

The End of Risk
Lois Rogers, New Statesman (UK), July 26, 2007

Writing in the United Kingdom’s New Statesman magazine, Lois Rogers argues: “This island was once populated by an upbeat, outgoing sort of race – the kind who rallied together in adversity, bailed out each other's houses in times of flood, and popped round to neighbours with a casserole if someone sprained an ankle and couldn't cook.  Nowadays, it is more than likely that people would be too busy investigating which authority to sue for the unexpected rainfall, and the victim of an injured ankle would be too absorbed with putting together a personal injury claim to eat a donated dinner.”  “Since the mid-1990s,” she continues, “(Britons) have created an entire industry of ‘fear entrepreneurs’ – lobby groups, campaigners, regulators and inspectors – whose livelihoods depend on fuelling concern about the dangers of everyday life.”  In 2006 alone, “there were 33 acts of parliament and more than 1,000 new regulations aimed at reducing various forms of risk.”  Rogers quotes Kent University professor Frank Furedi who “ascribes the creation of phantom risk to the absence of real danger or adversity in our lives.”  "‘Safety has become a commodity which has a value of its own,’” he states.  “‘It is not something you discover through trial and error: it is something you hold on to and do not change.  I think that attitude will change only when there is a genuine external threat, like a war or a really serious disaster.’”  article »

Don't Wrap Kids in Cotton Wool
Oonagh Blackman, Daily Mirror, July 18, 2007

Britain has announced an initiative – “Staying Safe” – “to encourage parents to let their young ones play in the fresh air more as long as they are in a safe environment.”  Ed Balls, Britain’s first Secretary of State for Children, Schools, and Families, worries that parents and teachers are “let[ting] fussy health and safety rules” keep children from having fun.  “’We want them to be protected from any sort of harm and abuse,’” he states.  “‘But this does not mean that we should wrap them in cotton wool.  Childhood is a time for learning and exploring. …  Of course children should be able to play conkers and have snowball fights.  We want to support parents and teachers to make the right decisions and strike the right balance so children can have fun and learn through play.’”  The government relates that a third of British children never play outside – but that “half watch television for more than three hours a day.”  article »   Staying Safe document »

Compensation Culture Is Crippling Our Schools
David Powles, Norwich Evening News 24 (UK), February 26, 2007

“[A] fresh attempt to claim money from Norfolk's (UK) schools is launched on average once a week,” reports Norwich Evening News 24’s David Powles, “with 411 compensation bids made in the past seven years.”  “[T]he problem has become so bad,” Powles relates, “teachers are afraid to provide activities that do not fall broadly within the national curriculum for fear of being sued.”  This despite the fact that, of the 411 claims against the county’s schools – claims which include allegations of bullying and “failure to properly educate children,” as well as “slips, trips and injuries suffered when playing sports” – only 127 have proven successful.  (These successful claims, however, have resulted in payouts totaling £460,000.)  Powles quotes John Baldwin, Norfolk County Council’s risk and insurance manager, who states: “‘There will always be accidents in the playground.  There are claims for things that you look at and think there is no blame to be had there, but these people are supported by the legal system and this compensation culture that we now have.  We have had instances where people will try to sue for accidents in the playground or if they are playing hockey and get hit by a stick.  But there will always be hazards about - you can't wrap children in cotton wool.’”  article »

Too Scared to Let Our Children Play
Dan Grimmer, Norwich Evening News 24 (UK), February 14, 2007

A survey conducted by the South Norfolk (UK) County Council “has revealed a real fear of litigation among playgroups, nurseries, after school clubs and other groups which provide play opportunities for children.”  The council’s head of cultural development, Heidi Bellamy, relates: “‘The consultation revealed a fear of litigation, both real and imagined, arising from health and safety legislation.  That has seen a reduction in opportunities for children to experience risk and challenge, which is an essential part of a child’s development.’” “‘[I]t is the responsibility of play provision,’” she continues, to provide children “‘with exciting and stimulating environments that balance risks appropriately.’”  Efforts to remove all risk from play equipment “could end up being more dangerous … with children resorting to misusing the equipment in a desperate attempt to gain stimulation.”  The Royal Society for the Prevention of Accidents’ David Yearley agrees, stating: “‘Play areas should be as safe as necessary, but not as safe as possible.  Parents have to accept that children may get hurt while playing ….  What we must do is try to ensure that those injuries are not too serious.’”  article »

Prevent Kids’ Accidents: Have Fewer Children . . .
Mick Hume, Times (UK), February 13, 2007

Columnist Mick Hume expresses tongue-in-cheek outrage at the findings of a British government report, “Better Safe than Sorry,” that relate “that the Government’s record on preventing [accidental injuries to children] is ‘a disgrace.’”  “How dare that Tony Blair do nothing to stop our children falling over/off things?,” he asks.  To the report’s claim that “injuries caused by accidents such as burns, falling down stairs, slipping on railway embankments and poisoning are ‘a leading cause of death and illness in children aged 1-14,’” Hume notes that “[t]he death rate for accidents is 3 per 100,000 kids.”  He agrees with the report’s authors, the Audit Commission and the Healthcare Commission, that many accidents are “’preventable,’” and offers this simple solution: “All we need do is ban stairs, bicycles, railway embankments, playgrounds, kitchens, and anything poisonous.  Or just make children stay in bed.  Or don’t have them in the first place.  Nobody is accident-proof.”  “The obsession with avoiding accidents is unlikely to make life safer,” Hume concludes his piece, “but it could make it considerably more sorry, giving young people the notion that they are unable to cope with anything and always need somebody to blame.”  article »

