Barely Legally

Confessions of a Moot Court Bailiff

Slippery Slopes

Time Magazine has some pretty amazing hand-wringing about the hand-wringing going on in the Midwest over a potential source of lawsuits. The article is called: Some Cities to Limit Sledding Over Liability Concerns, and there’s no two ways about it. This is going to be one of those face-palm articles. Let’s take a peek:

Faced with the potential bill from sledding injuries, some cities have opted to close hills rather than risk large liability claims. No one tracks how many cities have banned or limited sledding, but the list grows every year. One of the latest is in Dubuque, Iowa, where the City Council is moving ahead with a plan to ban sledding in all but two of its 50 parks.

“We have all kinds of parks that have hills on them,” said Marie Ware, Dubuque’s leisure services manager. “We can’t manage the risk at all of those places.”

Look, if you live in a town where there are so many idiots that juries give out judgments for this stuff, you have bigger problems. Your neighbors probably call 911 when Burger King screws up their order. You may consider wearing a helmet when crossing the street, as it’s unlikely that other drivers can discern which is the “gas” and “brake” pedal, or even what either of those words mean.

Okay. We’re getting away from the point. Hold your nose. We’re going back in.

In Omaha, the city banned sledding at a popular hill as a test one winter after losing a lawsuit, but decided to allow it again after most people ignored the restriction.

Instead, the city has posted signs warning of sledding risks and workers at the site of the failed ban put pads around posts and hay bales around trees. Mumgaard said courts in Nebraska have decided cities must protect people, even if they make poor choices.

Buh… pruh… what? Okay, let’s find the point we agree on. Yeah, just because you make a “poor choice,” it does not create an open season on you for predatory actors, including the government. Fine.

When You Assume

So, wait, do they not have concepts like assumption of risk in Nebraska? It’s pretty straight forward; for example, people playing a sport have assumed the risk of injury due to accidents. Baseball players can’t sue each other for negligently hitting each other with the ball, because if they didn’t want to risk it, they wouldn’t have played. Simple, right?

Sledding isn’t really a sport, but the same principle applies. In New York, if the victim knew about the defendant’s negligence – which created the danger – and still (voluntarily) exposed themselves to that danger, the victim assumed the risk that something bad would happen. Depending on whether Nebraska or Iowa is a pure or modified comparative negligence jurisdiction, this means a victim can reduce or forfeit the amount of money they win in a lawsuit.

The upshot: these cities have a really really strong assumption of risk defense to all of these lawsuits. This isn’t news to any of their lawyers. And yet:

[Dubuque city council members] pointed to judgments in sledding lawsuits in the past decade, such as a $2 million judgment against Omaha, Nebraska, after a 5-year-old girl was paralyzed when she hit a tree and a $2.75 million payment when a man in Sioux City, Iowa, slid into a sign and injured his spinal cord. […]

By banning sledding on certain slopes or posting signs warning people to sled at their own risk, cities lessen their liability if someone is seriously hurt, but they’re still more vulnerable to lawsuits than if they had adopted an outright ban.

(Emphasis added. That man probably didn’t hit a sign banning sledding. Maybe.)

Seriously, if your last jury literally gave out millions of dollars because the city failed to protect a grown-ass man from sledding into a sign, I don’t know that “just” banning sledding will do anything.

Look at it this way, cities of Midwestern America. You’re already being sued because you neglected to make sledding safe enough. It’s just a matter of time before someone sues you because you didn’t do a good enough job of banning sledding, and they hurt themselves sledding in violation of the law.

Let’s go back to that assumption of risk doctrine. Victims have reasonably assumed the risk of their actions if they knew about about the dangerous condition created by defendants’ negligence, but voluntarily proceeded anyway. What is a sign realistically going to tell you about a snow-covered hill that you wouldn’t know from looking at the snow-covered hill? “You could hit this sign if you sled down this hill. You could hit someone else. You could hit a bump and fall off your sled. It’s a hill. Gravity is a harsh mistress, bro.” I’m struggling to figure this one out.

A Case Study

So let’s work through this together. Although… spoilers, guys. I skipped ahead a litle bit and this is just not a happy story.

