A couple of weeks ago my backyard was a safety Nazi’s nightmare and a personal injury lawyer’s dream. Against all modern rules of safe parenting, I had six kids on my trampoline simultaneously. SIX! Ralph Nader would have filled his breeches.
But that is not all, oh, no, that is not all. The kids were in swimwear. I had placed an oscillating sprinkler under the trampoline. Not only was I endangering the safety of six children, I was wasting water as well. As the streams of irrigation water jetted through the trampoline mat, a mixed-sex group of children ranging from five to ten years of age ran, jumped, dove, and wallowed on the slippery surface, bumping, jostling, and rolling over each other in the offing.
Then to top it off, I turned on the sprinkler system in the yard. Soon children were leaping from the trampoline onto the lawn, running across the slick turf, climbing up the wet swing set ladder, and sliding lickety-split down the slide, damaging the wet lawn at the bottom. They then leaped back onto the trampoline for more water wallowing before repeating the circuit. Next they were throwing balls at each other in some kind of dodge ball game.
Dangerous? You bet. Over the space of an hour there were three split lips, a nosebleed, and some newly sustained bruises. We escaped any serious injury. But there were also gales of laughter and cacophonies of gleeful screams. It was 98° when it started and the kids didn’t stop until the sun was low in the sky and shadows were advancing across the yard. I then shooed the visitors away and put my own kids into a warm bathtub.
Philip K. Howard, the chairman of Common Good, says in this WSJ op-ed that we’ve gone overboard in trying to ensure child safety — and mainly trying to keep from being sued. He’s not asking that we abandon worthy safety efforts; he is merely calling for “A little common sense ….”
Howard cites studies showing that risk and unstructured play are important physical and psychological elements of child development. Besides, he writes, “Risk is fun, at least the moderate risks that were common in prior generations.” But he also says we’re “headed in the wrong direction.”
“The harmful effects of our national safety obsession” Howard says, “ripple outward into society.” He cites climbing rates of childhood obesity. Part of the reason the average kid spends six hours in front of an electronic screen every day is that playgrounds are so safe that they have “nothing left … that would attract the interest of a child over the age of four.” Everything that has even moderate levels of risk is verboten!
“Scrapes and bruises” writes Howard “are how children learn their limits, and the need to take personal responsibility.” As we work to erode every activity that might produce physical boo-boos, we inadvertently encourage other types of high risk behavior that will produce far more undesirable outcomes than the occasional trip to the urgent care center.
Howard’s organization, Common Good, is dedicated to “developing practical solutions to restore reliability to our legal system and minimize the impact of legal fear in American life.” When you see the kind of kingly palaces some of our ambulance chasing lawyers live in (see Utah lawyer Keith Barton’s former abode) and you realize that these mansions have been built by suing and taking money from people and institutions in the name of safety, you know there’s something wrong.
Don’t get me wrong. I believe it’s important to take sensible actions to reduce risk of unnecessary injury. But I also believe that kids (and even adults) need opportunities to engage in physical activities that include risk appropriate to their age and ability. And believe me, I practice what I preach.
It's also important to make sure that in our eagerness to decrease the number of frivolous lawsuits, we don't discourage citizens and courts from pursuing cases with merit.
Most of the time, judges will dismiss frivolous cases. They already have that authority. Often the courts are the only venue for injured parties to gain redress and we should not close that door because some lawyers try to abuse it.
Even frivolous lawsuits cost a lot of money, even if they are eventually thrown out. That's part of the reason that we have become a pro-reactive society. Many of our actions are goverend by the fear of lawsuit.
I wonder if there ought to be an intermediary step that could be employed before formal litigation, such as arbitration. It would be good if at least some issues could be worked out in a less contentious, lower cost forum.
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