INTERNATIONAL, continued »

Miscellaneous

We Can’t Regulate Risk out of Our Lives
Taylor Armerding, Eagle-Tribune (North Andover, MA), January 6, 2008

Taylor Armerding of the North Andover, MA Eagle-Tribune has proposed a New Year’s Resolution for the country: “Could we all just lighten up in 2008?”  In Salem, MA, a senior citizens' bake sale was shut down because the food wasn’t prepared in a kitchen with a Board of Health permit. This, like the closure of “some of the best sledding hills in the [Andover] region,” is yet another example of a risk-averse society that seems unwilling to “take responsibility ourselves for the risks we choose to take.” Armerding worries that “our litigious nature will weave a protective cocoon for us…but in exchange for that, we won’t know what it is to really live.” Noting how excitement and risk often go hand-in-hand, he asks, rhetorically: “Do we really think we can sue the risks out of life? Do we really want to?” article »

CA Town Facing Court Award That Could Force It to Dissolve
John Coté, San Francisco Chronicle, December 18, 2007

Half Moon Bay, CA, a town of about 12,000, was recently hit with a $36.8 million judgment, which amounts to more than three times its annual budget.  The lawsuit stems from a dispute between the town and the developer of a 24-acre property, bought for $1 million in 1993.  Part of the site became wetlands – the owner blamed the town’s negligent drainage policies in the lawsuit - making it unusable for development under state regulations.  If the town loses an appeal or can’t reach a settlement agreement, it could be forced to dissolve.  Appealing the decision will be difficult to begin with: the Half Moon Bay city council warns that finding the money to post an appeal bond could force the town to make “significant budget cuts” for “every municipal function. article » [found at Overlawyered.com]

It Dawned on Adults After WWII: 'You'll Shoot Your Eye Out!'
Cynthia Crossen, Wall Street Journal, December 3, 2007

Toy safety issues have been ubiquitous in the news lately, but according to Cynthia Crossen’s article in the Wall Street Journal, “for a long time, parents didn't focus much on playthings as a threat to their children.” She notes that it was only after World War II that “the number, complexity, and packaging of children’s toys soon outpaced the ability of many parents to make educated decisions about their safety." President Nixon passed the Toy Safety Act in 1969, and “by 1974, more than 1,500 toys had been banned by the newly established Consumer Product Safety Commission.” According to Crossen, the response to these safety efforts was not all positive. Some commentators thought “the regulations were going too far” by limiting consumer choice. Still others complained of the toy regulation movement’s ineffectiveness because it gave parents the idea that they didn’t have to monitor their children, and that “proud parents” would ignore age guidelines and let their children handle toys “much too old for them.” One federal safety official pointed out that “toys can never be designed or regulated with absolute safety,” a point the CPSC ironically proved in 1974 when “the commission recalled 80,000 of its own lapel buttons promoting toy safety. The buttons had paint with too much lead, sharp edges, and clips that could be broken off and swallowed.” article »

Related: It Was 'Safety First,' But Critics Worried Folks Were Going Soft
Cynthia Crossen, Wall Street Journal, September 17, 2007

Cynthia Crossen devoted a Wall Street Journal column to the rise of and backlash against the early 1900’s “safety first” movement.  “For both workers and travelers,” she writes, “early 20th century America was a treacherous land.”  But, as “more companies were dragged into court by injured workers” and more and more people were injured and killed on railroads, businessmen and politicians began “to promote defensive living at work and at home.”  Safety First chapters were founded nationwide, with the head of the Chicago chapter declaring: “‘No other movement in the history of this country has taken such a firm hold upon the people as the Safety First movement ….’”  “Then,” Crossen writes, “came the backlash.”  The “Safety First mentality,” some charged, “threaten[ed] to turn America into a nation of milksops.”  Albert W. Whitney of the National Bureau of Casualty and Surety Underwriters argued: “‘As a general statement of our attitude toward life, 'safety first' is not only grossly inadequate, but positively wrong, misleading and harmful …  Life must be lived as an adventure if it is to be worth carrying on.’”  Harvard University theologian Francis Greenwood Peabody concurred, writing: “‘What an undiscouraged and expectant person wants is not 'safety first' anymore than a sailor wants to lie safely in harbor ….’” article »

Now Letters to Santa Come with a Clause
Judy Peet, Newark Star-Ledger, November 30, 2007

This year, “St. Nick’s lawyered up” according to Judy Peet’s piece in the Newark Star-Ledger.  The Newark, NJ incarnation of Operation Santa, the U.S. Postal Service’s tradition of reading children’s letters to Santa and sending donated gifts to needy cases, has added bureaucratic hurdles in response to liability concerns. Donors used to be able to call or write in to request participation; now, they have to come to a branch, present photo ID, and sign an indemnity waiver. Donors are now solely responsible for wrapping and delivering gifts, services the post office used to provide free-of-charge.  Connie Chirichello, head of Newark’s Operation Santa, acknowledges her concerns “about the children, because, with so many changes, people may just decide to put their time and money in another charity.” Despite these concerns, and despite the fact that there are “no recorded lawsuits connected with the USPS Operation Santa and no known instances of foul play,” USPS regional spokesman George Flood states that “…in these litigious times, the Postal Service has to institute safeguards. …we can no longer afford to risk it.” As one major supporter of the program puts it, these rule changes “seem to be about business. What about the kids?” For that matter, what about the volunteers and donors whose desire to help needy children is treated as a liability? article »