Take that last case from the Time article. I filed a public records request for some of the documents in the docket, and it is simply heartbreaking. In 2012, Sioux City, Iowa paid $2.75 million to a man who sued the city after he had a sledding accident in a public park in 2008. He broke four vertabrae and was left in a wheelchair with steel rods in his back after the accident. We won’t use his name here, but it’s not exactly hard to find. We can call him Dave.

Dave is a real person. He has kids to feed and millions of dollars in medical and physical therapy bills to pay. He’s served his country for decades in the National Guard; his fellow servicemen actually donated their own paid sick leave to Dave during his recovery. You can’t ask for a better metaphor for the kindness and goodness in human beings than that last sentence.

Now, I’m a firm believer in poking fun at… just about everything. But sometimes really horrible things happen to people who didn’t deserve anything but a safe and healthy and happy life. Sometimes life just taps a random person on the shoulder and hands them a whole lemon tree full of awful. That could be you or me, tomorrow, and there’s nothing we can do about it. That scares the living daylights out of me, and the only way I know how to cope is with humor.

But there’s really nothing to mock about this accident. Dave didn’t deserve what happened to him in 2008 and he definitely doesn’t deserve some sarcastic attorney making fun of him on a comedy law blog in 2015. No matter how many panic attacks that attorney has when he thinks about all the gruesome accidents that could happen to him someday. Cough.

Okay no really the case

Right. The lawsuit. The gist is that Dave had an inner tube, and they make such lousy sleds that he hit a sign spine-first after sliding down a hill in a park. Actually, he was at the park with his two small children, and had left his phone in his truck. He laid paralyzed in the snow with four broken vertebrae and his two crying children until a passerby called 911 for him. Dave claims the city was negligent in having a sign where they knew that people would be sledding.

The petition alleges negligence for having a sign in a dangerous spot, but it also says that the city should have erected a “safety barrier” to keep sledders from hitting the sign. We can confidently infer that the safety barrier would be much squishier than the signpost was.

Perhaps the most eyebrow-raising thing in the petition is that the sign he hit is specifically described as a No Parking sign. I’m no urban planner, but aren’t those usually placed on the side of a road, where cars would otherwise park? The complaint describes the safety barrier as something that would keep sledders from entering the “roadway at the bottom of the hill.”

So, to sum this up: he hit the sign because there was no barrier there to keep him from hitting the sign, which itself kept him from sliding into the road.

One More Thing

The final tidbit from the case files worth noting: Sioux City was not the only defendant in this case. The city used some utterly mundane legal jujitsu called an impleader to drag two other defendants into the lawsuit. Essentially, the city said “hey plaintiff, you forgot a couple of co-defendants for us to split the judgment with, in case we lose.” The city impleaded Wal-Mart, which sold the plaintiff the inner tube, and a company named Aqua Leisure Industries, the manufacturer of the inner tube.

I had an ah-ha moment when I read that last bit; visions of Wal-Mart negligently stocking swimming pool inner tubes in the same aisle as sleds, and Aqua Leisure being sued for negligently failing to note that their inflatable pool toys were not suitable for sledding. But alas. It turns out that Aqua Leisure literally sells snow tubes. That would have been too tidy.

After the petition was filed, the various parties spent two years filing various motions and countermotions and exentions and so on. Ultimately, Sioux City and the plaintiff settled. The city paid roughly $500k, its insurance paid about $2m, and “a third party” paid the remaining money. It’s unclear whether Wal-Mart or Aqua Leisure was the third party.

So, yeah. This guy gets into a freak accident and racks up millions of dollars in medical bills and lost wages while his family needs feeding. Then after filing a lawsuit, he racks up two years of legal fees before getting just about enough money to get out of debt and maybe make it to the end of the decade. Maybe. Depends on how his rehab went, and if he ever got well enough to get back to work. (i.e. does he still need a wheelchair to get around?)

What Does It Mean

Personal injury lawsuits are how our society has elected to provide a safety net for people who have met with horrible accidents. It leads to absurd headlines like “million dollar verdict for sledding accident.”

That’s basically it. I started this whole essay with my usual aim of “mock everything because it’s a scary world and poking fun gives me the illusion of control over some atomic fraction of it” but that’s it.

Yeah, you have the world of Medicaid disability, but, uh, it’s a disaster. Seriously. the less you read about it, the better you’ll sleep.

Here’s a video of people wiping out on sleds in France. Let’s try not to read into this.