4/9/03: The Sassy Confluence of Sport, Law and Policy

4/9/02

Softball: The Sassy Confluence of Sport, Law and Policy

Dear People,

Congratz to all on last week’s magnificent 15-7 triumph of the Weschler-family gene pool. The hard reality is that I was so concerned by the prospect of familial humiliation that I seriously considered ditching Toni at the bagel shop before we headed for the park. Yet when she came to bat for the first time in her 47 years of sportless ineptitude, she promptly sliced a genteel single over 3rd base on her very first pitch, proving once again that experience is both totally unnecessary and conceptually overrated. Of course she contributed absolutely nothing for the rest of the game, and her inability to master the catcher’s task of calling balls and strikes leaves me pondering whether the "cognitive concerns" were ever really addressed back in our youth. Still, her tiny little hit was the emotive foundation from which my team prevailed, and therefore, I did agree to drive good ’ol sis to the airport when I finally got rid of her last night.

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As I announced at the end of the game, our community is now facing a truly transcendent annoyance; The City of Berkeley has suddenly decided that in order for me to rent the field, they will require that I purchase a $1,000,000 liability policy for the privilege. The letters reprinted below speak for themselves, and so I will not repeat anything written there in this brief overview. It is still very possible that my literary cogency will prevail in the next few days, and we will be able to return to the status quo. However, if inanity triumphs in the halls of the bureaucracy, we may face a stark choice, reflected in my own semi-inadvertent decision to play a game of jurisprudential poker with the Berkeley City Attorney’s office.

There are a few possibilities:

1) We can refuse to pay the insurance, and continue to use Codornices Sundays at 11AM. The disadvantage is we will no longer have a 100% guarantee that we have field access, and we’ll have no time flexibility since only the Sunday 11AM slot is likely to be available with anything close to certainty (however, for the last year this is the time we’ve ended up playing anyway).

The advantage is that games will be close to free (I’d collect a dollar every couple weeks or so to cover my other costs), and because we have in fact monopolized the space and time, I think we can be pretty sure that we’d get the field. This is because the same stupid insurance policy will generally prevent anyone else from renting it, and regardless, I will always know with certainty whether it has been rented thanks to my contacts at the city parks department.

2) We could give in and pay for the insurance. The advantage is we get back the field security we’ve had for the last 4 years, ever since Cal basically kicked us off of Kleeberger (The little bastards…). The disadvantage is that I have to deal with a lot of stupid bureaucracy and the fee will go up to $3 a game. In addition, I’ll have to compromise on the principle of not giving in to a totally pointless policy, as I express in the letters. After reading them, some of you may think the principle is not that important and that regardless, I have too much free time on my hands. In fact though, I believe in what I wrote, and regardless, I feel I made at least one city attorney’s job a little more interesting.

3) We could look for another field, appeal to the mayor, drop softball and take up nude bowling, etc…

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I am happy to accept feedback and will go with whatever the majority of regulars prefer. If there’s something you think everyone on the list should consider, you can write to all, but otherwise just respond to me. Enjoy what follows (or not), and as of now, there will be a game at Codornices this Sunday at 11AM, IF I get enough commits by this Friday morning….Raymond

PS: In order to punish and confuse those readers who always scroll to the bottom of my missives without reading the core of my lovingly crafted verbiage, there will be a somewhat distorted version of the last announcement above, placed at the very end of this email.

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[Logician’s Chicken: Raymond Weschler
vs. The City of Berkeley ("Ray’s Side")]

(Slightly abridged for context. Also, I was too lazy to find and copy the responses, but they were generally short and dry, and not as interesting as the two long conversations which inspired the last two letters).

3/17/03

Berkeley’s New Park Insurance Policy; A Personal Appeal

Dear Ms. Albuquerque,

I am writing you as a long-time Berkeley citizen who is deeply concerned by a newly implemented policy concerning the renting out of city parks for recreational purposes. Some brief background information will be useful:

For the last five years, I have reserved Codornices Park for two hours a week in order to assure space for an informal email-organized softball game (usually played Sunday mornings at 11AM). My group of several dozen people represents a wonderful cross section of the Berkeley community, and I can say unequivocally that we have had a completely symbiotic relationship with the city. Since 1998, I’m sure that I have personally paid over $5,000 in permit fees, and we in turn have been responsible stewards of the park while we are using it.

