[hackerspaces] Insurance, liability and kids

[William Macfarlane]

This is a topic that's of great importance to me, and I think that there's
a little bit of inaccurate information in this thread.

Who am I, and where am I coming from?  I co-run a kids' hackerspace called
Parts and Crafts in Somerville, MA.  When Gui says "another space almost
got shut down because an organization was running a summer camp there,"
he's talking about us.  He's also mischaracterizing both the type and scale
of the problem, but which isn't actually much relevant to this particular
discussion.

A few things I want to correct, though:  there are not generally particular
building code requirements for having children in your space -- public
spaces are generally required to be pretty safe, with or without kids.
 That said, there are particular building requirements for certain kinds of
uses involving children -- mostly these requirements are triggered by kids
getting dropped off by parents who then leave them alone in your care, like
for classes or whathaveyou.

Building codes and requirements vary by municipality and they're hard to
get your hands on because the publishing of them is frequently controlled
by a totally insane monopoly that is somehow allowed to charge people to
have access to knowledge about the letter of the law.

These codes tend not to vary all that much, though, since they all derive
from an international standard.  Some cities are more "business friendly"
(read: lax in enforcement) than others, but there's not a huge amount of
variability here.

What does vary a lot more than the actual building code (which says, for
instance, that if you are running a "school" you need to have 2 routes of
egress from every part of the  building), is the part that defines what a
"school" is.  And in fact, practically, the only thing that actually
defines what your use-case is is the inspector who fills out the form when
you  apply for your certificate of occupancy.

The truth is, though, that building code stuff isn't a big deal.  Even
running an actual-legit-honest-to-god school doesn't actually trigger a
whole lot of requirements in this domain.  Two routes of egress, no lead
paint or asbestos, maybe needing a sprinkler system, maybe needing to have
your  fire alarm system monitored.  Having lots of people in your space is
likely to trigger more regulation than having a couple of kids.

These things aren't huge, but if you're running a tiny little hackerspace
in an old warehouse, you probably can't afford  to do lead paint abatement,
asbestos removal, install a new  fire alarm, etc.  And you certainly can't
afford to install sprinklers.  So unless you're saying "we want to run a
hackerspace for kids" you probably want to avoid these eventualities.

But all of this stuff is relevant if what you're talking about is  "running
a space for kids."  Again, probably defined by a set of things around kids
being dropped off by their parents  (how old are the kids?  how often do
they come?  how long do they stay?  what do they do?  same kids each week
or different kids?)

Generally this isn't what people are talking about when the issue of kids
at hackerspaces comes up.  Generally  people are talking about "can we run
a kids class every once in a while?"  or "can high schoolers be members?"
or "can members who are parents bring their kids sometimes?" All  of which
are much much more nebulous, and are mostly  unlikely to trigger specific
_legal_ requirements.

Which leaves us with the less-straightforward  liability/insurance
questions.  The only thing I will say with  100% confidence and certainty
about insurance is that, if you  are going to bother having insurance, you
need to tell the  insurance company all about the things that you are
doing.  They are insuring you for some specific set of things, and if  they
perceive that you are doing something that is not what  they're insuring
you for, you're going to have a hell of a time  collecting on it if you
need to.  Even if they should -- even if the accident _is_ the kind of
thing that your policy covers, if there's anything at all they can do to
say that you were in  violation and so they don't have to pay out,they
will.  So if you have an insurance company, be honest with them and tell
them all of the things that might matter.

The other really obvious point: with or without insurance, you should be an
 LLC (it's easy!) or a 5013c (people sometimes will randomly  give you
money!) so that there is a collective entity to have  the liability and go
bankrupt in case of emergency so  individual members don't have to.

I said "if you're going to bother having insurance" because I actually
don't think that the answer to this question is obviously "yes" for a lot
of spaces.  If your lease doesn't have an insurance requirement, then it's
up to you to make a

decision.  And this decision starts with deciding how much risk you want to
put the organization through, how much risk you want to put your members
through, and how much risk you want to subject other stakeholders (like
your landlord) to.

