Living with liability

I have to admit I have been really morose over the past few days, and I really don't know why.  I'm trying to settle on some upbeat music to cheer me up, and I've finally landed on some Nat King Cole.

That's helping a little bit.  I'm also going to write a post about positive government decisions, or at least ones that I agree with.

It is hard sometimes to appreciate it but city councillors are generally trying to balance a lot of competing interests and conflicting advice.  I think it is fair to say that most take their jobs seriously, and it is often the fickleness of the public that leads them into some of the more puzzling decisions that they make.  But there is one thing that is a constant, and that is that the city's legal staff are always recommending bylaws to limit the city's legal exposure.

And in the abstract, that is fine.  That is what they are there to do, though over the past 20-30 years, the tort system has generally removed all personal responsibility from the equation and municipalities have been sued for some of the craziest things and often have lost.  (I suppose in some cases it is questionable whether the municipality had done enough to warn of the risks, but generally these cases highlight an out-of-control legal system.)  This leads to another round of CYA legislation.

Council always has the opportunity to override staff recommendations, though they rarely do.  So I think it is worth celebrating that Toronto City Council has taken a few chances, particularly when it comes to allowing kids to play "the way they used to."  Mayor Tory in particular has been willing to support this, accepting of just a bit of risk here and there.  Maybe I am being too optimistic, but perhaps the pendulum is swinging back a bit to when most kids were raised "free range," as it were, and helicopter parents were rare.  In general, there may be just a bit more common sense in Canada (and slightly fewer lawsuits) than in the U.S.

I'm specifically thinking about the recent decision to overturn a municipal ban on street hockey (and street basketball) in Toronto.  Some information about this decision here and here.  The vote really wasn't close at all (35-2).  What's particularly interesting is that 5 years ago council was asked to overturn the ban, but the decision at that time was that since the bylaw was rarely enforced, it was better to leave it on the books (to not open the city up to liability and to leave the cops one more tool to break things up if a game was getting out of hand).  I have to admit that seems an extremely cynical view of the role of municipal bylaws and one that leaves parents at the mercy of a rogue cop, who could hit them with $55 tickets.  So I'm quite pleased that they changed their mind this time around, since it would have been easy to stay with the status quo.

Along similar lines, Toronto allows sledding and tobogganing on most hills (and Tory was strongly opposed to outlawing sledding), though there are a few specific hills that are considered too dangerous and are marked as "No sledding."  Apparently, it is fairly hard to monitor these hills, but the city has basically covered itself to the point where it should avoid liability.  To me, this is a very reasonable approach.  Certainly, all the parks near us have decent sledding hills and they are heavily used in the winter.  However, the City of Hamilton was burned by a lawyer who injured himself while sledding, and they had to pay out $900K!  In consequence, the bylaws are not going to be dropped in Hamilton and technically one is not supposed to sled in the city, though the article goes on to note that no one has actually been fined in recent years.  So the situation is a tough one for parents, who basically end up teaching their kids to ignore bylaws when they don't make sense or aren't actually enforced.  (Not really a great life lesson...)

Also, Toronto is experimenting with bringing back legal skating to Grenadier Pond in High Park, trying to make the tradition legal again.  This is a case where the lawyers may end up having the final say, but we'll see.

Sometimes the bylaws are written in a way that ends up being pretty broad.  There was a problem with fighting kites in some parks, and then they passed a broad bylaw.  In fact, someone told me that flying kites in Toronto is illegal, though that isn't entirely true.  This is the bylaw:

While in a park, no person shall:
(1) Fly a kite with a string made of hazardous materials;
(2) Fly a kite within 25 metres of any tree, building, light pole or hydro or other utility pole;
(3) Fly a kite in parking lots, roadways or pathways;
(4) Fly a kite for the purpose of competitive flying unless authorized by permit;
(5) Fly a kite where posted to prohibit kite flying; or
(6) Leave in the park any part of the kite, including the string or other type of
tethering material, except in a waste disposal container

The rub is that "hazardous materials" includes materials made of metal, wire, piano wire, fishing line or any type of nylon that can be or is chemically treated or contains glass fragments.

Virtually any nylon string could be chemically treated.  Obviously, the only string that would completely satisfy this bylaw is a cotton string.  So while one could be hassled for flying a kite in a park, especially too close to trees, in general one is probably going to be left alone (and the liability is generally low so city council isn't likely to push for a wider ban on kites, particularly under Tory).

I did buy a kite a while back, and it appears that the string is cotton or a cotton/poly blend, and it probably doesn't violate the bylaw.  This might actually be a good weekend to attempt to fly it, so I'll see if the kids are interested.  That might be fun, provided we don't crash it into a tree...

I was going to write about the ridiculousness of Illinois State law with regards to bicycles, but I fear that would just upset me and undo the point of writing out this post.  Perhaps some other time.  For now, I will just focus on the fact that Toronto is willing to accept at least a bit of liability in order to let kids play the way they used to in generations past, and that, in my view, is something to celebrate.