Related: Santa Hit by Elf and Safety Killjoys
Aislinn Simpson, Telegraph.co.uk, December 3, 2007

Meanwhile, in the UK, “Father Christmas…is not exempt from the diktats of the health and safety police.”  Sleigh-riding Santas in traditional holiday parades are facing “tough rules” that took “the magic out of Christmas.”  One Santa was told that he “must be strapped into a full body harness in case he falls out of his sleigh as it is towed …at… five miles an hour.” A parade organizer was told to “raise a four-figure sum to cover the insurance costs.”  The town of Alnwick, ceding to liability concerns, made its parading Santa ride a bus instead of a sleigh because he was not covered by the council’s insurance.  As parade organizer Graham Luke lamented, “It is health and safety.  We have become Americanised.”  Santa riding down Main Street in a bus is bad; “American” coming to mean “overwhelmed by legal fear and risk aversion” is far worse. article »

If There’s Too Much Litigation, Blame Class Divisions, Not Class Actions
Adam Liptak, New York Times, November 24, 2007

In a New York Times review, Adam Liptak compares Thomas Geoghegan’s new book See You In Court to Common Good Chair Philip K. Howard’s 1996 bestseller The Death of Common Sense. Liptak suggests that, while Mr. Geoghegan’s book might position itself as a rebuttal, “for the most part he and Mr. Howard don’t really disagree about the problem.” He adds: “Both men would like to see a more modest legal system replace the black comedy of inefficiency and arbitrariness that passes for modern dispute resolution.” Liptak also notes that “Like Mr. Howard, Mr. Geoghegan bemoans the rise of tort claims, lawsuits over injuries that can give rise to enormous jury verdicts.”  Although Mr. Howard and Mr. Geoghegan might not always agree on the legal and social issues at the root of these problems, they share a common goal.  Mr Geoghegan echoes Mr. Howard when he writes that “[we] have to bring back predictability in the law.” article »

The Happiness Gap
David Brooks, New York Times, October 30, 2007

David Brooks of the New York Times writes that the 2008 election will be influenced by “the gap between [individual voters’] private optimism and their public gloom.”  He notes that a recent Pew study “found that 65 percent of Americans are satisfied over all with their own lives” but that they “are overwhelmingly pessimistic about their public institutions.”  In short, they believe that Washington is broken.  More evidence: “Sixty-two percent think that when government runs something, it is usually inefficient and wasteful” and more people today are “pessimistic about government’s ability to solve problems than they were in 1974 at the height of Watergate and the end of the Vietnam War.”  This “happiness gap,” Brooks explains, “creates a treacherous political vortex.”  While Americans are cynical and untrustworthy of government, they “are desperate for change” and “want the country’s political leaders to take bold action.”  article »

New Face of Vandalism?
Gersh Kuntzman, Brooklyn Paper, October 13, 2007

According to New York City’s Department of Sanitation, Natalie Shea is a vandal – and at risk of costing her parents $300 if she does not remove the “grafitti” she drew outside their Park Slope home.  This is because six-year-old Natalie drew on her parents’ stoop with sidewalk chalk and a neighbor complained.  Gersh Kuntzman of the Brooklyn Paper explains: “‘Since when is a kid’s chalk drawing ‘graffiti’?  Since the City Council passed local law 111 in 2005, which defined ‘graffiti’ as ‘any letter, word, name, number, symbol, slogan, message, drawing, picture, writing … that is drawn, painted, chiseled, scratched, or etched on a commercial building or residential building.’”  The fact that rain would easily wash this “graffiti” away did not enter into the Department of Sanitation’s decision to send Natalie’s parents a warning letter, according to agency spokeswoman Cathy Dawkins.  “‘The instrument used – whether it’s paint or chalk – does not matter ….’”  “‘This whole thing is ridiculous,’” Jen Pepperman, Natalie’s mother, argues.  “‘Admittedly, this drawing was not her best work – she usually sticks to cheerful scenes, not abstracts, frankly – but to send a warning letter like that is outrageous.’” article »

Environmental Bounty Hunters on Trail of Cash
Adam Liptak, New York Times, June 11, 2007

In 1986, California passed Proposition 65, a law which “requires manufacturers, retailers and others to tell people when they are exposed to certain carcinogens.”  Writing in the New York Times, Adam Liptak relates how, by encouraging private attorneys to enforce the law, the state “deputize[d]” an army of “bounty hunters.”  “These deputies,” he explains, “who get to keep a quarter of any penalties they recover for the state, carry briefcases rather than pistols, and their critics say their tactics amount to legalized extortion.”  He continues: “All it takes to win a settlement from a private company is a little research – to identify even a trace amount of a toxin in, say, office supplies or a parking lot – and some threatening legal boilerplate.  Extracting settlements in these cases, an appeals court judge wrote last year, is ‘absurdly easy.'’”  Since its enactment, the law has “generate[d] 100 to 150 settlements for a total of about $10 million every year.”  But, as Liptak explains: “The public often gains almost nothing from such litigations.  The businesses that settle are required to post notices … ‘telling people that things like dried paint may be slowly emitting lead molecules or that parking lots are places where there might be auto exhaust.’”  Edward G. Weil, an attorney in the state’s attorney general’s office – an office which “intends to bring some order to the situation” – relates that the suits oftentimes result in silly warnings.  “‘Spray paint has 10 warnings on it,’” he states.  “‘Is an 11th warning going to make a difference?’”  article »