I think the argument that I see made by people involved with large, high
profile spaces make that says "if you don't have insurance and run your
space totally professionally and cleanly and above the board and entirely
respectable in all ways you are doing a disservice to the 'movement'" is
incredibly offensive to the wide world of hackerspaces that have existed in
the past and continue to exist that are small, scrappy, risky, illegal,
uninsured, squatted, etc etc.  It's fine for you to want to protect your
space/self, especially when you are associated with a large space with a
lot to lose, and be consequently risk-averse, but I think it's entirely
unacceptable to suggest that the above-the-board, professional model is the
only correct one for hackerspaces.  There are many spaces with, for
instance, no insurance, no rent, and no money.  Maybe something will happen
to them eventually and they'll stop existing because of liability problems,
but maybe that's okay because institutions don't need to last forever to be
awesome and good.

That said, to my mind, the compelling reason to have insurance (apart from
needing it to get a real, grown-up, commercial lease) is so that money from
medical bills can come from somewhere  in the event that someone in your
space suffers a serious injury.  Insurance isn't likely to keep you in
business after this happens -- either way you're probably going bankrupt --
but at least  the insurance company will help pay the medical bills.  If
someone hurts themself in an environment in which I'm supposed to be
teaching them, or helping them, I consider it at least partially my
responsibility.

Having kids in your space certainly increases the likelihood that you'll
need to go bankrupt and cease existing.  It's not  clear how much it
increases this likelihood.  People are traditionally terrible at making
rational decisions about unlikely-but-catastrophic possibilities.  My
advice is "don't try to make the decision rationally." If you're psyched
about working with kids, and you've told your insurancecritters and they're
okay with you running the occasional class or whatever, then do it.  And if
you have a space that doesn't have insurance (like maybe your garage) and
you're still psyched about doing stuff with kids, then, great!  Do it!  Be
careful and safe and sane and reasonable.  And be clear with families that
you're working with that you aren't a child care institution, don't have
liability  insurance, don't do background checks, that you're just a few
nerds who are really psyched about teaching kids awesome skills.

If you're not comfortable telling people that you don't have liability
insurance then you should probably have liability insurance.

Ask yourself what your risking.  If you're big, or established, or want to
be big and established, maybe you want to be risk averse.  If you're small
and scrappy and radical, maybe you don't want to bother insuring your
squatted hackerspace since you figure you'll be shut down in due time anyway

Artisan's Asylum, for instance, absolutely cannot and shouldn't be cavalier
about, well, anything -- it's too big, has too many members that love it
and use it, too much going on, and too many deadly things sitting around.
 It is also, by design, very high-profile.  It both has a lot to lose and
,lots of serious tools and objects that need to be taken seriously.

Parts and Crafts also, at this point, cannot and shouldn't be cavalier
about these things.  We're reasonably well-established, very public-facing,
are a number of grownup's full-time-jobs, and a number of kids
full-time-educational-institution.  There's a lot here that we want to
protect.

On the other hand, if your space is new, if it's small, if you trust
yourselves to be responsible and safe, and are willing to let the thing
poof out of existence in the event of a lawsuit, then maybe you should just
do what you want to do.

I want to back up a little bit, because I've been talking about lawsuits
and poofing out of existence.  I think that if you're working with kids or
strangers, safety is hugely important and you need to be conscious of it.
 You need to do your very best to keep people safe and lower the likelihood
of really bad stuff happening.  And if you're excited about working with
kids you're going to do that, and you're going to do it well, because
you're not monstrous, and you know that being in any way vaguely sort of
responsible for a kid losing an eye or a finger would feel really really
awful and you don't want to feel that way.

So I'm not too worried about major catastrophic injuries -- not because
they can't happen (they can, and do!) but because I think you (whoever you
are) can figure out how to stop them from happening.  What I'm worried
about, from your perspective, is the kid who burns himself on the soldering
iron, the kid who cuts herself with a hacksaw and needs stitches.  But I'm
not actually worried about those kids, because as an educator I will go  on
record saying that it's really important for kids to burn and cut
themselves.

I'm worried about when it turns out that one of those kids has a crazy
parent who sues you or tries to get you shut  down because you let their
kid use a hot or sharp thing.  And maybe you weren't even worried about
that because the kids mom is awesome and you know her, but then it turns
out the dad is a nutcase.

