Last Child in the Woods: Saving Our Children From Nature-Deficit Disorder (33 page)

Even with the creation of many such play areas, families and neighborhoods will still face an array of laws, regulations, and private restrictions on outdoor play; but options exist.

A private neighborhood could potentially overcome liability issues by following the lead of the Skate Park Association of the USA, a group started by a Santa Monica mom in 1996. Let’s say a skate park joins the organization. The fee is currently $40 a year for private parks and $120 a year for city parks. Individual skaters sign up for a nominal fee. In return, the skater receives $100,000 excess medical coverage while in a sanctioned park or anywhere else, and $1,000,000 liability insurance in the park. This arrangement suggests interesting possibilities for more natural play: the Sierra Club or some other major environmental organization could someday offer a similar group insurance policy.

Another option is that every family, with or without children, consider increasing its liability insurance coverage. The American Insurance Association suggests that a standard homeowner’s insurance policy will cover liability for, say, a tree-house accident, but homeowners should still check their coverage. The typical homeowner policy carries on-site accident coverage of only $100,000. Some insurance experts recommend buying extra liability insurance. The price of an umbrella policy, providing $1 million worth of coverage, to accompany a homeowner policy, is, in fact, modest—usually about $200 a year; add another $50 and gain an extra million in coverage. Some umbrella policies will cover empty lots, too. The problem here is if the bar is set at $1 million, someone’s going to sue for $2 million. Where, short of legal reform—or a fortified system of peer review to stop frivolous lawsuits—does it end?

“Legal fear has infected the culture,” argues Philip K. Howard, author of
The Death of Common Sense
and
The Collapse of the Common Good
. Howard is founder of Common Good, a bipartisan coalition with advisory board members ranging from conservative to liberal, from Bill Bradley and George McGovern to Newt Gingrich and Alan Simpson. Howard wants to help restore reliability to law—to come up with ways to determine acceptable or healthy levels of risk. “Polls and focus groups show that educators will do almost anything to avoid the unpleasantness of legal hearings,” says Howard.

In July 2005, the
South Florida Sun-Sentinel
reported that Broward County schools had erected “no running” signs at 137 elementary schools, as one of several steps to cut down on injuries and lawsuits. Playground merry-go-rounds and swings were already history. “They’ve got moving parts. Moving parts on equipment is the number one cause of injury on the playgrounds,” explained Broward’s safety director, who ordered the no-running signs. And cement crawl tubes? Gone. “The longer they are, the higher possibility that a vagrant could stay in them,” he explained. Is such fear warranted? Depending on which study one chooses to believe, in the United States, the public’s urge to sue is falling, holding
its own, or rising after a brief hiatus. Uncertainty about such statistics is aggravated by the fact that most lawsuits are settled out of court and are poorly tracked. And no one keeps track of the number of
threatened
lawsuits—which may have more impact on public behavior than judges and juries. In fact, some consumer attorneys attribute ulterior motives to some public officials who raise the specter of potential lawsuits, which may be easier and cheaper than investing public funds in, say, new playgrounds or lifeguards. Whatever the truth, perception rules.

Confronting this perception requires action on several fronts: the introduction of “comparative risk” as a legal and social standard; new applications of insurance; and the design and legal protection of public play areas.

Common Good calls for systemic reform that transcends the current definition of tort reform, which focuses almost entirely on capping the size of awards in lawsuits. True, sometimes it takes a huge settlement to change the behavior of a powerful offender. But capping damages or blocking access to the courts does little to reduce the number of lawsuits, and, according to Howard, protects only one side: “That approach lacks our guiding principle: a focus on society as a whole.” Common Good is calling upon judges and legislatures to create clearer standards on who can sue for what. Among other proposed changes, Howard calls for the creation of public-risk commissions that would examine areas of our lives that have been radically changed, “such as our enjoyment of outdoors and children’s play.”

Great Britain is arguably moving faster toward this goal than the United States. In 2003, in England, an eighteen-year-old named John Tomlinson dived too sharply at a public lake and broke his neck. The Cheshire County Council had been aware of the risk; had already posted “no swimming” signs and planned to close off the lake by dumping mud on the beaches and planting reeds. But before the barrier of reeds was planted, Tomlinson took his dive. His lawyer argued that the Cheshire Council should have acted sooner, and Tomlinson won. At the
appellate level, the decision was overturned; the court declared that a claim should be hinged not just on whether an accident is foreseeable but also on “the social value of the activity which gave rise to the risk.” Permitting Tomlinson’s claim would deny hundreds of thousands of people enjoyment of the park. The court offered this common-sense summary: “There is an important question of freedom at stake. . . . Does the law require that all trees be cut down, because some youth may climb them and fall?”

While we wait for legal reform, environmental attorney Brian Schmidt has an idea that just might help. Schmidt is an advocate with the Committee for Green Foothills, an organization working to protect local natural environments in the South San Francisco Bay Area. To liberate natural play, he suggests the creation of what he calls a “Leave No Child Inside Legal Defense Fund,” a foundation that would pay the legal defense costs of select institutions and individuals who encourage children to go outdoors but are then hit with frivolous lawsuits. Volunteer lawyers for the Defense Fund would focus on the most frivolous, high-profile claims, or those claims that would establish the worst precedents. He suspects that the outdoor industries would be interested in funding such a foundation. “Obviously, regardless of how successful this idea could become, it will never cover all the costs of defending against all the frivolous lawsuits,” he adds. “Still it could help, and just the fact that a defendant knew it was possible to recover costs might make the defendant less likely to settle.” It would also send a public message that natural play is still valued.

The legal tangle of outdoor play will be one of the most difficult challenges in the fourth frontier. But to encourage a host of other positive changes to take place, the barriers of a litigious society must be lowered.

