Playing Smart changelabsolutions.org | kaboom.org 60 Most states fall somewhere in between these two ends of the spectrum in terms of the level of immunity afforded to public schools and government agencies.92 Figuring out exactly when governmental immunity applies can be complicated, and it depends on the facts of a given situation, state law, and the court’s interpretation. Schools and other governmental joint use partners should contact their attorney to figure out if they are protected in a given situation. In Sherida Jones’ case, if the school district were protected by immunity, the family could not get any compensation from the school. A slight change in the facts might alter our expectations about immunity. For example, what if it turned out that the branch that caused Sherida’s bike accident came from a dead tree on the school grounds, and the school had repeatedly failed to respond to parents’ complaints that the tree presented a hazard? If the school were protected by immunity even in that situation, a child injured by a branch from the dead tree would not be able to get compensation from the school. It’s clear why state legislatures struggle to delineate the situations in which immunity should and should not apply. Recreational User Statutes Recreational user statutes are intended to encourage landowners to open their property for public use. If a state has a strong recreational user statute that applies to schools and to the activity at hand, it may shield a school from liability in the event that someone is injured during recreational use. This protection is sometimes structured as a form of immunity and sometimes as a limitation on the duty that the landowner owes to recreational users (the first element of the tort of negligence outlined earlier in this section). Not all states have recreational user statutes. And in some states, like Hawaii, the courts have found that the statute is not applicable to school districts.93 Several states (Arkansas,94 Texas,95 and Wisconsin,96 to name a few) have recreational user statutes that are likely to provide schools with protections. Specifics vary by state, including the language in the statute regarding the type of land (e.g., rural, undeveloped), the definition of what kind of recreational activities are covered, and exceptions to the rule. Whether recreational user statutes are applicable to schools and can potentially limit schools’ liability depends on several factors, including how the court interprets the statute and applies case law. Schools should contact their lawyer to figure out if they are protected by recreational use immunity. If Sherida Jones’ accident had taken place on a weekend, when she was riding her bike on school grounds for fun, the school might be protected under the state’s recreational user statute. The school’s attorney would figure out whether the state had such a statute and whether it applied in the situation at hand. Employee Liability Governmental immunity may not extend to all employees working for a school or other joint use partner. Employee liability is an issue distinct from governmental immunity, and an analysis of employee liability in this context is beyond the scope of this toolkit. Schools should consult with their attorney for more information.
RkJQdWJsaXNoZXIy NTkzMzk=