Liability Concerns and Shared Use of

School Recreational Facilities in

Underserved Communities
John O. Spengler, JD, PhD, Daniel P. Connaughton, EdD, Jason E. Maddock, PhD

Background: In underserved communities, schools can provide the physical structure and facilities
for informal and formal recreation as well as after-school, weekend, and summer programming. The
importance of community access to schools is acknowledged by authoritative groups; however, fear
of liability is believed to be a key barrier to community access.

Purpose: The purpose of this study was to investigate perceptions of liability risk and associated
issues among school administrators in underserved communities.

Methods: A national survey of school administrators in underserved communities (n⫽360, re-

sponse rate of 21%) was conducted in 2009 and analyzed in 2010. Liability perceptions in the context
of community access were assessed through descriptive statistics.

Results: The majority of respondents (82.2%) indicated concern for liability should someone be
injured on school property after hours while participating in a recreational activity. Among those that
did not allow community access, 91% were somewhat to very concerned about liability and 86%
believed that stronger legislation was needed to better protect schools from liability for after-hours
recreational use. Among those who claimed familiarity with a state law that offered them limited
liability protection, nearly three fourths were nevertheless concerned about liability.

Conclusions: Liability concerns are prevalent among this group of school administrators, particu-
larly if they had been involved in prior litigation, and even if they indicated they were aware of laws
that provide liability protection where use occurs after hours. Reducing these concerns will be
important if schools are to become locations for recreational programs that promote physical activity
outside of regular school hours.
(Am J Prev Med 2011;41(4):415– 420) © 2011 American Journal of Preventive Medicine

Introduction organizations to establish joint use of facilities agree-

ments allowing playing fıelds, playgrounds, and recre-

R
egular physical activity is important to optimal
health.1 Children in underserved communities,
however, often lack access to safe, free or low-
cost, and convenient recreation and sport facilities,
thereby limiting their opportunities to be physically ac-
tive.2–5 Authoritative groups6 –10 recommend increased
access and shared use of school recreational facilities as
a means to increase opportunities for physical activity.
The IOM,11 for example, recommends that local gov-
ernments “collaborate with school districts and other
From the Department of Tourism, Recreation, and Sport Management,
University of Florida (Spengler, Connaughton), Gainesville, Florida; and
the Offıce of Public Health Studies, University of Hawaii at Manoa (Mad-
dock), Honolulu, Hawaii
Address correspondence to: John O. Spengler, JD, PhD, Department of
Tourism, Recreation and Sport Management, PO Box 118208, University of
Florida, Gainesville FL 32611. E-mail: spengler@hhp.ufl.edu.
0749-3797/$17.00
doi: 10.1016/j.amepre.2011.06.031
ation centers to be used by community residents when
schools are closed; and if necessary, adopt regulatory
and legislative policies to address liability issues that
might block implementation.”
Public schools often have recreational facilities condu-
cive to physical activity.12,13 Schools often provide the
physical structure and facilities for informal and formal
recreation as well as after-school, weekend, and summer
programming,14 and access to school recreational facili-
ties may increase the amount of physical activity within a
community.15 Evidence suggests, however, a continued
reluctance among a number of schools to allow commu-
nity use of sport and recreational facilities. A recent
study13 found that the unsupervised use of school recre-
ational facilities after hours mainly remained unchanged
from 2000 to 2006 (increasing only from 66.6% to 66.7%).
The weighted percentage for all types of supervised use of