“In the past, if a child or teen broke an arm on the sidewalk, in a neighbor’s yard, or at the school yard, Dad’s insurance would pay the
bills,” says Jim Condomitti, a father who lives in Escondido, California. “Our parents accepted responsibility for our accidents, careless behavior, or deliberate actions. Today, as seven-figure monetary awards dance in our heads, we open the Yellow Pages and search for attorneys who can fish in the deep pockets of a school district, a city, or an insurance company.”

Indeed, in many cases, the litigious bark may be worse than the bite. Condomitti found this out when his community began to crack down on playing ball in the street. (Such play may not involve nature, but at least it’s based on direct rather than simulated experience and it’s outdoors.) Condomitti pored over the vaguely worded legal codes of several municipalities, and found few if any legal grounds to ban such play, unless children actually block or impede the flow of traffic. “Parents and kids shouldn’t give up so easily,” he says. The good news is that they don’t have to.

Bad law can be rewritten; protections from litigation strengthened; new types of natural recreational areas invented—and even new kinds of cities and towns created, where nature is welcome and natural play the norm—for children and adults.

W
HEN
J
ULIA
F
LETCHER
, Janet Fout’s daughter, moved from West Virginia to Washington, D.C., to attend George Washington University, she operated a refreshment cart at the Kennedy Center and sometimes took it to the roof terrace, where she found the view of the Potomac River calming. Early one evening, she noticed a man there with his two young children. The girl and boy were paying close attention to their father, who was watching a circling raptor.

“It’s not a turkey vulture,” he said, “but you’re close. What else could it be?” The kids looked heavenward again.

“A hawk,” pronounced the boy.

“Warmer,” replied Dad, “but what kind of hawk?”

“A white-headed hawk?” inquired the daughter.

“Nope. What kinds of hawks are near the water?”

As Julia tells this story, she was about to burst with the answer when the son said:

“One that eats fish?”

“Exactly. It’s an osprey,” their father said. “Now, how can you identify it next time?”

At this point, Julia moved on with her work, but continued to think about the conversation. Because her mother took time to explore nature
with her, she identified with the children and their questions. “And I was heartened that even in a city like Washington, there were other children who would grow up like I did,” she says. “Until that moment, all evidence of this had been to the contrary, since no one I know at the university can identify an osprey. Nature in the city is nature at her most tenacious—in some ways that makes it my favorite kind of nature.”

Today, a growing number of ecologists and ethicists are challenging the assumption that cities have no room for wildlife. Some would have you imagine your city as a “zoopolis.” That’s the word—rhymes with “metropolis”—that Jennifer Wolch, a professor at the University of Southern California and director of the Sustainable Cities Project, uses when she imagines areas in cities transformed into natural habitats through land-planning, architectural design, and public education.

To most people, that would seem like a stretch. Just listen to our language: We talk about “empty land” at the urban fringe (far from empty, it teems with non-human life), and “improving” land (grading and filling and topping it with Jiffy Lubes). Most urban theory ignores non-human species. So do even the most progressive architecture schools, even as those graders keep scraping the hills. Yet, says Wolch, a zoopolis movement, though poorly documented, is emerging in many U.S. cities, often for practical reasons. For example, conventional landscaping produces biologically sterile, water-dependent environments. This has led some cities in arid regions to encourage native plant species, which need less maintenance and contribute to wildlife habitat.

Central to this notion is the psychological need for biophilia—the life-enhancing sense of rootedness in nature. Daniel Botkin, president of the Center for the Study of the Environment, in Santa Barbara, asserts: “Without the recognition that the city is of and within the environment, the wilderness . . . that most of us think of as natural cannot survive.” John Beardsley of the Harvard Design School expresses the same hope for a new kind of urban and suburban landscape in which our children and our children’s children could one day grow up:

We need to hold out for healthy ecosystems in the city and the suburbs; we need to insist that culture—however much it might flirt with simulation—retain a focus on the real world, its genuine problems and possibilities. At the mall or the theme park, what does this mean? Can we imagine a mall that is also a working landscape, that is energy self-sufficient, that treats its own wastewater, and that recycles its own materials? Can we imagine a theme park that is genuinely fun and truly educational and environmentally responsible all at once? I don’t see why not. We have created the “nature” we buy and sell in the marketplace; we should certainly be able to change it.

Preserving islands of wild land—parks and preserves—in urban areas is not enough, according to current ecological theory. Instead, a healthy urban environment requires natural corridors for movement and genetic diversity. One can imagine such theory applied to entire urban regions, with natural corridors for wildlife extending deep into urban territory and the urban psyche, creating an entirely different environment in which children would grow up and adults could grow old—where the nature deficit is replaced by natural abundance.

The notion of zoopolis is not as new or utopian as it might sound. In the 1870s, the “playground movement” valued urban nature more than swing sets or baseball fields; nature was presented as a health benefit for working-class Americans, particularly their children. This movement led to the nation’s largest urban parks, including New York’s Central Park. Closely associated was the “healthy cities” movement in the early twentieth century, which welded public health to urban design, even codifying how many feet parks and schools should be from a home.

Then other forces interceded. Cities continued to build a few large urban parks in post–World War II development, but usually only as an afterthought—and these were increasingly less natural and more attuned to organized sports and the threat of litigation. Neither children
nor wildlife have been of much concern to urban planners in recent decades. Arguably both were given more consideration in the early part of the twentieth century. Since then, playgrounds and parks have not kept up with population growth in most cities (in terms of acreage covered). At the same time, these public spaces have become increasingly domesticated, flat, lawyered, and boring—and designed without taking wildlife into consideration. Wolch has noted how the debate about sprawl does not concern itself with wildlife; the new urbanism tends to define sustainability as a question mainly of energy resources, transportation, housing, and infrastructure.