Playing Smart changelabsolutions.org | kaboom.org 61 Limits on Damages Some states protect school districts and government agencies from large claims by limiting the amount of tort damages a defendant can be made to pay. These limits are usually imposed by statute. So, for example, if a child broke both his legs in an accident on school property and his family won a lawsuit against the school, the family’s attorney might show that he had $400,000 in medical bills. If the state’s statute capped the school’s liability at $75,000, the school could only be made to pay $75,000. Many states place caps on damages. North Dakota, in capping liability at $250,000 per plaintiff,97 presents a fairly typical example. In states like Nebraska, where the statute caps liability at $1 million per person,98 the high limits may not be very helpful as far as schools are concerned. But in other states, these caps may significantly ease schools’ liability exposure. Oklahoma, for example, has an extremely low damage limit of $25,000 per claimant.99 In addition to compensatory damages – money awarded to offset the costs of the actual damage – plaintiffs are sometimes entitled to punitive damages, which are intended to punish a defendant for egregious and blameworthy conduct. These are very rarely assessed,100 and many states cap or prohibit punitive damage awards against school districts and other public agencies. Other Protections Joint use agreements represent a negotiation over how to share the costs and risks associated with increased use of facilities. Insurance, indemnity agreements, and risk management practices are all tools that joint use partners can use to allocate and manage these risks and costs. In this section and the next, we will use a hypothetical scenario (in “Paradise City”) to help illustrate how these protections work and how advocates and partners can use them in establishing a joint use agreement. Paradise City is a densely populated, lower-income city in great need of recreational facilities. Paradise City High School, part of Paradise City School District, has a track, football field, and baseball field, although they are in poor condition due to wear and tear and badly need work. The swimming pool is inoperable due to lack of maintenance. Because the school district cannot afford to maintain its facilities and because it has concerns about liability, the school district has a policy of locking its gates to control unauthorized entry. But people often hop the fence to play pickup games on weekends. The weekend users do not have access to restrooms. State Law to Limit Liability? Recently, some states have sought to pass new legislation specifically giving school districts greater immunity around recreational use. Too often, however, these legislative efforts rely on broad, “one-size-fits-all” provisions that may not be in the best interests of a community. Expanding school district immunity through legislation can lead to unintended but significant drawbacks, including creating a disincentive for schools to properly maintain their facilities, increasing liability exposure for those who may be least able to manage it, and discouraging the use of school facilities by community members who lack the proper insurance. Before taking a position on legislation aimed at reducing or eliminating school district liability, it’s important to consider the existing legal landscape.
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