Cracked courts and liability: what a facility manager should know

I am a contractor, not a lawyer, and the lawyers will tell you to call one. But I have been asked for photographs and invoices by enough insurers and attorneys after someone fell on a court to know what an owner wishes they had, and it is the same three things every time: a record that the surface was inspected, a record that what was found was fixed, and proof of when. Here is the practical side of court and lot liability, from the trade's end of it.

What a claim looks like

Somebody catches a shoe on a lifted crack edge, or slips on algae, or steps in a pothole in the lot after dark, and is hurt. The question afterward is whether the owner knew, or should have known, about the hazard and did not deal with it in a reasonable time. A crack that opened last week is one thing; a lifted edge that has been photographed in three years of spring walks and never fixed is another. The records cut both ways, which is why they have to be kept and acted on.

Ohio's recreational user rule

Ohio law gives owners who let people use their land for recreation without charge some protection from suits by those users (the recreational user statute, Ohio Revised Code 1533.181). Cities and park districts lean on it; so do some clubs and churches. It has limits, it does not cover every owner or every situation, and it does not cover a parking lot used by customers or employees at all. Treat it as a reason to be careful, not a reason not to be, and ask your own counsel what it does for you.

What inspections should produce

• A walk in March and a walk in September, with a phone: every crack, lifted edge, pothole, heaved post, algae patch and puddle photographed with the date on it.
• A one-page list of what was found, who was told, and what was decided.
• A work order or an invoice for each repair, with the date it was done.
• For hazards that cannot be fixed at once, cones, tape or a sign, and a photo of the cones.

Our October visit produces most of this: the chalked map, the photographs, the invoice for what was repaired, and a note of what was not and why. Keep it with the court's file. The file is the defense.

Which hazards are the ones

• Lifted crack edges. A crack that has opened and whose edge sits a quarter inch proud catches toes. On a court it is a membrane repair; on a lot it is patching.
• Potholes. Especially in lots used at night. Patch them the week they appear, and cone them until then.
• Algae and standing water. Slick when wet, and ice in winter. Washing, leveling and drainage.
• Loose or heaved net posts, fence bottoms, curb stops. Things people walk into or trip over.
• Lighting and striping. A lot where the stalls, the curbs and the accessible route cannot be seen at night is a lot that produces claims; restriping and a lighting check are cheap.
• ADA defects. An accessible stall on a slope, or with no aisle, is a hazard and a compliance problem at once. The ADA article has the rules.

What insurers ask for

In my experience: the inspection record, the maintenance invoices, the date of the last resurfacing or sealcoat, photographs of the hazard before and after repair, and whether the hazard was marked. An owner who can produce a folder answers the questions in an afternoon. An owner who cannot is reconstructing three years from memory.

The contractor's part

We carry general liability insurance and we can be named on a certificate for public and club work; ask for it with the proposal. Our repairs are documented on the invoice by location and method. And we tell an owner, on the walk and in writing, when something is a hazard that should be dealt with now rather than at the next resurfacing, because that note is as much for their file as for ours.