ABSTRACT
Almost every day there is a media story or two about the supposed impossibility of doing anything in the outdoors without serious legal liability. Many of these are just rural or urban myths which make the headlines before fading into some common sense settlement or solution well away from newspaper coverage. Where there is a consideration of negligent as opposed to intentional acts, then liability in these cases is anchored in the concept of a ‘duty of care’, and this is the first hurdle to consider in any civil claim for personal injuries. When is this duty owed? If a legal precedent exists, then that statement of the legal duty will be the primary focus. Where none exists, then argument will be on the basis of analogy from similar or comparable cases. An illustration of whether a duty of care exists can be seen in the recent American case of Stroumbakis v The Town of Greenwich, and it suggests that some of the ‘reality’ of litigation is the very fear of litigation itself. That anxiety can lead to a defensive mindset which can have a dampening effect on all sorts of activities, as it leads potential defendants to take draconian action to avoid what they perceive as potential liability by abandoning them altogether. As a result of this case in 2004, the township of Greenwich, Connecticut, one of the very wealthiest communities in the USA, announced that they were considering banning winter sledding on the slopes of the appropriately named Sleigh Hill, which had been used for many years for just such an outdoor activity. Dr Nicholas Stroumbakis, and his son aged four were going for ‘one last run’ in January 2000, when their sledge struck a drainage ditch at the base of the hill. The doctor suffered multiple fractures of his back and leg that put him in hospital for twelve days, including five in intensive care. It was seven months before he could return full-time to his medical practice. He sued for negligence, claiming the local Council had created a public nuisance by failing to maintain the ditch. A jury agreed, awarding him damages of $6.3 million, one of the largest negligence awards against a municipality in the USA, especially in a case in which nobody died.1 The case is currently on appeal, but the town’s selectmen were immediately considering a ban on ‘not just sledding, but ice-skating and things like that that are done on town property’.2 Many issues in the current debate on legal liability can be illustrated by this case. First, the reality is that the Council would only be paying $500,000 of the
1 Greenwich Times (25 April 2005), quoting an attorney James Tallberg who was of the view that ‘Greenwich is Gold Coast Fairfield County, and I think juries think there are deep pockets there. Generally, you don’t see numbers that high simply because there aren’t pockets deep enough to pay an award that big.’ 2 ‘Stung by suit, Greenwich weighs ban on sledding’, New York Times (26 April 2004). See
award, just eight per cent of the total, with the remainder covered by the insurance company Genesis. Secondly, the jury were clearly convinced of the straightforward need to warn of the ditch in an environment where the very name of the hill suggested a winter pastime. Thirdly, Dr Stroumbakis was clearly incapacitated, and as a leading cancer and urology specialist was unavailable for his patients.3 One irony is that Dr Stroumbakis is one of many doctors in the USA who have been campaigning for a cap on jury awards in medical malpractice cases, and his photograph even appeared in local newspapers showing him marching with other doctors to the state capitol in protest at the level of awards against doctors.4 Another irony was that he himself had requested an award of $500,000, but the Town Hall refused to accept this settlement offer and fought the case, neatly illustrating the ‘forensic lottery’ of tort cases. Another factor is that Dr Stroumbakis’s attorney would have been operating under contingency fee arrangements, normally about 33 per cent, but sometimes running to 50 per cent, and would therefore have an incentive as well as a duty to get the highest possible award. Next, part of the defence was to suggest that Dr Stroumbakis ‘contributed’ to his injuries, as his plastic toboggan could not be steered, the part of the hill that ended in the drainage culvert was the steepest and not usually used by other sledders, and although Sleigh Hill had been used for sledding for many years, it was not ‘officially sanctioned’ for such use. Indeed, the jury lowered the award because of these factors. However, as with all legal cases, the evidence was crucial to establish liability. Documents from the Parks and Recreation Department showed a site inspection which recommended filling in the ‘hole’, and that the culvert was covered by a piece of plywood held down by rocks, concealed by snow at the time and unmarked. This was in conspicuous contrast to the Council’s main defence that the sledding field was ‘undisturbed natural land’ without a ‘man-made feature’ and that any maintenance was a ‘discretionary act’ entitling them to qualified immunity.5 Probably compounding the air of civic incompetence was the fact that no written report or photographs had been taken by a police officer, employed by Greenwich, as part of a required procedure at the scene of any accident on town property. The local newspaper suggests that one lesson to be drawn by ‘municipalities, particularly affluent ones like Greenwich’ is that the town needs ‘better risk management in order to avoid liability suits’.6