Fear of Firing
Michael Orey, BusinessWeek, April 23, 2007

With “the categories of workers who enjoy special legal protection” steadily expanding, Michael Orey of BusinessWeek argues that “[i]t has never been easier for U.S. workers to go to court and allege that they've been sacked unfairly.”  The increase in protected groups coupled with the cost of having a case dismissed (a sum which can easily reach $100,000) – let alone the cost of taking one to trial ($300,000) – has, Orey continues, “[m]any companies … gripped by a fear of firing.”  “Terrified of lawsuits,” he explains, “they let unproductive employees linger, lay off coveted workers while retaining less valuable ones, and pay severance to screwups and even crooks in exchange for promises that they won't sue.”  Moreover, plaintiffs are increasingly “winning large sums not because a company discriminated against them, but because the company retaliated when they complained about the unproven mistreatment.”  Retaliation suits accounted for 30% of all claims filed with the Equal Employment Opportunity Commission in 2005 and 2006.  That percentage should remain steady – if not increase – after last year’s Supreme Court ruling which held “that improper retaliation can involve acts far short of firing or demoting someone” – “[s]o even exluding [sic] an employee from meetings, relocating his or her office, or other intangible slights could lead to liability.”  article »

We Protect Kids From Everything But Fear
Paula Spencer, Newsweek, April 2, 2007

Writing in Newsweek, Paula Spencer, a mother of four from North Carolina, relates how her parenting style – one where she allows her children to eat cookies, to walk home from school alone, and to spend their summer vacations relaxing – has made her “some kind of renegade.”  “Fear is the new fuel of the American mom,” she writes.  “If it's not fear of her child becoming obese, it's the fear of falling behind, missing out on a sports scholarship or winding up with a thin college-rejection envelope.  Apparently I’m not nervous enough.”  She wonders what our pioneer foremothers – and our own mothers – would think of requiring children to wear long sleeved, UV-protective swimsuits at the pool or hiring “summer tutors in order to ‘keep it fresh.’”  Parents' fears – over candy fundraisers, hand sanitizer usage, class schedules, etc. – “are as irrational as they are rampant,” Spencer argues.  “[Y]ou can't go around afraid of everything.  It's too exhausting!  No matter how careful you are, bad stuff happens (diaper rash, stitches, all your friends assigned to another class).  And it's seldom the end of the world.”  There is, she concludes, however, “one big, legitimate fear” that has escaped attention: “[W]hat's the effect of our collective paranoia on the kids?”  “Yes,” Spencer writes,” these very kids we want to be so self-sufficient, responsible, confident, happy and creative (not to mention not food-obsessed).  They're growing up thinking these weirdly weenie views are healthy and normal. …  I may be a rebel mom, but at least I'm not afraid of a chocolate-chip cookie.” article »

MISCELLANEOUS, continued »

Parks, Playgrounds, and Recreational Activities

Mother of 8-Year-Old Upset By Skiing Lawsuit
Andrea Lopez, CBS 4 (Denver, CO), December 27, 2007

Susan Swimm, the mother of an 8-year-old who is being sued after a collision on the ski slopes in Vail, CO, is pushing for clarity and consistency in Colorado’s skier liability laws.  According to CBS 4’s Andrea Lopez, Mrs. Swimm fears that “kids and their parents can be sued for any minor accident, and in some cases, as their children are learning to ski or snowboard.” The Colorado Skier Safety Act addresses liability issues involved in collisions like the one between Mrs. Swimm’s son Scott and David Pfahler, the plaintiff in the lawsuit, but she insists that the law “has too many gray areas,” particularly when it comes to accidents involving children.  Mrs. Swimm hopes to reform the law so children and adults are held to clear but different standards of responsibility on the slopes. article »

Related: Ski Accident Snowballs into a Public Dispute

Update: Easton, PA Overturns Sledding Ban
Edward Sieger, Express-Times (PA), December 13, 2007

A month after imposing a ban on sledding and other “related snow activity” in its public parks, common sense prevailed in Easton, PA.  At a city council meeting, Mayor Phil Mitman revoked the sledding ban and the $300 fine that went with it. Signs that informed of the ban are being replaced with signs that inform park-goers to sled “at their own risk.”  The Express-Times credits Easton resident Terrance Hand for spurring the change. He reminded the mayor of the need for the city to “provide recreation options for children and use a ‘common-sense approach’ in doing so.” It is encouraging to see citizens stand up for their community and speak out against unreasonable choices influenced by legal fear. Common Good applauds both Mr. Hand and Mayor Mitman for their efforts in acknowledging and fixing the problem, and just in time: Easton was expecting 5 to 9 inches of snow last weekend. article »

Related: See the original article » (found on pointoflaw.com) for more background on the ban

Editorial responses: Plenty of Reasons to Allow Sledding, Guns Are OK, But Let's Control Those Sleds

Fun May Be Next on the Banned List
Carol Stark, Joplin Globe (MO), December 7, 2007

