The Florida Legislature's response to skateboarders and skaters: skating on thin concrete. (City, County and Local Government Law).

They fly through the air with the greatest of ease and far too often land with a bone-crushing, vertebrae-jarring crunch. They are inline skaters and skateboarders ("skaters"), and they have become the bane of public sector attorneys and risk managers in numbers that seem to be growing exponentially. The preponderant challenge for a public entity's attorney and staff in terms of controlling, if you will, the activities of skaters is determining in a definitive manner the extent of an entity's exposure. Ironically, the noticeable lack of liability claims emanating from skating activities only serves to exacerbate this dilemma.

The Florida Legislature Responds

In response to the growing phenomenon that has become skating in its various forms, the Florida Legislature enacted F.S. [section] 316.0085, entitled, "Skateboarding; inline skating; freestyle bicycling; definitions; liability." (1) The purpose of this section is to encourage governmental owners or lessees of property to make land available to the public for skateboarding, inline skating, and freestyle bicycling.

The legislature acknowledged that the lack of public skating areas has been caused in large part by the potential exposure to liability from personal injury lawsuits, as well as the prohibitive costs of insurance. (2) While F.S. [section] 768.28 provides for a partial wavier of sovereign immunity for actions in tort filed against the State of Florida and its political subdivisions in the amount of $100,000 for any one claim or judgment and no more that $200,000 per occurrence (3), the concern remains that the cumulative effect of such lawsuits could put a stranglehold on an entity's self-insured retentions. It is important to note, however, that this legislation may not be deemed to constitute a waiver of sovereign immunity, regardless of whether the entity carries an excess insurance policy designed to augment self-insured retentions, or insurance coverage separate and distinct from self-insured retentions. (4)

At first blush, a plain reading of the statute seems to imply that neither the governmental entity, nor its employees may be held liable for injuries sustained by persons who engage in skateboarding, inline skating, and freestyle bicycling, provided the activity takes place in an area designated for the activity in question. The statutory language is illusory and can prove to be a trap for the unwary public sector attorney who may be lured into a false sense of security due to the presence of a designated activity area. Plaintiffs' counsel are quick to point out that any limits on a public entity's liability quickly disappear if any of the following can be proven by a preponderance of the evidence: 1) the entity failed to guard against or warn of a dangerous condition that a participant does not and cannot reasonably be expected to have noticed; 2) any acts of gross negligence by the entity or any of its employees considered to be the proximate cause of the injury; or 3) the entity failed to obtain written consent from the parents of children under 17 years of age before authorizing same to participate in skating activities. (5)

The legislation defines as negligence the activities of individuals who fail to: 1) act within the limits of his or her ability, as well as the design and purpose of the equipment used; 2) maintain control of his or her person and equipment used; and 3) refrain from acting in any manner which may cause or contribute to death or injury of himself, herself, and other persons. (6) With all due respect to the drafters of this legislation, it appears they are a bit too optimistic, especially when it comes to attempting to impute liability to individuals who are accused of acting "in any manner which may cause or contribute to death or injury of himself or herself, or other persons." (7) Clearly, one of the allures of the sport for some young people is to engage in death-defying stunts and antics.

As you might imagine, proponents of skating will assert with conviction that their sport is a relatively safe one. This assertion has been challenged, however, by the findings of the American Academy of Pediatrics, which recently released a report concluding that skating-related mishaps sent over 50,000 people to the emergency room last year, with over 1,500 requiring hospitalization. (8) I am sure it comes as no surprise that the face, ankles, and wrists sustain the brunt of the injuries sustained.

Assumption of Risk

Clearly, adults who engage in skating activities are presumed to be cognizant of the risks inherent in the "sport" and, as such, the defense of "assumption of risk" is the initial response to claims arising out of such activities. Unfortunately, the mass of skaters are under the age of 18, prompting courts across the land to rule that unemancipated children cannot be expected to assume risk in a manner akin to an adult's assumption, due to the infirmity of age and maturity of judgment. (9) This is where Florida's law almost seems contradictory. Specifically, while the entity can be held liable for failing to obtain written consent from the parents of children under 17 years of age before authorizing same to participate in skating activities, latter portions of the statute read that "any person ... irrespective of age" assumes the known and unknown inherent risks in skating activities. (10)

The Case for Skateboard Parks

It is no mystery that many public entities have adopted the adage that, "if you can't beat 'em, lead 'em," as evidenced by the construction of skateboard parks, or the setting aside of designated skating areas. Many entities across Florida and the United States have elected to construct skateboarding parks. Some are taking innovative steps to reduce their liability exposure by: 1) ensuring that the park has no artificial lighting, thereby encouraging only day-time use; 2) fencing in the park and closing it at dusk; 3) posting clear and concise sets of rules in multiple locations throughout the park that serve to issue a series of warnings, suggestions, and safety equipment requirements; and 4) ensuring the park is regularly patrolled by police. (11)

Staff members employed by entities who elect to create skating parks assert that careful and thoughtful construction of the facility, proper maintenance and documentation thereof, together with the posting of appropriate signage, constitutes the prudent management of the risk.