Susie Rombilas, the excellent administrator at the Department of Parks and Recreation, has called me her best customer, and as far as I know, there has never been a single problem with our use of the park. We are a friendly bunch of people, and this game has become something of a Berkeley institution; I encourage you to take a look at my official softball website, which gives you a flavor for what we are all about---

http://www.eslnotes.com/ray/6.html

In any case, a couple weeks ago, Susie informed me that she would soon not be able to rent out the field to me unless I procured an insurance policy that covered the city of Berkeley for up to $1,000,000 in liability for each time we rented it. Such insurance would cost at least several hundred dollars, which is basically prohibitive for us given the very informal and loosely affiliated nature of our game (i.e.…as you can see from the website, we are not an official league in any sense, and thus people just show up only if they want to play on any given week, with a small $2 fee per person to cover the cost of the field and balls).

Regardless, and more to the point, I will continue to organize softball games at Codornices no matter what the city’s insurance policy is, but I am respectfully asking you to allow me to continue paying Berkeley its standard rental fee for the privilege, even without the insurance. In short, I am requesting that you allow our symbiotic relationship to continue, because after doing my own legal research, I am completely confident that there is simply no logical basis for ending this relationship. Again, we will continue to play at Codornices, but if we suddenly can’t afford to buy the reservation, our five year win-win relationship with the city becomes an immediate lose-lose proposition for all involved.

This is because the city will needlessly lose out on several thousand dollars in field fees over the next few years, and we in turn will face the occasional annoyance of driving to the park for nothing because others will have seized the entire field before us. Or more frequently, we’ll face the hassle of having to share our outfield with others who will refuse to leave because we’ll have no reservation slip to authoritatively claim the turf.

Ironically, of course, the end result of all of this is that people are more likely to be seriously injured than if we were allowed to continue as before. Yet assuming there are no plans to literally close all city parks out of some obsessive fear of frivolous lawsuits, the new policy of no-reservations-without-insurance does nothing to make the city any more or less liable under the relevant state statute.

I will now explain my legal reasoning, while trying to be as brief as possible:

The matter of city government tort liability is controlled by the Tort Claims Act (Derrings Govt. Code, Sections 810 and seq.). More specifically, and for the purposes of this analysis, I will focus on Section 831.7, which is subtitled "Hazardous recreational activities; failure to guard or warn; negligence, duty of care." I choose to focus on this particular part of the statute because if for whatever reason the city did not view softball as a hazardous recreational activity, then it would simply make no sense for it to demand the purchase of insurance for park use (i.e.…the city would still clearly be liable if it were seen as grossly negligent in the maintenance of its parks, such that, for example, a group of boys walking through the park who suffered grave injuries after falling into a giant semi-covered sink-hole that had been known to city officials for months would likely prevail in court, even if they had not rented the field!)

Regardless, and although not discussed in published opinions, softball would certainly be seen as a hazardous recreational activity by any judge, given the very wording of the statute. Section 831.7 (b) (3) states that hazardous activities include all "body contact sports (i.e.…sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants)." My own experience is that there is at least one or two "dramatic body-contact slides" per game, though in all our years of play, we’ve fortunately had no serious injuries!

In any case, it is my belief that the city is demanding the insurance purchase with its rental fee because of the interplay between Sections 831.7 (a) and (c). Section (a) begins immediately with the declaration that "Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity…" Given this, one would think that Berkeley would have no need to demand liability insurance from any group that engages in any serious contact sports within their city parks.

Admittedly, however, Section (c) adds that "Notwithstanding the provisions of subdivision (a), this section does not limit liability which would otherwise exist for any of the following:"….and the first sentence of 831.7(c)(2) then declares "Damage or injury suffered in any case where permission to participate in the hazardous recreational activity was granted for a specific fee." And indeed, had this subsection ended with those words, there would in fact be a rational basis for the city to demand liability insurance, since this would imply that under 831.7’s hazardous recreational activities provisions, the city would be liable if it rented the field to a group of softball or soccer players, but not liable if that same group just used the field without reserving it.

However, 831.7 (c) (2) does not end with those words. In fact, it immediately goes on to add that "For the purposes of this paragraph, a ‘specific fee’ does not include a fee or consideration charged for a general purpose such as a general park admission charge….[or]….an administrative or group use application or permit fee…." Clearly, the "Facility Use permit" I purchase each week is exactly that---a general permit that allows my group to reserve park space for our chosen recreational endeavor. This happens to be softball, which as discussed, is clearly a contact sport that qualifies as a "hazardous recreational activity" under the provisions of 831.7 (b) (3).