Joplin, Missouri has joined a growing list of towns that no longer allow sledding in public parks. According to Carol Stark’s piece in the Joplin Globe, “[s]ledding has been banned at the request of Joplin’s insurance carrier,” following an earlier lawsuit stemming from a sledding accident occurring at Dover Hill Park. The local response has been largely negative.  A town resident, writing to Joplin’s city parks director, pointed out that “One of your job functions is to add to our recreational outlets, not do away with them.” Stark, echoing this point, notes that city officials are prioritizing liability concerns over public satisfaction: “Fear of litigation, and fear that your insurance carrier won’t cover you are real concerns for a city’s administration and its elected City Council. But, then again, so is getting re-elected.” Stark suggests that the city should work with residents to strike an appropriate balance of liability concerns and access, including city-supervised “sledding events” or putting up signs “telling parents and kids they sled at their own risk.” Stark expects a bleak future for Joplin’s recreational opportunities if risk aversion continues to outweigh quality-of-life issues, predicting that, “[if] we allow a litigious public to set Joplin’s standards…then piece by piece, we’ll see our public parks eroded to little more than a park bench.  [After all], a child could fall out of a swing. They could skin their knees on the tennis courts. They could get a splinter from the picnic tables.” article »

Child’s Play Has Become Anything But Simple
Patricia Cohen, New York Times, August 14, 2007

Writing in the New York Times, Patricia Cohen reports on “[t]he tension between how children spend their free time and how adults want them to spend it.”  “For children,” she writes, “play is easy.  You can do it anytime, anywhere, with anyone, and it’s fun.  For adults, play is hard.  They want to know if it’s safe for their kids, if it’s educational, if it promotes motor coordination, if it’s environmentally friendly, if it will look good on a preschool application.”  Cohen interviews Brown University history professor and author of Children at Play: An American History Howard P. Chudacoff, who argues: “‘Kids should have their own world, and parents are nuisances ….’”  In addition to increased parental involvement in play, Professor Chudacoff laments how play has changed due to the commercialization of toys and society’s increased aversion to risk.  Cohen writes: “Sitting on the edge of a slide in the Providence playground, Mr. Chudacoff said that he has two great-nieces who go to a nearby elementary school that doesn’t permit children in kindergarten through third grade to run, jump rope or throw balls during recess for fear of accidents.  ‘What do they want them to do?,’ he said, shaking his head, ‘stand around and buy drugs?’”  article »

The Rise of Nature Deficit Disorder
Stephen Scharper, Toronto Star, August 11, 2007

In a piece for the Toronto Star, Stephen Scharper relates how he experienced a sense of loss after learning that ponds he had fished in as a kid had been filled in and woods he had explored had been razed.  “I felt a generational tether had been severed,” he writes, “and grieved the fact the waters and woods that helped shape us in our youth were no longer there to help frame and contour the lives of our sons.”  This sense of loss is also captured by columnist and author Richard Louv, whose work Scharper discusses.  Louv explains that today’s children lack the intimate knowledge of nature that he and other children of his generation possessed because of several factors, “including development of rural spaces, parental safety concerns and liability restrictions on unsupervised play.”  Arguing that “North American society teaches youth ‘to avoid direct experience with nature,’” and that that “lesson is taught by schools, families, even outdoor education groups, and codified into community legal statues,” Louv writes: “‘"Our institutions, urban/suburban design, and cultural attitudes unconsciously associate nature with doom – while dissociating the outdoors from joy and solitude.’”  Scharper concludes his piece: “Louv's work is not all nostalgic lament.  Reflecting on [among other issues] … scientific research about the importance of exposing children to nature, he hopes not only his sons, but all generations, may experience a rebirth of wonder in nature."  article » 

Spirited Play Is Good for Boys and (Yes!) Girls
Caryl Rivers, Women's eNews, August 8, 2007

Boston University journalism professor and WeNews commentator Caryl Rivers commends the bestselling The Dangerous Books for Boys – a work which “argue[s] that boys need more freedom to take physical risks and test their spirit of adventure” – but contends that its message should apply as equally to girls.  She writes: “The appeal of the book is nostalgia.  It harks back to rural boyhoods of an earlier age, when boys played mainly outdoors, skipped stones into ponds, made their own bows and arrows and enacted heroic adventures.  In fact, the book takes me back to my own childhood, when the neighborhood kids used trash cans as shields for playing knights and galloped over the neighborhood pretending to be Western outlaws or lawmen.  My best girlfriend Beano and I had just as much fun joining in these adventures as the boys did.  Indeed, today, when kids spend too many hours indoors, and when school administrators shudder at any piece of playground equipment as a lawsuit in the making, the book offers a refreshing message. …  The problem, of course, is that the authors portray these activities as boy turf.”  “Who says adventure is just boy stuff?,” she wonders.  article »

Parents, Camp Operators Decry Court Ruling on Negligence
Tiffany Hsu, Los Angeles Times, July 18, 2007

Tiffany Hsu of the Los Angeles Times reports that both parents and day camp operators are decrying a California Supreme Court ruling that “allow[s] recreation providers to be sued for gross negligence even if parents or participants signed a liability waiver.”  The worry from parents is that “the ruling could drive up camp fees as providers try to cover potential legal expenses” – and both parties are concerned that “[t]he financial impact of suits on small camp operations … could drive some operations out of business.”  “‘Personally, I think this ruling’s wrong,’” Hsu quotes one parent as saying.  “‘Ours is such a litigious society, and it gets out of control.’”  “‘It's definitely a concern to us that all the children are safe,” states Pamela George, co-director of SPF Beach Camp in Santa Monica.  She adds: "‘That being said, it's also a public place.  If someone steps on a piece of glass on the beach, are we liable?’”  article »

Parents Need to Let Kids Out from 'House Arrest'
Tom Stienstra, San Francisco Chronicle, June 24, 2007