© 2011 American Journal of Preventive Medicine • Published by Elsevier Inc. Am J Prev Med 2011;41(4):415– 420 415
416 Spengler et al / Am J Prev Med 2011;41(4):415– 420
school sport and recreational facilities increased only
slightly as well.13
One reason for the lack of change may be the role that
liability risk plays in community-access decision making.
The current study addresses perceptions of liability risk
among school administrators in underserved communi-
ties. Some legal scholars16,17 suggest that liability risks for
schools are exaggerated and that this is attributable in
part to broad-based media coverage and campaigns,
long-term public relations efforts, and larger efforts by
business interests to overhaul the tort system generally.
Additionally, some experts believe that actual liability
risks do not justify the denial of recreational access to
school property after hours.16 There is limited empirical
evidence on actual liability in school settings relevant to
recreation and sport participation, and after-hours use.
A review17 of published case law (n⫽212) relevant to
student-initiated negligence claims in public schools
(Grades K–12) from 1995 to 2005 found that schools were
successful in defending against negligence lawsuits in
almost two thirds of all cases. Of cases involving sports
activities, and where the school was held liable, the negli-
gent acts of coaches and the negligent maintenance of
premises accounted for the majority of cases.17
Another study18 analyzed personal injury claims
against schools (n⫽455) through one data source (Jury
Verdict Research) that were tried or settled between 1996
and 2002. The study found that two thirds of cases that
either went to trial, or had a settlement, resulted in a
school paying an award for damages. Approximately 60%
of cases involved injuries in playtime or recess (24.1%);
physical education (20.3%); or extracurricular sports
(15.2%).18 Only 2.2% of the cases resulted from the com-
munity use of school property.18
Legal scholars have noted, however, that “irrespective
of the statistical likelihood of someone actually being
sued, the perception of the threat remains and may be
more important than the reality.”19 Early public access
studies20,21 found that for landowners, both public and
private, the fear of a lawsuit arising from injuries to rec-
reational users of their property was a primary concern.
Studies in the school setting relevant to after-hours use,
although limited in geographic scope, have found fear of
liability to be a recurring theme. For example, a state
survey22 of California school administrators found that
88% of school board members identifıed safety or liability
as the primary perceived barrier to opening schools to the
public beyond normal school hours. In a study23 con-
ducted in four separate U.S. communities, school admin-
istrators were surveyed about opening their sport and
recreational facilities to the public after normal hours.
Key perceived barriers found in this study23 were safety,
insurance, and liability issues. No national studies have
been conducted that have examined perceptions of liabil-
ity risk in the context of community access to school
recreational and sport facilities after hours in under-
served communities.
Methods
Procedures
In July 2009, a sample of 1714 public elementary, middle, and high
schools in 48 states was selected randomly from a list of schools
provided by the National Center for Education Statistics. After
receiving IRB approval, data were collected in November and De-
cember 2009. To be eligible for the study, schools had to have more
than 40% of students on free and reduced-price lunch status and
more than 50% of students of racial/ethnic minority status. Forty-
eight states had schools within their state that met the selection
criteria. Schools were selected proportional to the number of eligi-
ble schools in each state. One research participant was surveyed per
school. School principals were contacted initially but they could
designate another staff person to complete the survey. The princi-
pal of each school was sent an introductory e-mail that included an
informed consent form, the purpose of the survey, and a link to the
online survey instrument. Two reminder e-mails were sent to non-
responders at 1-week intervals.
Questionnaire
The questionnaire contained 32 items that assessed (1) school and
community characteristics (school classifıcation, grade levels
served, size of student body, socioeconomic and ethnic composi-
tion of the surrounding community); (2) community access and
wellness policy; (3) facilities available for community use and types
of usage; (4) perceived opportunities and barriers to community
use decisions; (5) liability issues; and (6) joint use issues. The