Thus, the only logical conclusion from the plain language of the relevant statute is that Berkeley is not liable for whatever injuries any softball players in my group might sustain while playing, and if this is the case, there is simply no logical policy basis for why the city would want to deny us a paid permit. This is especially true since we will continue to use the park without a permit, even if we must do so in more injury-prone co-existence with those people carving out corners of the field for soccer, football, etc.

Given all this, I hope you can see why I have said that Berkeley’s recent action needlessly turns a win-win relationship into a lose-lose one (Frankly, I believe that the plain words of this statute as well as the relevant case law make it clear that the city is not liable for any team sport related injuries, even if it involves players signed up in official city leagues. However, I concede that where the city has a more official relationship with the players, including by participating in the scheduling of games, the supplying of referees, and so on, then the language of 831.7 (c) (2) could possibly be interpreted to suggest otherwise. Regardless though, I am not appealing to you for them, but merely on behalf of my humble little group).

I should also briefly point out that since my group (or others) would be using the field without a permit, the provisions of 831.7(5) are basically irrelevant vis-à-vis the insurance policy. Under this specific clause, the city of Berkeley would be liable for "An act of gross negligence…which is the proximate cause of the injury." Thus, I suppose, if after the game was over, somebody in my group fell into the proverbial "giant semi-covered sink-hole that had been known to city officials for months," Berkeley would have a problem.

Again, though, the city would have that problem regardless, since people will obviously continue to use the park without insurance-enhanced permits. The bottom line is that the city should do what it can to eliminate any proverbial known sink-holes (for the record though, Codornices is well maintained, and I’ve never seen any sink-holes or other evidence of negligence). However, Berkeley need not worry about its citizens casually engaging in the very team sports that our beautiful city parks were made to host!

In the interests of brevity, and because this letter does not pretend to be a formal legal brief, I will not go seriously into the relevant case law. However, I will be sending you a hard copy of this letter, and with that I will include some annotated code. While there are, alas, no published cases on softball, per se, there are a few cases on point that I would refer you to in the annotations:

i) Ochoa v. Ca State University, Sacramento (1999), 72 Cal App 4th 1300

ii) Yarber v. Oakland Unified School District (1992), 4 Cal App 4th 1516

iii) Perez v. City of Los Angeles (1994), 27 Cal App 4th 1380.

The first two stand for the proposition that government entities cannot be held liable for injuries suffered from participation in team sports (in these cases, soccer and basketball), and the last one is included for the specific proposition that cities are not liable for injuries that children suffer while engaging in other types of hazardous activities in a public park (in this case, swinging from trees). There are various other cases that you’ll see are relevant, but the main point is that you will find no cases in which a government entity is held liable for injuries sustained during voluntary participation in body-contact team sports or other hazardous recreational activities.

I am well aware that Section 6.46.100 of the Berkeley City Code requires that permittees acquire liability insurance "for major park events." However, it also states that "for all other park events, the City Manager may require insurance in an amount appropriate to the event." I would suggest that a casual game of softball is hardly a major event, and regardless, given that the law makes clear that the city would not be liable for any softball–related injuries for our unaffiliated group, it seems more than obvious that it would be both inappropriate and counterproductive to force us to purchase of any insurance
at all.

Having written all this, I would like to respectfully ask that you immediately allow the Recreation Programs Office to resume renting out the field without the need for me to purchase liability insurance. At a minimum, and as a Berkeley citizen, I would request that you show me the contrary legal authority which shows how the city of Berkeley benefits in any way from what certainly seems like such a totally unnecessary policy in my group’s particular case.

I can assure you that I am not trying to cause a ruckus or be a gadfly or make problems for you or your office; I simply want to continue organizing softball games at Codornices Park, while paying the city a reasonable fee for the privilege of doing so. If you would like, I would be happy to meet with you to discuss this situation further, and in any case, I look forward to hearing from you at your earliest possible convenience.

Thank you so much for your time and consideration…..Raymond Weschler

PS: For the record, my primary goal is to find a solution, not win a legal debate. Thus, if for whatever reason you are still hesitant to let us rent out the field for softball use, may I suggest that you allow us to rent the field for croquet, which is perhaps the least injury-prone sport in all the world (There is a "For" slot on the Facility Use Permit, and rather than type in Softball as has been done in the past, Susie could simply type in "[For] croquet only"). Certainly anyone who sued the city for injuries suffered in a softball game while on a field that the city specifically authorized only for croquet would face an immediate summary judgement against them….