“In San Francisco, when was the last time you saw kids with grass stains on their jeans?,” Tom Stienstra rhetorically asks readers of his San Francisco Chronicle column on the growing disconnect between children and the outdoors.  Ninety percent of children in San Diego, he relates, do not know how to swim – and “bicycle sales are down 31 percent in the past five years.”  What’s responsible for this trend?  Stienstra interviews Richard Louv, author of Last Child in the Woods, who argues that, “[o]f the many factors, parents are most to blame.”  Stienstra writes: “[Louv] blames long hours in front of the television.  To some extent, he blames video games and iPods.  He blames the loss of neighborhood fields and the lack of free, easy-to-reach places for kids to catch fish.  But most of all, he blames parents and how they raise their children.”  “‘The underbelly of this issue is that parents are scared to death,’” Louv states.  "‘Parents are terrified that some stranger is going to take their kids at the corner.’”  And for this, he blames the national media.  After describing for Stienstra “how a child's outdoor adventures – or lack of them – can affect his or her development,” Louv relates his hope for the future: “‘We really do need a new civilization, and we need to build it with our young.  When you talk about it that way, you see their eyes light up.  We can turn this around.  It won't happen accidentally.  It must be intentional.’”  article »

In Praise of Skinned Knees and Grubby Faces
Conn Iggulden, Washington Post, June 24, 2007

Writing in the Washington Post, Conn Iggulden explains the impetus for and process of writing his worldwide bestseller The Dangerous Book for Boys.  Sounding Common Good themes, Iggulden relates that the book’s title “[is] about remembering a time when danger wasn't a dirty word.”  He continues: “It's safer to put a boy in front of a PlayStation for a while, but not in the long run.  The irony of making boys' lives too safe is that later they take worse risks on their own.  You only have to push a baby boy hard on a swing and see his face light up.  It's not learned behavior – he's hardwired to enjoy a little risk.”  Iggulden has been surprised by the reaction to the book.  “I thought I was the only one sick of non-competitive sports days and playgrounds where it's practically impossible to hurt yourself,” he states.  “It turned out that the pendulum is swinging back at last.”  He concludes his piece with a call to action: “We all care about our sons – scabby knees, competitive spirits and all.  It's about time we let our schools and governments know how much we care.  Let the pendulum swing.”  article »

Base Accusation
James Fanelli and Mike Scholl, New York Post, May 20, 2007

The New York Post reports that a Staten Island mom is “is suing a beloved veteran (Little League) coach for not teaching her son … how to slide properly.”  The woman’s son was injured in a baseball game three years ago while attempting to slide into second base.  She names the New Springville Little League and its umbrella organization, Little League Baseball and Softball, Inc., in the suit as well, claiming that they (along with the coach) failed to teach her son the “‘skills needed to avoid and/or minimize the risks of injury,’ specifically how to run bases and slide.”  The Post relates that “New Springville league President Luis Mojica expressed dismay that a lawsuit would target a program that introduces youngsters to the national pastime.”  "‘All we do is provide a place for kids to play,’” he states.  "‘We're a community service.’”  Little League spokesman Chris Downs emphasizes “the low number of Little League injuries.”  He relates that “less than 1 percent of injuries that occur require medical treatment at a hospital” – and that is with an average of 10,000 Little League games played each night.  article »

PARKS, PLAYGROUNDS, AND RECREATIONAL ACTIVITIES, continued »

Recess, Field Trips, and Other School Activities

School Recess Gets Gentler, and the Adults Are Dismayed
Alison Leigh Cowan, New York Times, December 14, 2007

According to Alison Cowan’s piece in the New York Times, “recess — long seen as a way for children to develop social competence, recharge after long lessons, and resist obesity — is being rethought and pared down.”  The latest school to follow this troubling trend is the Oakdale school in Montville, CT.  Principal Mark Johnson has “virtually banned” soccer, dodgeball, tag, Frisbee, and other “unstructured play.”  The sports that are still allowed on the playground have been stripped of their competitiveness: kickball can still be played by the older students, but there has to be parental supervision and the score can’t be kept.  Activities offered in lieu of free play include picking up litter, playing chess, and supervised walks around the school grounds.  Children’s play expert Joe Frost worries that this degree of structure and oversight is “terrible, ill-advised and damaging.”   He adds, “Children need to engage in games such as this in order to develop social skills, to learn to handle themselves, to avoid obesity, and to get the activities they need.”  Many parents of Oakdale students echoed this sentiment, worrying that by “coddling” their children the school “fails to prepare children for adulthood.”  The principal stands by his position despite the concerns of parents, experts like Dr. Frost, and organizations such as Cartoon Network, the Center for Disease Control, the National Parent Teacher Association, and the National Educational Association.  While Common Good acknowledges that it is Mr. Johnson’s place, as principal, to set school policy, we can only hope that he’ll listen to common sense and stop trying to overprotect children ‘for their own good’.  As Dr. Frost puts it, “It’s just difficult to imagine how a person in education could come up with such a bad idea.” article »

Related: A Nation of Wimps

Adult Supervision
Charles Sykes, Wall Street Journal, November 8, 2007

Writing in the Wall Street Journal, author Charles Sykes argues that the decision by some colleges to “require permits or permission slips for undergraduate pranks” is further evidence that America has succumbed to a culture of over protectiveness.  “This was perhaps inevitable,” he writes of the decision.  “First they came for dodgeball.  Then tag.  How long could something as spontaneous and fun as the prank escape?”  He notes what Common Good has long documented – schools’ banning of swings, merry-go-rounds, teeter-totters, and games involving “‘bodily contact’” – adding: “This makes sense to the sort of person who thinks children must at all costs be protected from the scrapes of life and insulated from the prospect of having to deal with social interactions or disappointment.  Childhood – or at least the fun part – is falling victim to a potent stew of psychobabble, litigation and over-wrought over protectiveness.”  article »

