On Liability

Brainerd High School

A couple weeks ago I shared this photo of the redone entrance to my local high school. The school district has taken out all of the shrubbery, grass and sidewalk and simply paved it over. I suspected at the time that it was a work in progress, but I’ve come to realize that – no – this is their desired final condition.

Why? I shared the photo on Facebook and the conversation has been ongoing. The most common belief put forward was that it is now easier to maintain. To quote our friend Steve Mouzon, maintenance free generally means not worth maintaining. That is definitely the case here. This is just sad, despotic way to say “welcome” to our students, faculty and visitors. It says something really sad about us that we don’t seem bothered by it.

This weekend, however, the thread continued and a new justification was put forward, one of my old favorites: liability. Here’s the direct quote:

Can you imagine how liable, in this day and age, the school would be if a bus loading zone were not kept clear and safe?

I have seen all kinds of ridiculous things done in the name of reducing “liability”, almost all done without any real understanding of what makes a local government liable for something. We must be excessively wide and unsafe streets or we are liable when someone gets hurt. We must put up a ridiculous number of signs because, even if there are too many to read at 45 mph, we don’t want to be liable if someone does something stupid. And on and on and on….

Yes, the United States is an excessively litigious society, but that doesn’t mean we need to be stupid. For all of you Strong Towns advocates out there that continuously run into the liability argument, I have one modest suggestion: call the insurance provider. If it is a school district, take the current plan and the proposed Strong Towns alternative and send them both to the district’s insurance company to see if they have any problems. I’ve done this many times: they never do.

Cities have insurance carriers as well. The next time you have an alternative plan that is opposed by the public safety people or the engineer for liability reasons, demand that the alternatives be sent to the only group that can really say with any credibility how much liability there will be: the city’s insurance carrier. And not the local broker – that dude has a decent chance of being a fool who wants to asphalt the entire entrance as well – but the actual underwriter. Chances are really good that they won’t have a problem with what you want to do.

Here’s what they are likely to tell you: so long as you consider safety implications in your design and, even better, where you document how you have balanced safety with all the other concerns a government entity must deal with, your actions are going to be defensible.

Note that I said “defensible” and not “arguable”. There is no approach that is going to stop people from bringing lawsuits against you. If you are a government with perceived deep pockets, you will have lawsuits brought against you from time to time. Liability is the degree to which you will be found to be in the wrong. What the insurance companies have always told me is, so long as you are considering safety as one of the criteria in your design and approach (and it’s even better when you somehow document that you are), you are not acting negligent. Two people may disagree on what is safer, but so long as you have taken the time to weigh options and consider the implications, defending against a charge of recklessness is going to be rather easy.

A couple years ago I sat through many meetings working with a city to change their road standards. The engineer had gotten the city to adopt the state’s standards and was therefore building highways for every cul-de-sac and country road. The public safety and maintenance people were solidly on the engineer’s side, making change even more difficult. The problem bringing the issue to the forefront was that the city was going broke. They couldn’t afford this over-engineering.

I showed up with a new set of standards. The engineer, police chief, fire chief and maintenance staff screamed “liability” and, when the elected officials and citizens on the committee squirmed, assumed the conversation was over. We called the city’s insurance carrier and then sent them a copy of the stuff I had put together. The insurance people loved it.

The next time someone mindlessly shouts “liability” as a way to defend the status quo, don’t argue. Call their bluff.