instrument was developed utilizing survey items from prior studies
(SHPPS), the relevant literature, and was reviewed by a Delphi
panel of experts. On recommendation from the expert panel, only
minor wording changes for clarity purposes were made to the
original instrument. The fınal instrument was composed of closed-
option and Likert-type scale (5-point) items. Frequencies and
cross-tabulations were calculated. All analyses were conducted
with SPSS, version 18.0.
Participants
The surveys were completed by school personnel at 360 eligible
schools (21%) from 46 states. Personnel at 338 schools (18%)
refused to participate (26 respondent refusals via e-mail, eight
opt-outs, 304 refusals based on school district policy or need for
district approval), 55 schools (3%) failed to complete the survey,
and principals at 264 schools (15%) could not be reached because of
bounced-back e-mail attempts. Personnel at 697 schools (41%) did
not respond for reasons unknown. Based on key sample selection
variables (race/ethnicity of students and percentage of students
receiving free or reduced-price lunch), there were no major demo-
graphic differences between those who completed the survey and
those who did not. Respondents held the jobs of principal (n⫽350,
93%); assistant principals; school director; teacher; school nurse; or
school social worker. The majority of respondents were adminis-
trators of public schools (n⫽357, 99%) in low-income communi-
ties (n⫽352, 96%). Most schools were located in primarily African-
www.ajpmonline.org
 Spengler et al / Am J Prev Med 2011;41(4):415– 420
American (35%) and Hispanic (32%) communities, with other
schools located in primarily Caucasian (20%), Asian/Pacifıc Is-
lander (4%), and Native American (4%) communities.
Results
Community Use of School Recreational
Facilities
Sixty-nine percent (n⫽249) of respondents reported
their school recreational facilities being open to the pub-
lic after hours for either informal or supervised use. Over-
all, 82.2% (n⫽264) of respondents stated they were some-
what to very concerned about liability should someone be
injured while participating in recreational or sport activ-
ities while on school property outside of regular school
hours. Ninety-one percent (n⫽91) of respondents who
did not open any of their school’s sport or recreational
facilities to the community for use outside of regular
school hours were somewhat to very concerned about
liability should someone be injured while participating in
recreational or sport activities while on school property
outside of regular school hours. Additionally, among those
respondents who do not open their facilities for community
use, 85.7% believed that stronger legislation was needed to
better protect schools from liability (Table 1).
Familiarity with Legislation Limiting Liability
Fewer than half (n⫽132, 41%) of respondents were famil-
iar with a law in their state that provides public schools
with protections from liability when someone participat-
ing in a sport or recreational activity is injured on school
property outside of regular school hours. Of those who
reported familiarity with their current state law, nearly
three fourths were nevertheless concerned about liability
417
for after-hours use, with approximately the same percent-
age (74.1%) indicating that they believed that stronger
legislation was needed to better protect schools from
liability claims. Of those without familiarity with their
current state law, most (88.5%) believed that stronger
legislation was needed (Table 2).
Prior Legal Claims
Of those responding that they had a liability claim
brought against them within the past 5 years resulting
from a person injured while engaging in a recreational
activity on school property outside of regular school
hours (n⫽33, 10.5%), 94% believed that stronger legisla-
tion was needed to better protect schools from liability
claims. Of those who had not had a liability claim brought
against them in the past 5 years, 81% still felt that stronger
legislation was needed (Table 3).
Formal Shared Use of School Recreational
Facilities
Among those who reported having a formal legal agree-
ment covering the joint use of school recreational facili-
ties, the type of agreement varied (joint use agreement
[JUA], 39.3%; special use permits, 37.3%; memorandums
of understanding, 26.7%; interlocal agreements, 18.0%;
leases, 14%; and other, 10%). Of those with a formal legal
agreement governing shared use, only 44.8% (n⫽69) re-
sponded that they believed the legal agreement provided
adequate protection from liability. Additionally, only
14.6% (n⫽22) of respondents stated that they formally
would share facilities with outside groups if they did not
have a formal legal agreement.