(For reference, because this happens, I've had interactions that felt like
they might end up with lawsuits around things as banal as not checking a
dad's ID when he came to pick his son up, and not letting a kid go canoeing
because I didn't trust him to be safe and responsible on the water)

These are things that can happen.  They aren't things that always happen,
or that happen a lot.  I've been corunning a kids' hackerspace for 8 years.
 We don't have a laser or a bridgeport or a table saw, but we have power
tools and soldering irons and x-acto knives and other fast-moving, sharp
and/or hot things that you can hurt yourself with.  We're pretty safety
conscious, but we let kids use the tools.  We're still here.  We haven't
had any major injuries involving tools (our worst injury was someone
shooting himself in the eye with a cork from a soda bottle with dry ice
inside -- he should have been wearing safety goggles, but he wasn't, he
shouldn't have been pointing it at his face, but he was trying to figure
out if there was a leak and forgot himself temporarily.  these things are
both his fault and ours, and I continue to be grateful for the fact that he
didn't permanently damage his eyeball.)  This is a digression.  Have lots
of pairs of safety goggles and put them everywhere and make people wear
them all the time.  Eyes are soft and squishy and incredibly useful.

So bad stuff can happen.  That doesn't mean you shouldn't work with kids.
 To a  certain extent, the fact that there is so much anxiety and  tension
and worry around kids using tools is a very compelling reason why it's
incredibly important to get kids into hackerspaces.   If we get enough kids
into spaces, maybe a generation from now we won't have quite so much of it.
 It's worth noting that the idea of kids using tools and building stuff
was, pretty recently, a very normal thing.  A lot of folks I know who are
my parent's generation spent a lot of their youth hanging out in auto-shops
scrounging parts and trying to learn something.

So it's really awesome and rewarding and good for the world to have kids in
hackerspaces.  This doesn't mean you should work with kids, either.  If you
want to work with kids you should know what you're getting into, and you
should approach it with open-eyes and a sense for what kinds of risks you
are and aren't willing to take.

And take heart!  One of your grownup members might miscalibrate the laser
and burn the building down!  Kids aren't the only possible source of
liability in your space..



On Wed, Sep 4, 2013 at 8:08 PM, Mark Janssen <dreamingforward at gmail.com>wrote:

> On Wed, Sep 4, 2013 at 3:00 PM, Christie Dudley <longobord at gmail.com>
> wrote:
> > Interesting thoughts on the subject. I know a bit about law, although I
> am
> > not a lawyer, no am I able to give legal advice.
>
> Thanks Christie for your thoughts...
>
> > Second of all, someone needs to tell that landlord that he leased out the
> > building and has relinquished control of it.
>
> This is not necessarily true.  While there may be case history to this
> effect, this does not mean that it couldn't be overturned at any
> moment.  There is good argument why a property owner has ultimate
> responsibility for what happens in her/his space countermanded only by
> explicit agreement.   If I lease out a building to music band and that
> band makes noises all hours of the night, then my property neighbors
> are effected.  The owner has to take responsibility for who s/he
> offers space to.
>
> > Unusually dangerous activity: When an activity is not the normal sort
> (such
> > as Matt's metal shavings problem) it falls into this category. Law
> students
> > love these because it's strict liability, fast track to liability. They
> > don't have to show that a duty was breached because it's inherently
> > dangerous.
>
> While lawyers like to jump on this bandwagon, it doesn't make it
> "sound".  Going up and down stairs is inherently dangerous.  The issue
> is:  is it either obvious that there is danger involved (to an adult),
> or has that danger been completely communicated?  After that, it's up
> to the individual, who also is an adult.
>
> > Assuming the risk: When kids play baseball, or whatever extreme sports
> kids
> > are into these days, they know that there's a danger and accept that
> there
> > is risk involved, but do it anyway. That's why you'll see "assume the
> risk"
> > crop up on waivers. It's how all the crazy shit that goes on in the bay
> area
> > (fire arts festival anyone?) could possibly happen. (And why Burning Man
> has
> > not been sued out of existence.) Oh, and kids (under 18) can't legally
> sign
> > waivers, although they can assume the risk.
>
> I don't think minors can "assume the risk".  Any contract engaged with
> a minor must have a guardian.
>
> --
> MarkJ
> Tacoma, Washington
> _______________________________________________
> Discuss mailing list
> Discuss at lists.hackerspaces.org
> http://lists.hackerspaces.org/mailman/listinfo/discuss
>



-- 
-Will
www.partsandcrafts.org
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