Reinventing Recess: Schools Try to Play It Safe
Karin Shaw Anderson, Dallas Morning News, October 13, 2007

Karin Shaw Anderson of the Dallas Morning News checks in on the state of recess in America’s schools.  Echoing Common Good’s findings on the issue, she writes: “The playground games and equipment that many parents fondly remember are disappearing.  Some schools have shortened recess in the name of academics and banned activities such as tag, Red Rover and king of the mountain as too dangerous.  Teeter-totters and merry-go-rounds are a thing of the past, too.  School officials say they're acting in the interest of safety.  But critics say the concerns are overblown – and even damaging to children.”  She quotes Dr. Joe L. Frost, a panelist at Common Good’s 2006 “Value of Play” forum, who states: “‘There seems to be a dearth of information about the value of play ….  The best playgrounds are not necessarily the playgrounds that have the biggest, prettiest or most expensive equipment.’” article »

Recess: Sliding into History Books?
Andy Gammill, Indianapolis Star, September 17, 2007

Andy Gammill surveys the state of recess in Indiana, finding that elementary school children “get by” on roughly 15 minutes of it a day.  “As schools try to squeeze in every minute for lessons that could help raise scores on standardized tests,” he writes, “educational researchers say recess continues on a slide begun decades ago.”  Yet, research shows that allowing children more time to play actually improves their ability to learn.  Ball State professor Eva Zygmunt explains: “‘The research is pretty clear that when kids do get recess they can come back to learning with increased focus and actually perform better ….  When they sit for long periods of time, they lose attention.’”  Value of Play forum panelist Anthony Pellegrini agrees, telling Gammill: “’Children, especially boys, are more attentive after recess than before recess ….  (Schools) want to boost achievement, and they see recess as a waste of time.  We've done well-conducted experiments where it has the opposite effect.’”  article »

Turning the Ride to School Into a Walk
Jane E. Brody, New York Times, September 11, 2007

“Forty years ago,” Jane Brody writes in the New York Times, “half of all students walked or bicycled to school.  Today, fewer than 15 percent travel on their own steam.  One-quarter take buses, and about 60 percent are transported in private automobiles ….”  This change, she explains, “was primarily motivated by parents’ safety concerns – a desire to protect their children from traffic hazards and predators.”  The tradeoff has been, however, that children have become more sedentary – and thus, more overweight “and at greater risk of developing hypertension, diabetes and heart disease.”  “The sedentary life also affects their behavior and the ability to learn.  …  [C]hildren who engage in moderate to vigorous physical activity show improvement in concentration, memory, learning, creativity and problem solving, as well as mood, for up to two hours after exercise.”  Another unintended consequence of this drive for safety has been that, as more children are being driven to school – “[p]arents who drive their children to school make up about a quarter of morning commuters” – traffic has become more congested, which has resulted in more accidents and greater endangerment to “the lives of children and the adults who drive them.”  Brody writes: “It has become a vicious cycle that must be broken, and soon.”  article »

Kids Lose Out on Tag's Teachings
David Harsanyi, Denver Post, September 3, 2007

Disapproving of the decision by Discovery Canyon Campus (Colorado Springs, CO) to ban tag, David Harsanyi of the Denver Post writes that, while averting risk is a “reasonable human reaction,” “[l]earning how to deal with risk … is just as important.”  He draws upon the views of Value of Play panelist and Psychology Today editor Hara Estroff Marano, who argues: “[Risk] is part of life – the greater part of life, actually. ...  The games of chase and tag serve an important purpose for kids.  Kids are playing out and enacting, in some way mimicking, survival strategies.  It is important for their development.’”  Harsanyi admits to being “a coddling father” who realizes that allowing one’s “children to deal with the vagaries of life or unpleasant emotional experiences is easier said than done.”  “Then again,” he adds, “there are big problems and small ones.  We all know the big ones.  The small ones surely begin with being ‘it’ in tag.”  article »

Child’s Play Has Become Anything But Simple
Patricia Cohen, New York Times, August 14, 2007

Writing in the New York Times, Patricia Cohen reports on “[t]he tension between how children spend their free time and how adults want them to spend it.”  “For children,” she writes, “play is easy.  You can do it anytime, anywhere, with anyone, and it’s fun.  For adults, play is hard.  They want to know if it’s safe for their kids, if it’s educational, if it promotes motor coordination, if it’s environmentally friendly, if it will look good on a preschool application.”  Cohen interviews Brown University history professor and author of Children at Play: An American History Howard P. Chudacoff, who argues: “‘Kids should have their own world, and parents are nuisances ….’”  In addition to increased parental involvement in play, Professor Chudacoff laments how play has changed due to the commercialization of toys and society’s increased aversion to risk.  Cohen writes: “Sitting on the edge of a slide in the Providence playground, Mr. Chudacoff said that he has two great-nieces who go to a nearby elementary school that doesn’t permit children in kindergarten through third grade to run, jump rope or throw balls during recess for fear of accidents.  ‘What do they want them to do?,’ he said, shaking his head, ‘stand around and buy drugs?’”  article »

No Time for Games? The Power of Play
Marianne Armshaw, Miami Herald, July 29, 2007

In an article on "the power of play," Miami Herald reporter Marianne Armshaw relates that – thanks in part to over-scheduling, the rise in organized sports, parental concerns about predators, and high-stakes testing – “America’s children enjoy less time for creative play than their parents' generation.”  “And that loss,” according to David Elkind, Tufts University’s professor emeritus of child psychology, “affects everything from academic performance to the development of social skill, creativity and independence.”  Miami-Dade elementary schools only offer their students 40 to 45 minutes of recess a week – “far below the 100 minutes per week minimum recommended by the National Parent Teacher Association.”  Armshaw discusses Common Good’s work in raising awareness about “vanishing playtime and the rise in child obesity,” relating Common Good Chair Philip K. Howard’s recommendation “that parents create play-friendly lives and fight schools trying to cut back on recess.” 

