FEATURE ARTICLE

Better to be safe than sued--set policy regarding transportation to
and from your agency's recreation programs

BY ROBERT W. ROLEK, ESQ. AND DARCY L. PROCTOR, ESQ.

As counsel for many park districts, our firm has increasingly addressed legal issues concerning employee use of personal vehicles for work-related purposes. This issue often arises when park district employees use their own vehicles to transport park program participants to and from various activities. While this arrangement appears harmless enough, it can expose both the employee and the park district to tort liability and lawsuits without the benefit of insurance protection. Park districts should be aware of the pitfalls of employees providing transportation, so that they can make informed decisions and implement policies protecting their interests.

What? No Insurance Coverage?

Imagine your employee driving your program participants to the swimming pool or to afternoon activities. Another vehicle crashes into them and a child is seriously injured. A civil lawsuit is filed on the child's behalf against the park district and its employee. The other driver, of course, has no license, no insurance and no money. He is judgment proof. So, the question arises: Who pays? It may surprise you to know that it may be you.

Even if the employee maintains liability coverage for his or her vehicle, the employee's automobile insurance policy most likely will contain a provision excluding coverage for any accident occurring while the vehicle is being used for a business purpose. Moreover, the park district probably will not have insurance on the automobile because it is owned by the employee. This potentially could leave the park district without any insurance protection. The park district's general liability insurer may step in and cover injuries and damage, but could also refuse to do so because the employee was using his or her own automobile for which there is no coverage.

Loss of Tort Immunity Protections

Now, imagine that your park district employee runs a stop sign while transporting program participants in his or her personal vehicle and causes an accident that results in serious injuries to a third party. Is the park district protected from liability for the employee's negligence under any of the provisions of the Illinois Tort Immunity Act (745 ILCS § 10/1 -101, et seq.), commonly asserted by park districts in tort cases? The short answer is no.

Section 10/3-106 of the Act only applies to injuries that occur on or in connection with the use of recreational property. An employees personal vehicle would not be considered "recreational property" and, therefore, this immunity is lost. Likewise, the immunity found in Section 10/3-108 of the Act, which generally protects park districts and their employees for negligent supervision, also requires that their injury occur on or as a result of the use of park district property. Under the above scenario, this immunity would not apply.

Increased Risk for Claims of Employee Misconduct

Employees who use their own vehicles to transport program participants increase the park district's exposure to potential claims of employee misconduct. For the most part, program participants who need transporting are young children and, if the employee is using his or her own vehicle, the group will be small, with no other adult supervisor chaperoning the trip. This places the children being transported in a potentially unprotected position, in which misconduct by the employee may occur. Moreover, even if the employee is innocent of any wrongful action, it leaves him or her open to false accusations by a child. It becomes a he-said-she-said situation, where the truth often is difficult to determine.

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The legal and public relations implications can be harmful to both the park district and the employee. If there is a hint of impropriety (real or alleged) a legal suit, or the threat thereof, surely will follow. A civil action against the park district can create unwanted publicity and diminished participation in park district programs. More importantly, the employee may never recover from the negative publicity or the damage to his or her reputation.

Clearly, this example is an extreme one. An employee who transports children with his or her own vehicle may never face such a situation. However, in todays litigious society, why take the risk? An innocent action on the part of the park district employee can be misconstrued by a minor and embroil all parties in expensive and time-consuming litigation. Park districts can protect themselves and their employees from such allegations by using large vans or buses to transport their program participants, requiring several adult supervisors in each vehicle during the transportation process. With such high stakes, a park district simply cannot afford to allow its employees to use their own vehicles.

Take a Proactive Approach

So, what can you do? Be proactive! Don't wait until you are a player in one of the above-described scenarios to take action. Investigate! Find out who is transporting the kids in your park programs and what vehicles are being used. At the very least, prohibit employees from using their own vehicles to transport program participants. This prohibition should be placed in writing and should, preferably, be contained in your employee manual. In order to be effective, you must also enforce this prohibition.

You also can avoid these pitfalls by hiring a private transportation service to transport your park participants. This service would act as an independent contractor and be directly responsible for any injuries or accidents that occur during the transportation process. If the park district opts to hire such a service, it should ensure that the proper insurance is obtained, and that the park district is named as an additional insured on the service's liability insurance policy.

If hiring a private transportation service is not a viable option, the park district should consider purchasing its own vans or buses to transport program participants. This alternative will not solve all the problems discussed in this article, but may prove to be the most pragmatic choice. If the park district purchases its own vans or buses, it can ensure that proper liability coverage is maintained. I can also ensure proper care, maintenance and servicing of these vehicles. If the park district elects to use its own vehicles, it should ensure that all vehicles contain at least two adult park district employees when they are used to transport park participants.

With these matters in mind, park districts should assess their transportation programs and policies. Awareness of these legal pitfalls can help park districts avoid negative publicity, lawsuits and loss of tort immunity protections. With a few well thought-out changes, park districts can ensure smooth running, legally sound and safe transportation programs.

ROBERT W. ROLEK, ESQ. and DARCY L. PROCTOR, ESQ. are partners at the law firm of Ancel, Glink, Diamond, Bush, DiCianni & Rolek, P.C. Mr. Rolek specializes in the representation of park districts and Ms. Proctor specializes in the litigation defense of governments entities. See www.ancelglink.com.

The authors wish to acknowledge Christina J. Cloutier, an associate with the firm, for her assistance in drafting this article.

Vandalism Down 25% in Highland Park During the first year of implementation of the Eagle Eyesm Neighborhood Park Watch Program According to officials from the Park District of Highland Park, residents living near its parks want to keep the parks safe and have been calling in and reporting suspicious activities, resulting in less vandalism than in previous years. "We felt this is due to aspects of the Eagle Eyesm program, such as making the public more aware of watching their neighborhood parks, getting community organizations involved, and displaying extra signage in the parks," says Larry Amidei, safety coordinator for the Park District of Highland Park. For more information about the Eagle Eyesm Neighborhood Park Watch Program, see www.ILparks.org/eagleeye.htm or call the Illinois Association of Park Districts at 217/523-4554.

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