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3/28/03

My Park Insurance Policy Request

Dear Gentleman,

A couple days ago I had the opportunity to talk to Susie Rombilas at the Department of Parks and Recreation about my letter to city Attorney Albuquerque concerning the park insurance situation. As far as I can tell, Ms. Albuquerque forwarded my letter to you guys so that you can take care of it, perhaps because she considers me some kind of psychotic nuisance. I can only speculate about that, since she has yet to even acknowledge that she’s received my letter. In any case, if you don’t have it, I would be happy to forward it to you.

Assuming you do have it, I would very much appreciate hearing some feedback on my request for the insurance requirement to be dropped for my softball group. With all due respect, and at a minimum, I deserve to be shown the slightest countervailing legal authority to the arguments I present, but since I truly doubt you’ll be able to do that, I will tell you that a reversal of the policy in question would make you national heroes, at least within my softball community. Indeed, if you do the right thing, I would even put you on the list and allow you to play, despite the current moratorium! (see http://www.eslnotes.com/ray/6.html).

Look, I don’t know you guys, but I have to assume you’re reasonable people, and as such, you certainly realize that this $1,000,000 park insurance policy as it applies to humble unaffiliated park-loving Berkeley citizens such as myself is pointless, counterproductive and asinine. Please don’t make me, just out of principle, turn this into a cause celebre with all 300+ people on my softball email list, my councilman, and the local media (no doubt that the East Bay Express, the Daily Cal and the newly reborn Daily Planet would love the angle---"Cash strapped Berkeley refuses to take $ thousands from citizens who want to pay it….for NO logical reason!!!").

OK, looking forward to hearing something from somebody soon/Best wishes….Raymond Weschler (510) 845-7552 /RWBerkeley@aol.com

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4/1/03

Update from Raymond Weschler on Park Insurance

Hi Matt,

I did get one quote on the $1,000,000 liability park insurance of $624 per annum. This was from Acordia Insurance in Colorado. I tried a couple other major companies whose representatives had never heard of the insurance I was trying to research (‘sport injury liability’ was how I described it). So the bottom line is that for my little unofficial group, it appears that the city is asking me to almost double the amount that I have to collect to pay for the game (from $2 to about 3.50). You may think this isn’t a big deal, but to the extent this is a fairness issue, I think it’s unfair to me personally. It forces me to become a banker since I’ll be fronting the money and hassling with the paperwork, and it simply makes me feel uncomfortable having to ask for an amount that starts to become a drag (for want of a better term) for many of the less affluent players.

Regardless, and as nice as it is you that you view this as a question of fairness, I wouldn’t be writing any of this if the policy served the city’s interests in any way, but in our case, it does the exact opposite. The bottom line is this: We are going to play without the permit. As I told you, the risk of injury to others not in our group will actually go up since I no longer have the "reservation slip authority" to kick off the various kids who play their games of catch, soccer or whatever in the deeper peripheral sections of the outfield. And while you may glibly say that the $28 fee isn’t an issue, the fact is that this will add up to thousands of dollars that Berkeley will not receive over the next couple years alone. I should also add that since the fine administrative folks who take the five minutes a week to process the forms are going to be in their offices in any case, I think it’s silly to claim the city doesn’t actually pocket that money.

So again, the crux of the issue is quite simple: Does this policy protect Berkeley in any way from liability in OUR PARTICULAR CASE, and in one last attempt to cut through the (basically enjoyable but also frustrating) circular nature of our recent conversation, I will briefly summarize our argument:

With all due respect, I do not misunderstand 831.7(a)(3) or 831.7(c)(2). We both agree that this isn’t about players getting injured playing softball ("a hazardous activity"), since we both agree that in my humble unaffiliated group’s case, the statute and case law makes clear that the city is not liable for that. Indeed, we both agree it’s about "sprinkler heads and darling little kids traipsing by who get conked on the head." And we also agree that if the city doesn’t shut down the parks and a group of players without a reservation (such as my own), accidentally slam a ball into the egg-shell skull of a darling little boy playing twister in deep center right, and in rushing to his aid two players trip over a stupid-ass exposed sprinkler head and tear apart their tiny little tendons, well, then the city is liable, EVEN THOUGH those players have no reservation slip (Frankly, I think it’s ludicrous that the city would be liable for the kid, but regardless, can we agree that I have summarized the law as it is? If not, please tell me precisely what I have gotten wrong in this last paragraph).

