How to Respond When Someone Screams “But We’ll Get Sued!”

Posted by Miriam Axel-Lute on September 29, 2014

There are not a ton of things I read on the Internet that instantly make me want to hunt down the author and send him or her flowers.

But Charles Marohn's post "On Liability" on the Strong Towns blog was definitely one of them.

"Liability" is increasingly sucking the joy out of life. Everywhere you turn, things that are pleasant or good or fun or beautiful or healthy are being destroyed or disallowed because of the specter of "liability."

Stairs to a capital city's largest public space are closed for half the year. Children are prevented from getting exercise by riding their bikes to school or playing on school grounds except when school is in session. And on and on. This has long been a major peeve of mine, as I see the costs of the fear as generally being far greater than the potential costs of the theoretically dangerous thing.

But Marohn is the first person to make me believe that this was a phenomenon that can be fought. And his suggestion was as elegant as it is startling:

The next time you have an alternative plan that is opposed by the public safety people or the engineer for liability reasons, demand that the alternatives be sent to the only group that can really say with any credibility how much liability there will be: the city’s insurance carrier. And not the local broker – that dude has a decent chance of being a fool who wants to asphalt the entire entrance as well – but the actual underwriter. Chances are really good that they won’t have a problem with what you want to do. . . . I’ve done this many times: they never do.

I'll just reiterate that this makes me so happy. It feels like being given a magic spell. I mean, I'm sure it won't always work. But to know that things that are well thought out and have the ring of actual common sense about them can have a chance at all even after some lawyer says the dreaded "l" word is a bit heady. 

I'm thinking this is something that community developers could apply to their own sense of possibility within their projects, as well as community organizers and planners trying to do something as simple as increase playground access or improve health by getting children more active.

Have you felt backed into abandoning a plan because someone argued it would increase liability? Have you pushed back against that argument? Tell us about it.


(Photo by Flickr user gentle helen, CC BY-NC-SA.)

About the author more »

Miriam Axel-Lute is editor of Shelterforce and associate director of the National Housing Institute. Her email is miriam at nhi dot org.

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David Holtzman
7 Oct 14, 11:27 am

This resonates with me thanks to a couple of conversations I’ve had. In one case, when I was working as a county planner trying to promote the idea of a recreational bicycling and walking trail, one of the people who had property adjoining the trail route said he liked the idea. But he was concerned about liability, if someone on the trail ventured onto his land and got hurt. I explained that the state had a recreational exemption for property owners (they were protected from liability because they agreed to allow a public access trail through their property). A while later he again objected because of liability. It was like he had never heard me. Anyone can be sued, regardless of the likelihood of the lawsuit’s success. I suspect that’s part of the reason he continued to object. There is a small amount of risk people have to take, even if they are basically protected from liability.

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