Table 1. Cross-tabulation: community use of school recreational facilities, n/N (%)

How concerned are you about

liability should someone be Do you believe that
injured while participating in stronger legislation is
recreational or sport activities needed to better protect
while on school property outside schools from liability
of regular school hours? claims?

Not concerned at Somewhat

all to somewhat concerned to
unconcerned very concerned Total Yes No Total

Do you open any of your school

sport or recreational
facilities to the community
for use outside of regular
school hours?
Yes 48 (21.72) 173 (78.28) 221 (100.00) 173 (80.84) 41 (19.16) 214 (100.00)
No 9 (9.00) 91 (91.00) 100 (100.00) 84 (85.71) 14 (14.29) 98 (100.00)
Total 57 (17.76) 264 (82.24) 321 (100.00) 257 (82.37) 55 (17.63) 312 (100.00)

October 2011
418 Spengler et al / Am J Prev Med 2011;41(4):415– 420
Table 2. Cross-tabulation: familiarity with legislation limiting liability, n/N (%)

How concerned are you about Do you believe that

liability should someone be stronger legislation is
injured while participating in needed to better
recreational activities on school protect schools from
grounds? liability claims?

Not concerned to
somewhat Somewhat to
unconcerned very concerned Total Yes No Total

Are you familiar with a law in your

state that protects schools
from liability when someone
participating in a sport or
recreational activity is injured
on school property outside of
regular school hours?
Yes 31 (23.48) 101 (76.52) 132 (100.00) 97 (74.05) 34 (25.95) 131 (100.00)
No 25 (13.16) 165 (86.84) 190 (100.00) 162 (88.52) 21 (11.48) 183 (100.00)
Total 56 (17.39) 266 (82.61) 322 (100.00) 259 (82.48) 55 (17.52) 314 (100.00)

Discussion reported that their school recreational facilities were

open for community use outside of regular school hours.
Overall, the vast majority of respondents (82.2%) indi- This fınding is consistent with 2006 SHPPS data as to the
cated their concern for liability should someone be in- unsupervised use of school recreational facilities.13 This
jured on their property after hours while participating in fınding, however, does not differentiate between super-
a recreational activity. This fınding supports prior stud- vised and unsupervised use of school recreational facili-
ies22,24 that found liability to be a primary perceived ties, and whether the community had access to all recre-
barrier to community access. Also, among those who did ational facilities on school property or had limited or
not allow community use, the vast majority (91%) were partial use of facilities. Future studies should address the
somewhat to very concerned about liability. This is an nature and extent of usage in light of liability concerns.
important fınding as it suggests that fear of liability is a This research informs policy relevant to the IOM rec-
contributing factor in deterring school administrators ommendation to adopt legislative policies, where neces-
from allowing community access. Further, among those sary, to address liability issues that might block commu-
who do not allow community access, the vast majority nity access to school recreational facilities after hours.11
believed that stronger legislation is needed to better pro- Legislative policy change, for example, might apply to
tect schools from liability.
This evidence suggests the
need for additional re- Table 3. Cross-tabulation: prior legal claims, n/N (%)
search to further investi-
Do you believe that
gate the issue of perceived stronger legislation is
liability as a barrier to needed to better protect
community access, the ex- schools from liability
tent of actual liability, and claims?
whether adopting or am- Yes No Total
ending state laws to re-
duce actual liability is Has your school had any liability claims resulting
from injury to people participating in
likely to reduce the fear of recreational or sport activities while on
liability or related behav- school property outside of regular school
ior based on this fear. hours in the past 5 years?
Nearly two thirds of Yes 31 (93.94) 2 (6.06) 33 (100.00)
respondents whose sc- No 222 (81.02) 52 (18.98) 274 (100.00)
hools were located in
Total 253 (82.41) 54 (17.59) 307 (100.00)
underserved communities

