Tuesday, October 12, 2010

Monkeying with Byrd Park

Should a ropes course be installed in Byrd Park? My latest OpEd piece at Richmond.com asks a few questions about the new proposal.
Hey, if people want to pay money ($55 in Rockville) to swing from trees, why not? Sounds like fun. But true nature-lovers, as well as the neighbors who live close to the park, might suggest this granola theme park activity -- with its considerable liability potential -- seems like it would be far better situated on private property.
Click here to read the entire piece at Richmond.com.

Click here to read an article in Richmond BizSense that puts a positive spin on the same project.


Anonymous said...

The city could limit its exposure contractually with GoApe. They would simply require GoApe to indemnify and defend the City if the City is ever sued in relation to the ropes course. It's pretty simple.

F.T. Rea said...

Scenario A: A 25-year-old man crashes into a 16-year-old boy. There must be any number of ways that could happen with zip lines, the force of gravity, etc. Turns out the man was legally too drunk to drive. Both guys break bones. The boy’s neck is broken, which leaves him paralyzed from the neck down.

Go Ape! pays for both guys’ medical expenses. However, claiming there was gross negligence on behalf of the drunk guy and Go Ape! the kid’s family sues them for $100 million.

The drunk guy isn’t worth a $10,000. Go Ape! has insurance to cover $20 million and the company’s assets are good for no more than $5 million.

If the resources of the drunk man and Go Ape! can't cover the damages, are you saying the kid’s attorney isn’t going to add the City of Richmond to the list of defendants?

Are you saying that agreements signed by The City and Go Ape! when the course was built will put up a firewall that cannot be penetrated by such a lawsuit?

Anonymous said...

yes, that's what I'm saying. They can sue the City, but GoApe has a duty to defend the City, and duty to indemnify the city. Obviously the city should not enter into any contract with GoApe for defense/indemnification unless there are assurances in place to prevent a situation in which GoApe has become insolvent or doesn't carry enough insurance. The contract certainly would require GoApe to carry a very significant minimum level of insurance.

F.T. Rea said...

And, I'm saying I don't believe agreements made by The City and Go Ape! will prevent an injured party from suing The City.

Then Richmond's taxpayers hope The City wouldn't have to spend a fortune trying to get out of the lawsuit/defending itself. And, they pray Go Ape! will have enough insurance and assets to cover damages that might be awarded. After all, punitive damages can go rather high in some cases.

Plus, if there's gross negligence involved, whatever waivers the injured party might have signed before they entered the ropes course, saying they wouldn't hold Go Ape! responsible, might not hold up.

Saying there's no way The City can suffer is misleading.

Anonymous said...

GoApe would be paying for the city's defense...that's what the duty to defend is.

As for punitive damages, they are capped by statute in Virginia at $350,000, which is why Virginia is not a favored forum for plaintiff's attorneys.

F.T. Rea said...


OK. I’ve done a little research. Thanks for making me take the initiative.

Punitive damages are capped just as you said. But compensatory damages have no such limit in Virginia; they can be subject to whatever a jury thinks appropriate.

And, I'm told most personal injury attorneys would include The City in the lawsuit previously described, to be prudent, if only to avoid a malpractice problem. Furthermore, whether The City would want Go Ape’s attorneys to represent it is hard to say. The City might well decide its best interests would be served by having it own council.


No doubt, whether or not The City could be held liable for damages would depend on several variables. Here's just one possibility: Suppose Go Ape gets clobbered with a big award from a verdict somewhere else and it goes bankrupt, because its insurance is insufficient. Even worse, suppose it has lapsed or been canceled, for whatever reason. In such sad circumstances it looks like The City could end up being the only pocket.


Insurance, indemnity and waivers are all good. All would work to decrease the likelihood that The City would end up in such a pickle. But it's my understanding they do not form that firewall I referred to above.

Finally, if Go Ape puts its ropes course on private property that would eliminate all this pesky potential to suddenly gobble up the taxpayers’ money.

Anonymous said...

LOL. The city can structure the agreement with GoApe to provide as much protection as it wants. If GoApe won't agree to the terms, they can take a hike.

But your argument basically is that no activity should ever be allowed on public property, because there is always some risk that someone is going to get hurt, and some risk that the city will get sued, and some risk that even though the city has negotiated a contract whereby it won't have to pay for its defense if it gets sued, and won't have to pay a dime if a judgment is entered against the city because of the indemnification provision, the city would nevertheless voluntarily decide to pay for its own defense. In that case, what the heck did it do the deal with GoApe for in the first place!

There are ways to contractually ensure that GoApe maintains adequate insurance to cover even the most serious injuries (brain injury, etc). In addition, the city's contract with GoApe could require GoApe to regularly provide proof that it is paying its insurance premiums. If they fail to provide that proof, they've breached their contract with the city, and you could include a provision in the contract whereby the city would have the right to shut down GoApe's operation immediately if that happened.

