We’re overdue for a National Conference on Children, Nature and the Law, organized by the legal profession with a little help from insurance companies, educators, health care folks, policy-makers, and others. This conference is still a fiction, but somebody needs to step to the plate.
As a powerful deterrent to natural play, fear of liability ranks right behind perceived stranger danger. Parents are afraid to let their kids build a tree house in the backyard. School administrators are afraid to create natural play places (even though they tend to produce fewer injuries than playgrounds with typical play structures). A few years ago, The Fort Lauderdale (Fla.) Sun-Sentinel reported that Broward County schools had erected “no running” signs at 137 elementary schools, as one of several steps to cut down on injuries and lawsuits.
Playground merry-go-rounds and swings were already history. As I wrote in Last Child in the Woods, we’re seeing the virtual criminalization of natural play. In some cities, young people who try to recreate their parents’ childhoods may face misdemeanor charges or see their parents sued.
Most residential communities built in the past three or four decades are controlled by covenants and restrictions, and private governments — community associations. Too many of them criminalize natural play. One woman told me her community association banned chalk drawing on the sidewalks. Just try to put up a basketball hoop in some of these neighborhoods, let alone let the kids build a fort or tree house in the field beyond the cul de sac. Adult officials are likely tol tear down that fort or tree house within days. Other stringent restrictions on children’s outdoor play spring from our efforts to protect nature from human population pressures. In my city, it is illegal to “injure, destroy, cut or remove any tree … [or] plant … growing in any city-owned park … without written permission from the city manager.” But what exactly constitutes “to injure?” Does a child seriously injure a tree by climbing it? Some think so.
So because of fear of litigation, and pressure from parents themselves, Girl Scouts can no longer climb trees at Girl Scout camp. Kids all over the country are hearing a double message from the adult world: Get off the couch, go outside, but oh, by the way, we don’t really want you doing anything out there, other than organized sports.
This isn’t an exaggeration. Parents know this. Teachers know it. But our institutions and legal profession haven’t received the memo. That’s why we need a national conference. The legal profession, including consumer attorneys, would find such a conference to be in their interest. Depending on which study one chooses to believe, in the United States, the public’s urge to sue may be rising, holding steady or even falling. Uncertainty about such statistics is aggravated by the fact that most lawsuits are settled out of court and are poorly tracked. And no one keeps track of the number of threatened lawsuits — which may have more impact on public behavior than judges and juries. In fact, there are consumer attorneys who attribute ulterior motives to some public officials who raise the specter of potential lawsuits, which may be easier and cheaper than investing public funds in, say, new playgrounds or lifeguards. Whatever the truth, perception rules.
“Legal fear has infected the culture,” argues Philip K. Howard, author of “The Death of Common Sense” and “The Collapse of the Common Good.” Howard is founder of Common Good, a bipartisan coalition with advisory board members ranging from conservative to liberal. Howard wants to help restore reliability to law — to come up with ways to determine acceptable or healthy levels of risk. “Polls and focus groups show that educators will do almost anything to avoid the unpleasantness of legal hearings, says Howard. Confronting this perception will require action on several fronts: the introduction of comparative risk as a legal and social standard, new applications of insurance, and the design and legal protection of public play areas.
This approach transcends the current definition of tort reform, which focuses almost entirely on capping the size of awards in lawsuits. True, some kind of tort reform is needed, but sometimes it takes a huge settlement to change the behavior of a powerful offender. And capping damages or blocking access to the courts does little to reduce the number of lawsuits. Nor does the traditional approach to tort reform serve to educate the public about the nature of risk; some are beneficial — small risks taken early (and the natural world is good place to take those risks) can prepare children to avoid more onerous risks later in life. Want a real risk? Check out the rise in child obesity. Pediatricians now worry that the current sedentary generation of children will be the first in our history to have a lower life expectancy than their parents’ generation.
So, what might be on the agenda of a national conference?
— Common Good is calling upon judges and legislatures to create clearer standards on who can sue for what. Among other proposed changes, Howard calls for the creation of public risk commissions that would examine areas of our lives that have been radically changed, “such as our enjoyment of outdoors and children’s play.”
— A nationwide review of laws governing private land and recreation, especially involving children. This review should be done with the goal of protecting both the child’s safety and the child’s right to play in natural settings. As part of this conversation, community associations should review their covenants to decide where they stand on the criminalization of nature play. Public governments should do the same. This is not only a question of the letter of the law, but also the spirit.
— A review of legal barriers to nature experience, and equity of access to nature, depending on the economic and ethnic makeup of neighborhoods.
— How to balance legitimate concern about the destruction of nature with the need to develop, through personal experience, a future constituency for conservation. One long-term remedy: rather than lift restrictions on truly endangered habitat, preserve or create more natural places to play—including natural parks, and the vacant lots and ravines and backyards of our own neighborhoods.
— How to support the creation of new kinds of play spaces where experience in nature can be encouraged, with a reasonable amount of risk, and supervised by play supervisors who know how to let kids be kids. (As long as cities continue to overdevelop housing tracts and under-develop parks and other sites for natural play, our regional parks and beaches will be crushed by demand, necessitating ever more stringent enforcement.)
— A survey of legislation or regulation already on the books that can protect natural play. For example, Good Samaritan laws, or laws that in some states provide liability protection for ranchers or farmers when hunters or anglers come on their land. Which of these protections can be replicated or adapted for natural play?
— Can community or environmental organizations offer group insurance policies similar to ones that exist for, say, skateboard parks? Do current homeowner insurance policies typically offer enough coverage? How can schools and parents buy extra liability insurance to give them the peace of mind necessary to allow kids to build that fort or treehouse?
— How are other countries facing this issue? (Great Britain is arguably moving faster toward this goal than the United States, particularly by their approach to comparative risk, an idea that is either muted or nonexistent in our judicial system, where juries tend to perceive all risk as bad. “There is an important question of freedom at stake, said one British magistrate. Does the law require that all trees be cut down, because some youth may climb them and fall?”)
While we wait for legal reform, Bay Area environmental attorney Brian Schmidt has an idea that just might help. To liberate natural play, he suggests the creation of what he calls a Leave No Child Inside Legal Defense Fund, a foundation that would pay the legal defense costs of select institutions and individuals who encourage children to go outdoors, but are then hit with frivolous lawsuits. If nothing else, such a fund would send a public message that natural play is still valued.
Sending that message would be a primary goal of a National Conference on Children, Nature and the Law, as proposed by C&NN. Such a conference would produce policy recommendations, but it should also publish a free online pamphlet for parents, educators, policy-makers and others, offering practical suggestions for how to start making changes now.
On March 5, he gave the keynote address at the 23rd annual conference for the National Association of Environmental Law Societies, hosted by the Loyola University New Orleans College of Law and the Loyola Environmental Law Society.