Students Hurt at School Can Sue Minneapolis District, State Supreme Court Rules
Shannon Prather, Pioneer Press (St. Paul, MN), May 31, 2007

The Minnesota Supreme Court has ruled that Minneapolis schools can no longer rely upon “a little-known 1969 law that grants schools immunity from liability if they can't buy insurance at a rate of $1.50 per student.”  Shannon Prather of the Pioneer Press explains that “[t]he immunity meant parents whose children get hurt on the playground or anywhere else at a Minneapolis public school wouldn't get very far if they sued to recoup medical bills.”  The issue before the court was whether the law was still in effect.  The case was initiated by the parents of two girls who ran into and injured one another in November 2001 “during a game of ’flashlight tag.’”  article »

Tag Banned at La Crosse Elementary School
Dan Simmons, La Crosse Tribune, April 28, 2007

Harry Spence Elementary School in La Crosse, Wisconsin has decided to enforce a rule banning tag and other “‘chase’ games” from the school’s playground.  The La Crosse Tribune relates that, while the school “declined to say what prompted the more stringent enforcement of the rule,” their decision “follow[s] a national trend against the game (of tag) and some others, such as dodgeball, that critics claim put children at too much risk for injury or social isolation.”  A 1994 report argues that “‘[e]limination games like Tag or Simon Says are essentially self-defeating, because the students who are least skilled and fit are usually the first to be caught, banished, punished and embarrassed, and then given almost no opportunity to improve.’”  Yet, while Harry Spence Elementary is just the latest of several area schools to eliminate tag, not all have followed suit.  Jerry Burns, the principal at Franklin Elementary School – and the district’s physical education director – still allows his students to play, explaining that “he doesn’t know of research to suggest tag is more dangerous than other playground games, and that banning it may actually backfire.”  “‘In a sense (banning it) is kind of futile,’” he says.  “‘Kids are going to do it anyway when you’re not looking.  Some things just come naturally to kids.’”  article »

Gavel to Gavel
Playtime Is Over
Tom Tracy, Bay Ridge Courier (Brooklyn, NY), March 15, 2007

The Bay Ridge Courier (Brooklyn, NY) relates that “[t]he family of an infant girl is suing the city as well as the Department of Education after their child fell off a jungle gym in a Fort Greene playground.”  The family’s attorneys “allege that the child’s injuries were caused by the ‘negligence, carelessness and recklessness’ of the city, Department of Education and the Beacon School Based Development Center, which they claim were all responsible for the maintenance and upkeep of the playground.”  The city declined to comment on the litigation.  article »

RECESS, FIELD TRIPS, AND OTHER SCHOOL ACTIVITIES, continued »

The Need for Reform

The Price of Loony Litigation
Ralph R. Reiland, Pittsburgh Tribune-Review, September 3, 2007

With the Bench Cozied Up to the Bar, the Lawyers Can’t Lose
Adam Liptak, New York Times, August 27, 2007

Adam Liptak reports on a speech given by Judge Dennis G. Jacobs of the Second Circuit in which he admits that he and his colleagues have a bias ”to rule in favor of anything that protects and empowers lawyers.”  “Once you start thinking about it, the examples are everywhere,” Liptak continues.  “But Judge Jacobs’s main point is a deeper one.  Judges favor complexity and legalism over efficient solutions, and they have no appreciation for what economists call transaction costs. ….  Other professions look for elegant solutions.  It is the rare engineer, software designer or plumber who chooses an elaborate fix when a simple one will do.  The legal system, by contrast, insists on years of discovery, motion practice, hearings, trials and appeals that culminate in obscure rulings providing no guidance to the next litigant.”  In a decision last month – “in a tangled lawsuit about something a college newspaper published in 1997” – Judge Jacobs dissented from the majority view that the case involved “important First Amendment principles.”  “He was, he said, incredulous that ‘after years of litigation over $2, the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it.’  Writing with the kind of verve and sense of proportion entirely absent in most legal work, Judge Jacobs concluded that ‘this is not a case that should occupy the mind of a person who has anything consequential to do.’”  article »

Wearing Down the Judicial System With a Pair of Pants
Marc Fisher, Washington Post, June 14, 2007

Beacon Hill Roll Call; Volunteers at State Parks (S 786)
Bob Katzen, Malden Observer, May 7, 2007

With a unanimous 38-0 vote, the Massachusetts Senate sent a bill to the House that would “protect[ ] volunteers at state parks from liability for ‘ordinary negligence,’ but hold[ ] them liable for ‘intentional, willful, wanton or reckless misconduct that results in injury or damage to another person.’”  Supporters of the legislation hope “that eliminating liability for ordinary negligence would encourage more volunteers at state parks and also reduce the cost of insurance for groups that generate volunteers at state parks.”  article »

THE NEED FOR REFORM, continued »

Other

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