You are playing the 'parade of horribles' game, but it really lacks a foundation in the practical application of the law.

F.T. Rea said...


Anonymous experts don't have much credibility at SLANTblog. And, I have to say you're sounding more like a booster of this project than an expert on the law.

By the way, why the dismissive tone? Is there a reason you must hide your identity?

The reader knows my name. My questioning of the wisdom of this project is based in great part on simply wanting to preserve what is there now -- undisturbed nature. What is your interest in defending the merits of this ropes course development?

Anonymous said...

LOL. Do some research. I don't care about the project, but I do know the law.

Why is it whenever someone points out a fallacy in your arguments on your blog you attack the poster? Whether I have a name or am anon, that doesn't change the fact that what I've said is correct.

F.T. Rea said...

Anonymous, people who know what they're talking about and have nothing to hide don't have to post anonymously. But I feel like we may have had this conversation before. Obviously, you've read some of what I've written in the past about anonymous experts.

Know this: The two friends I checked with, who both have over 30 years of experience in personal injury law in Virginia, do know what they are talking about. So that makes you one of two kinds of players. Either you're pretending to know the law that applies in this matter, or you do know it but are deliberately twisting it for cloaked reasons.

We are left to guess which label sticks best to your posts.

Thanks for reading SLANTblog and commenting, Anonymous, but I won't be responding to anything else you have to say in this space along these lines.

Anonymous said...

Well, your friends are not good attorneys.

How about telling us their names. After all, we can't have anonymous 'experts' on Slantblog, now can we.

Anonymous said...

I think we should sell off all of our city park lands and turn them into some real green - the cash kind. Tell those families who currently enjoy our parks that the free ride is over. The deer I saw there the other day can find a new home. And if they don't, I don't care. They have never paid one dime in taxes, and I doubt they have the funds to pay for admission. It's time to take control of our public park land, throw all of the freeloaders and green nature lovers out, and sell them off to the highest bidder. I'm hoping some French company is going to put up a water slide park at Maymont. I hear that some Irish company wants to put I'm a go-cart park at Forest Hill. Free Guiness Stout if you pay for 10 laps. Just make everyone sign a waiver and who cares what happens? I just want to make some money. Nature is overrated anyway. Too many animals for me, all living in the wild. We have places for them - they are called zoos. I'd rather hear some kid screaming down a zip line instead of watching a hawk or seeing a deer anyway. Animals are boring, just like all of this lawyer talk.

Anonymous said...

So how does this work? If I am some guy in England that searches the United States to find land with trees that are strong enough to support rope swings and if the only place in the US that happens to have trees like this is in a public park in Richmond then the city planners will close it down to the public and let me start an amusement park there and send the money back to my English home? You Yanks are great. This works for me. Is there a web site where I can pick out the city park I want?

Matt Zoller said...

Wooded Area Behind the Carillon Might Be Death Valley

An e-mail to the editor, June 2008:

While walking my dog this evening down Cary St, I noticed a two women walking with what appeared at a distance to be a drunk dog. Upon closer inspection, it was actually a capuchin monkey, and I’m pretty sure it was in sort of a French mime costume. As I passed them, the lady not holding the monkey asked me if it was cool if I let her make monkey noises at my dog, like she was scaring it away. This was to train the monkey.

So of course I said yes, and I continued down Cary St. while a grown woman made monkey noises at my confused dog, as a real monkey looked on, and hopefully learned a valuable lesson.

I’ve only lived around here a few months. Is this normal here?

National newswires, dateline July 4, 2008

A "pet" monkey bit a teenaged girl at Dogwood Dell in Richmond, Virginia’s Byrd Park. The Health Department issued a press release to gather information about the monkey's general health history so proper medical treatment could be provided to the patient. http://www.10sboulevard.com/node/186

March 2010

Frisbee golfer Andrew X entered a wooded area behind the Carillon to retrieve a misthrown disc. He returned quickly to his group and, alarmed, announced, “There’s something in there!” http://www.youtube.com/watch?v=J8ZH9vdVyvA

I’m generally a fan of ropes courses and I think all the talk about drunk participants causing multibazillion dollar law suits certain to bankrupt the city are silly. But the monkey is real. He is indeed “in there,” and he’s not to be toyed with. He’s finally found a refuge where he’s a lot less likely to taunt dogs or attack teenage girls and maybe -- just maybe -- we should leave well enough alone. Whether he’s a capuchin monkey or some other breed, I fear his disposition is pure Rambo. When he sees signs for “Go Ape” popping up near his refuge, he’s going to take it as a species specific slur, and he will not take it well. People swinging through tree, in his face, making fun of how his kind gets around? He might be able to keep a lid on his rage for a week or two, but it will boil over, and it could be bloody. http://www.poetv.com/video.php?vid=34787

For the love of God, don’t monkey with the monkey. Go Ape anywhere else.