The Case Against Skateboard Parks

As you might imagine, there exists a substantial number of public sector attorneys and risk managers who are opposed to the construction of skateboard parks. The general consensus among those opposed to such parks is that skateboard parks are costly to build, maintain, and insure. Those entities that lack the funds to purchase one of the countless commercially available skateboard/in-line skate ramps or jumps are denied the opportunity to tap into the manufacturers' products liability insurance.

Regardless of who or how the park is constructed, many risk managers have opined that they encourage, rather than alleviate, risk since parks do little to reduce the unsafe or hazardous conditions associated with the operation of a skateboard/ in-line skating facility. Such parks require that the entity's personnel conduct daily, documented safety inspections, which is a burdensome proposition for many short-staffed entities. Further, telling most skateboarders that they should don an array of protective gear and never ride in the street or attempt complicated tricks will, in all probability, fall upon deaf ears.

At a recent roundtable discussion in Polk County attended by public sector attorneys and risk managers, the following concerns were raised that, according to the Public Risk Management Association, are not unique to Polk County or Florida for that matter. The primary issues debated were:

* In terms Of waivers, who will secure the consent from the parent and what procedure will be implemented to prove that the adult is a legal guardian or parent of the child?

* Who will draft the consent form and will the form include the acknowledgment that the child has been cleared medically to participate in such activity?

* Who will supervise the activity?

* Who will regulate the hours of the activity and prepare appropriate notices and hours of operation?

* Who has the expertise to inspect skateboarding rinks for hidden physical hazards or conditions that might not be recognizable to the participant?

* Who manufactures and distributes skating rinks and what type of written warranty accompanies the product?

* Has the product been altered in any way by the entity, thereby negating the effectiveness of the manufacturer's product liability coverage? (12)

Conclusion

It is abundantly clear that there does not appear to be a consensus of opinion as how to best accommodate skaters, or whether they should be accommodated at all. As with any inherently dangerous activity that has caught the fancy of the general citizenry, public entities are compelled to be proactive in their quest to strike a balance between the provision of recreational activities to the public and protecting the governmental entity from liability claims, as well as protecting public property such as curbs, railings, etc. Despite legislative efforts to address this matter by enacting F.S. [section] 316.0085, this law, like all regulatory enactments, is not a panacea for, nor a shield against, the potential liability claims facing public entities that design and construct skating facilities.

(1) FLA. STAT. [section] 316.0085 (1999).

(2) Id.

(3) FLA. STAT. [section] 768.28 (1999) provides for a partial wavier of sovereign immunity for actions in tort filed against the State of Florida and its political subdivisions. Absent a claims bill, the aforementioned entities may only pay $100,000 for any one claim or judgment and no more than $200,000 per occurrence.

(4) FLA. STAT. [section] 316.0085 (1999).

(5) FLA. STAT. [subsections] 316.0085(5)(a)--(C).

(6) FLA. STAT. [subsections] 316.0085(7)(b)(1)--(3).

(7) Id.

(8) Fletcher, Cities Try to Alleviate Skate Park Liabilities, BUSINESS INSURANCE (May 13, 2002).

(9) Id.

(10) FLA. STAT. [section] 316.0085(7)(a).

(11) Joy, Managing Skateboard Risks, PUBLIC RISK MAGAZINE, May/June 2000.

(12) During the course of a roundtable discussion comprised of public sector attorneys and risk managers in Polk County, Florida, the general consensus of those in attendance was that special activity parks do not, in and of them- * selves, serve to reduce the frequency and severity of liability claims asserted against public entities.

Joseph G. Jarret is an assistant Polk County attorney concentrating in the areas of land use and planning. He is a former U.S. Army combat arms officer Mr. Jarret received his J.D. from Stetson, his masters in public administration from Central Michigan University, his bachelors from Troy State, and a postgraduate certificate in public management from the University of South Florida. He is a certified mediator and arbitrator.

This column is submitted on behalf of the City, County and Local Government Law Section, Thomas G. Pelham, chair, and Jewel W. Cole, editor.