MADISON - ST. CLAIR RECORD

The recent Fifth District decision to affirm judgment against the South Roxana Dad's Club for an eight-year-old boy's injury while riding his bicycle reminded me of a case with a far different conclusion.

In 2003, on a hot day in Cheshire, England, an 18-year-old named John Tomlinson went for a swim in a lake of a local park. Rushing into the water, he dove in head first, breaking his neck. He is now paralyzed for the rest of his life.

Tomlinson sued the Cheshire County Council, alleging it had not done enough to "protect against the accident." Several people drowned each year at the lake and the Council knew of the dangers.

"No swimming" signs were posted. Each year, over 160,000 visitors enjoyed the lake. As a result of the lawsuit, and fearful of future liability, the Council decided to close the lake.

It dumped mud into the water and on the beaches, and planted reeds to prevent access. After all, Tomlinson's attorney argued, the Council should have acted sooner to prevent "luring people into a deathtrap" and to protect against a "siren call strong enough to turn stout men's minds." Because the county knew about the danger, the lower court ruled in favor of Tomlinson.

The Law Lords took the appeal and reversed, ordering the case dismissed. The lead opinion held that whether a claim should be allowed hinged not just on whether an accident is foreseeable, but "also on the social value of the activity which gives rise to the risk."

Allowing Tomlinson's claim meant hundreds of thousands of people could no longer enjoy the park.

"[T]here is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty."

The Lords held that the county's failed efforts to prevent swimming did not establish negligence, but demonstrated how misguided concepts of justice hurt the public.

"Does the law require that all trees be cut down, because some youths may climb them and fall?" Lord Hobhouse asked. "Of course there is some risk of accidents.....But that is no reason for imposing a grey and dull safety regime on everyone," Lord Scott added.

Our judicial system has forgotten that lawsuits concern not only the parties to the litigation, but everyone in society. Who is protecting the interests of adults and children who want to play responsibly at South Roxana Dad's Club, but now cannot?

In the past thirty years, American courts have increasingly held that various types of playground equipment pose an unreasonable risk.

Now, a pile of dirt creates liability? The effect of such decisions is to outlaw "fun," because it is now fraught with fear of liability.

Schools have removed playground equipment, banned dodge ball and tag because of liability concerns. As a result, jungle gyms, diving boards, and seesaws are now relics of some past civilization. Those relics also represent lost freedoms for our children.

Meanwhile our children, rescued from the risks of roughhousing and accident, suffer from the far greater risks of obesity, drug abuse and depression.

No one wants to see a child injured while having fun on a playground, but part of the privilege of enjoying freedom means accepting individual responsibility for one's choices.

Time and again, however, individuals and organizations who are trying to benefit our community are instead hauled into court and sued into oblivion.

The general public is now afraid of our Courts and of our legal system, because anyone can sue anybody for anything and win. And, the fear of lawsuits materially alters how people live in a free society.

The rule of law was established to protect our freedom, to promote legal certainty and to be a safeguard against arbitrary governance. When a legal system finds liability in every possible activity of life, it becomes an arbitrary form of governance.

Instead of focusing on how a ruling will affect one litigant, Courts must weigh the affect on the community as a whole. This is to ensure that the rule of law remains as our forefathers intended, to protect our freedom and the freedom of future generations.