Now, given this, it’s clear that my group falls into a middle zone that, as you yourself intimated, is being unfairly swept in with the official city leagues. That is to say I can see three plausible reasons why the city leagues, unlike my own group, would be required to have the insurance:

i) Given the city’s intimate involvement, and although a close call, the language of 831.7(c)(2) is such that the city could plausibly be held liable for player injuries during official city league games.

ii) The city actually gets liability protection that they wouldn’t get otherwise, since the league are going to pay it regardless in order to be guaranteed the fields, umpires, etc. (i.e.…they have too much at stake to risk a field conflict the way my group would), and

iii) In terms of fairness, the marginal cost of insurance, paperwork, etc. for an official city league player is nominal (an extra 10-20%, where for my league, it could double the cost, and adversely impacts the casual pick-up spirit of the game).

Incidentally, you’ll note that I wrote that my group falls into a "middle zone," which is to say that I think you could even make a plausible (though mean-spirited) argument for charging insurance to all those who happen to walk in off the street wanting to reserve a park once every few months. Since they don’t have the institutional park history or commitment that my group has, they are often likely to conclude that they can’t risk telling people to show up for an unreserved field, and since they won’t want to go through the hassle or expense of getting the insurance, they’ll just cancel their plans. I suppose that as actuarial risk assessment goes, this is a "desired outcome," but as a citizen, I find it sad, to say the least.

In any case, I’ve shot my logical wad and have nothing more to add. As I said, my group will soon be playing without a permit, and as a result, Berkeley will be pointlessly giving up about $1,000 a year while actually running a somewhat greater risk of a "conk-on-the-head suit." So be it. Yet if you can’t precisely explain to me how my reasoning is flawed or how this new situation actually advances a city interest, I would ask you to do the right think and drop the insurance requirement, at least for my particular group.

Sincerely Yours…..Raymond Weschler, your favorite city resident….

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4/4/03

Update from Raymond Weschler on Park Insurance

The price would still go up 50% to $3 a game in order to cover my costs. Regardless, it is me personally that is being forced to front the money and do the paperwork for a completely informal game that I organize precisely because I’m into community and flexibility as opposed to official leagues (For the record, this group consists of over 100 locals, of which only about 10 show up more than half the time).

I’m sorry you ignored everything I took the time to write, but again, the fairness issue is secondary to the completely counterproductive results of this policy as it applies to both my group and the city. So sure, you can ask "staff" whether they think it’s fair that I should be forced to send off a check for $600 to an out of state insurance company which is out of my own pocket until I collect the money over the next several months, but to be honest, I don’t really feel like doing that no matter what they think (again, we’re not a league, my cash-flow isn’t great, there is no set group of players who show up every week, and I’m not paid for my efforts).

But more importantly, I think you should ask staff if they are satisfied with the outcome of all this, which is that we are now continuing to play on Codornices, but paying the city zero for the privilege, even though we would prefer to pay the regular $28 fee for all the reasons previously stated….Raymond

PS: You missed a great game yesterday; My team won 15-7!

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And therefore, there will be a lederhosen-only game at Codornices this Sunday at 7AM (which is like 11AM except that it’s four hours earlier), IF I get enough commits by this Friday morning….Ray

4/11/03

Softball: Breaking with Precedent…

Dear People,

There will be a game at Codornices this Sunday at 11AM, and as of now there are still two slots left.

The Berkeley city attorney’s office is still contemplating their decision, and so for the time being, it looks as if at least this week’s game will be without a fully guaranteed space. However, please rest assured that I have already used miraculous modern technologies to forge a reservation slip with this Sunday’s date inserted, and I can guarantee that no other peoples have it reserved. This isn’t what I prefer, but in this grueling duel of legal principle, we will not be deterred (at least not now).

This week’s game is free of charge, unless you hear otherwise…. Raymond 845-7552

PS: There is a group that often does batting practice before us, but they are friendly and always leave just as we arrive. There is no need to be frightened of them, and indeed they’re expecting us. Still, it’s probably best to avoid saying things like "Hey guys, now that we don’t actually have a reservations slip, you’re not going to engage in aerobic realpolitik and stay here to noon, are ya?" Granted, that might be tempting, but it probably wouldn’t be helpful.

PPS: If it rains heavily between now and then, check email for updates.

4/12/03

Softball: Hosed by Higher Forces ;-(

Sunday 8:30AM

Dear People,

Given that Codornices is now a gator-filled suck-swamp of putritude, I have no choice but to cancel today’s game.

I know this is a bitter disappointment and that some of you will be tempted to blame those pesky barristers at the Berkeley City Attorney’s office. Yet after extensive consultations with my contacts at the Meteorological Desk at the Latvian Consulate in Livermore, I can assure you that this has been a natural rain---wet, excessive and despicable---but in no way caused by the sinister designs of mere misguided mortals.

Patience….Raymond

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