www.ajpmonline.org
 Spengler et al / Am J Prev Med 2011;41(4):415– 420
liability protections in recreational user statutes, clarifıed
to address those types of recreational activities and facil-
ities that are common on school grounds and conducive
to physical activity.23 Idaho, for example, has a state rec-
reational user statute that provides limited liability pro-
tection for public entities where use occurs while playing
on a playground,25 and which has served to protect a
school district from liability.26 The potential benefıts of
limited liability to schools and to public health, however,
must be weighed against the potential negative impact on
an uninsured or underinsured child and family who
might be injured on school property as a result of negli-
gence and unable to recover costs for medical and other
necessary expenses.
Fewer than half of respondents were familiar with a law
in their state that would offer potential liability protection
for after-hours community use of school recreational fa-
cilities, but felt that stronger liability protections were
needed regardless. Nearly three fourths of respondents
were familiar with protective legislation but were never-
theless concerned about liability and believed that stron-
ger legislation was needed. Given the complexities of law
and legislation, it is conceivable that respondents did not
answer this item with full awareness or understanding of
the legislation, and that existing protections may be ade-
quate. Nonetheless, it might behoove policymakers to
revisit state legislation to see where it may be amended to
better address the needs of schools and support after-
hours community use. In addition, school administrators
should become more involved in the legislative process,
and gain additional knowledge of applicable legislation
and other liability protections through credible sources.27
Nearly 10% of respondents reported that they had a
liability claim brought against them within the past 5
years resulting from a person injured while engaging in a
recreational (not organized sport) activity on school
property outside of regular school hours. This fınding
suggests a greater prevalence of litigation in the after-
school context than for school sponsored activities such
as playtime or recess (24.1%); physical education (20.3%);
or extracurricular sports (15.2%), as reported in an earlier
study.18 It does suggest, however, a greater extent of liti-
gation in after-hours community recreational use than
prior studies have appeared to indicate.18 There is a need
for a national census of school litigation in the after-
school setting to better determine the extent of actual
liability. Further, among those who reported that they
had recent legal claims brought against them, the need for
stronger legislation that limits liability was also very im-
portant to them. Research specifıc to schools involved in
litigation is needed to better understand this population’s
perceptions and actions relevant to liability.
October 2011
419
The type of formal legal agreement covering the joint use
of school recreational facilities varied greatly. Fewer than
half (39.3%) reported having a formal, written agreement
commonly known as a JUA. Among those who used any
type of formal legal agreement, however, there was a lack of
confıdence in whether the agreement would protect them
from liability. Even so, very few reported that they would
share the use of their school recreational facilities without a
legal agreement. This perception may be due to poorly
drafted agreements, agreements lacking adequate sharing of
liability risk, or a lack of familiarity with terms. Schools may
address liability when sharing facilities through the use of a
JUA. A JUA defınes the rights and responsibilities of the
parties where the use of school recreational facilities, for
example, would be shared with an outside organization or
local government.28 Under the terms of a JUA, a school may
share the costs and responsibility for liability with the other
party.12
School administrators in underserved communities ap-
pear to be in need of education, advice, and support with
legal agreements defıning the terms and conditions of joint
and shared use of school recreational facilities, particularly
with regard to the sharing of liability risk. The importance of
understanding legal issues as a means to improving commu-
nity health through increased public access and shared use
of school facilities should not be overlooked.29 Based on
these fındings, organizations that provide information and
support in implementing JUAs, for example, the National
Policy and Legal Analysis Network, should target school
administrators in underserved communities.
Limitations
There were several limitations in the current study. One
limitation was the low response rate. Because of numer-
ous time constraints on school administrators, surveys on
shared recreational facility use may not have been a high
priority. However, no major demographic differences
were seen between those that completed the survey and
those that did not. A second limitation was that 7% of the
respondents were not principals. In some cases, these
individuals may not have been fully informed about the
school’s policies. Another limitation of this study is that
it reports aggregate data and, therefore, does not ac-
count for individual differences in state law and the
liability protections they afford. A further limitation
was the use of self-report data, which did not allow for
verifıcation of the existence or implementation of
shared use agreements.
This study was supported by an Active Living Research grant
from the Robert Wood Johnson Foundation.
420 Spengler et al / Am J Prev Med 2011;41(4):415– 420
No fınancial disclosures were reported by the authors of this
paper.
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