More Sledding

We have a nice little discussion going on the blogs about sledding on Flag Hill here in town. First, GF Firefly posted, then I posted, then Free Thought responded to us, Firefly responded again, and then Free Thought ("FT") edited his post. My turn.

First, since we are discussing notions of liability for negligence, I need to make a disclosure. I am a lawyer, and most of my practice involves doing defense work. In other words, if you have an insurance policy, and someone sues you alleging you did something wrong, your insurance company hires me to defend you. Under Montana Law, you are my only client even though the insurance companies pay the bills. (As an aside, I think that many lawyers who do plaintiff's work suspect that defense lawyers' true allegiance lies with the insurance companies who pay our bills rather than the insured people. I, for one, can tell you that I take my duties to my insured clients very seriously and, in fact, the insurance companies I work with typically emphasize my obligations to their insureds.) If FT thinks he needs to disclose any preconceived biases, he is certainly free to do so.

In his post, FT argues that sledding is a somewhat inherently unsafe activity. A valid point, as well as the point that "untrained observer might not recognize the potential harm" in sledding. So, are we talking about banning sledding? No, we are talking about allocating the costs of the inevitable accident. (Obviously, though, in the case of Flag Hill the allocations resulted in banning the activity in at least one location.)

FT then goes on to argue that by allowing sledding on Flag Hill, the City would be somehow representing to parents that it is a safe place to sled, despite what FT contends is knowledge to the contrary acquired by the prior injuries that occurred on Flag Hill.

Here is the problem: Flag Hill is a hill, nothing more nothing less. The City did not create it, it simply owns it. The City made a reasoned judgment that placing drift fence with hay bales would be safer for users than to simply allow people to careen into the railroad tracks. The City is probably right. But, according to FT, even though it is safer than it was, someone got hurt. Therefore, it is perfectly reasonable to allocate the financial responsibility for the injury to the City, thus eliminating sledding on Flag Hill.

His analysis, though, does not require that the City do anything. Because even without the hay bales, someone could get hurt sledding into the railroad tracks and, again, since the City had "superior knowledge," the City is liable. Therefore, no sledding on Flag Hill.

FT misses a couple points. First, we should consider the seriousness of the alleged injury, as well as the likelihood of injury because, you see, there is a 'cost' associated with closing the hill. Everyone who would otherwise sled on Flag Hill, but now cannot, loses a little something in the equation. If one person suffers a broken leg for every million 'slides,' maybe as a society we should accept sledding as a reasonable activity. We have. So, why then does it make sense that we, collectively, should bear the expense of an injury rather than the one in a million? It doesn't?

Second, FT's assertion of "superior knowledge" might make for a persuasive closing argument but it is, frankly, rubbish. Walk around Flag Hill and ask anyone (even the kids) whether someone can be hurt by sledding headlong into an immovable object. Do you think anyone will answer "no?" I don't.

No, in fact, what will be happening is they will say "Sure, someone can get hurt ramming into those haybales. But that won't happen to me...." In other words, they are aware of the risk, do an informal 'calculation' comparing the risk of injury to the fun of sledding, and then decide the risk is not such that they want to avoid it. In other words, they assume the risk.

A couple other points he makes are worthy of comment. First, he says:

I know insurance companies pretty well. I think I understand them. They have vast information and resources regarding risk, and how juries might view cases. They are very practical. Unless there was some consideration that a jury, drawn from the local population, would find that the City shared some substantial fault in a kid getting hurt, they would not settle the case.

He leaves out economic considerations. In other words, it costs them money to defend the case even if they win. Those costs can run into the tens of thousands of dollars. That's why they pay money to settle even meritless claims. He goes on to say:

Likewise, they would not put pressure on the City to stop sledding if there was not a risk of continued claims. Premiums are based on claims and risk of more claims. It gets pretty expensive to pay for the same type of claim over and over if the City kept allowing the claims to arise by letting kids get hurt.

This is not necessarily true. I have experience with insurance companies who have made a calculated effort to try certain types of cases and, in my experience, when the companies win the cases it reduces these claims.

No one really knows what a jury would do with a sledding case, but lets think it through. While it might not discourage the claimants, a series of unsuccessful sledding trials would discourage their vehicle, the plaintiff's lawyers. If they saw 2-3 Flag Hill trials end up with zero verdicts, or allocating significant negligence to the claimants (or their parents) you would find they would be far less likely to bring these claims.

Fewer claims equals a sledding hill. And the kid who hurts himself by flying into a hay bale can look to himself, or his parents, to get his bills paid.

Finally, as an unrelated aside, isn't it amazing that we can't have sledding on Flag Hill, but the City actually created a dangerous skatepark?