American society has always been a mix of private and public organizations, the institutions that shape our lives. Philadelphia’s park system is no different. The city owns the land and is responsible for it, but subcontractors are often hired to do the work of maintaining it. For anything beyond that, volunteer organizations do the job of making the park a green and pleasant place to visit, helping the system live up to its full potential.
The Friends of Pennypack Park is one such volunteer group—or was, until the group was forced to “go dormant” at the end of March after thirty-three years of selfless service to the park and those who use it. The end came not because of a lack of volunteers or funds, but because of frivolous lawsuits against the organization over events in which it played no part. Because of plaintiff’s lawyers’ dishonest suits and judges’ refusal to dismiss them, the FOPP’s insurance company was forced to pay — either to settle the claims, or to fight them in court.
The accidents that gave rise to the suits were tragic: one involved a child drowning in the creek, another concerned a different child being struck by a falling branch and sustaining serious injuries. The subsequent actions of the plaintiff’s lawyers are a different kind of tragedy. Looking for any possible source of money, they sued the FOPP as well as the city, despite there being no connection between the volunteer group and the incident.
Eventually, the insurance company dropped their client. That left the Friends organization unable to operate, because the Philadelphia Department of Parks and Recreation requires that volunteer groups carry insurance. No insurance, no Friends of Pennypack Park. If individual volunteers chose to do the FOPP’s job on their own they would run the risk of being sued too, even if they, like FOPP, had nothing to do with the incidents at the heart of such lawsuits.
The end came not because of a lack of volunteers or funds, but because of frivolous lawsuits against the organization over events in which it played no part.
Linde Lauff, the group’s president, described to me her disappointment with the course of events. Since the COVID-19 outbreak has shut down so many other forms of recreation, she says, “parks have become more valuable and what volunteers have done to maintain them should be recognized.” Instead, there has been no outreach from the city to take over the tasks the FOPP once performed.
State Representative Michael Driscoll of Northeast Philadelphia’s 173rd district has proposed a legislative fix to the liability problem, and most of the other representatives in the area have joined his effort as co-sponsors. But the bill, HB 2310, was proposed in February, just before the coronavirus outbreak shifted everyone’s attention to lockdowns and mask mandates. Driscoll’s bill remains mired in committee.
House Bill 2310 would make explicit what was already true in state law: groups like FOPP are not liable for events over which they had no control or responsibility. That would have been the inevitable result of the lawsuits from any fair jury, but the new law would let judges dismiss the suits right away, saving cash-strapped volunteer organizations from the expense of defending a nuisance suit filed by rapacious plaintiff’s lawyers.
The vast majority of Pennsylvanians would surely agree with the change to the law, but the problem is one of enthusiasm, not numbers. Where a special interest group is greatly outnumbered but vastly more dedicated, it can still manage to keep politicians on their side. Here and elsewhere, trial lawyers have done just that. A loser-pays system would seriously limit frivolous lawsuits of the sort launched against FOPP. It is the rule in Britain and elsewhere, and would likely prove popular with the American people, too.
But for most voters, this issue is not paramount, while for the plaintiff’s bar, it is. The latter group will devote money and energy to convincing legislators not to tweak the system, while the rest of us will not. And so the impetus for change fades away, and society — along with Pennypack Park and the community it serves — suffers.
The accidents that gave rise to the suits were tragic. The subsequent actions of the plaintiff’s lawyers are a different kind of tragedy.
Part of what separates a society from a mob is its institutions. Government is one institution, but it cannot be the only one. All of the things people join together to accomplish in our communities also develop into institutions. In this case, none of them are now functioning properly. The volunteer organization — through no fault of its own — is forced to fold, and the government refuses to act to fill the gap. A small litigious group undermines the whole system.
The problem is not limited to one group. Already, other similar organizations around the city have been sued in equally weak cases. Without action, they will suffer the same fate as the Friends of Pennypack. Rep. Driscoll’s bill will not stop the societal trend of decaying institutions, but it will give a few groups that serve us room to breathe.
Covid-19 issues may be dominating the legislative session, but that must not mean that every other problem is ignored. State legislators would do a great service to the parks and the people who use them by acting to fix this problem and to build up the volunteer organizations that make life better for so many Pennsylvanians.