Who’s liable for the public ice rink in Plymouth?

Feb. 06--PLYMOUTH -- The outdoor skating rink installed at Siever Field became a thorn of contention during the Select Board's Tuesday night meeting as it was revealed that the Plymouth Youth Foundation, which authored the project, has been operating without a memorandum of understanding from the board and, more importantly, liability insurance.

Plymouth Youth Foundation member Ethan Kusmin told the board that he just found out that there is an MOU that hasn't been signed by his group, and that the board hasn't officially accepted the skating rink as a gift, thereby transferring liability of the ice rink to the town.

While Town Manager Melissa Arrighi assured Kusmin that, since the property is town owned, his group is safe from any liability for the rink, two local attorneys who asked not to be identified, confirmed that both the owner and the operator can be legally named in a lawsuit pertaining to that rink. In this case it would be the Plymouth Youth Foundation and the town who could be sued.

One of the attorneys further cautioned that, if the Foundation signs an MOU agreement with the town promising to take care of the rink or remain involved in its use, that liability doesn't go away even if the rink is successfully gifted to the town. In short, the Foundation has a liability problem if the town doesn't accept the gift and if it signs an MOU that promises the group will stay involved in the project.

If the town accepts the rink as a gift, as Kusmin requested, the town would then own the rink and be responsible for it. The question then is who will maintain or oversee it; therein lies yet another liability snag.

In the meantime, the rink is what lawyers refer to as an "attractive nuisance," or something on a property that attracts children that can cause injury. Attractive nuisance is the term used in these injury lawsuits.

Kusmin said his wife is an attorney and added that he is extremely concerned that the cart was placed before the horse in this project. He urged the board to accept the rink as a gift, thereby relieving his group of this weighty issue.

The Plymouth Youth Foundation cannot possibly afford liability insurance or a lawsuit, he said after the meeting; the organization has all of $8,000 in its account. The plan has been all along to have the rink be town owned and under the town's insurance policy.

The question remains why was the issue of liability addressed at this late date, after the rink was installed?

Select Board member Shelagh Joyce said she's been asking this question for one-and-a-half years and gotten no answers. She said she's also been asking for more detail on how much the project will cost the town in terms of town workers' involvement and the Plymouth Youth Foundation continued oversight.

"We were under impression the town accepted the rink," Kusmin added. "We had been working under the impression that we had no liability in this. We were led to believe the MOU went hand in hand with the acceptance of the location. I'm a general contractor and when they sue, they sue everybody; they start at the top and work their way down. We are at the top of that. We're trying to figure out how we got there."

Arrighi noted that the Select Board has only, as of now, voted to approve the location of the ice rink; the gift of the rink has yet to be accepted.

And the board wasn't amenable to accepting and the liability attending it without more concessions being made such as the Foundation's continued involvement in the rink.

Select Board member Betty Cavacco, who is a prior president and founder of the Plymouth Youth Foundation, said the process has become convoluted. She said her organization raised money to purchase the $13,000 rink, volunteered countless hours to make this project a reality and has made repairs when needed.

Select Board member Anthony Provenzano said he was tasked with drafting the Memorandum of Understanding for the project and is concerned that proper governance is involved, to wit: the Foundation's continued involvement in the project is important. The Plymouth Youth Foundation ought to have "boots on the ground" during the ice rink's operation to address any issues that surface, he added.

"Somehow we got to the point where we don't know who is going to take care of it," Kusmin responded. "I'm not saying we don't want to. I just don't know anyone who knows about rink maintenance. I don't know that we are necessarily prepared to do that."

"You came to us, not the other way around," Provenzano said. "We didn't seek this out. It was brought to us under packaging and sold to us far differently than how it turned out."

Cavacco balked at how complicated the issue has become.

"It really isn't meant to be this difficult," she said. "We don't have Zambonis out there. We have a rink committee with nine people on it. So it's not like we're maintaining it professionally. We've have a lot of volunteers. My family has spent countless hours down there. It's safer than having our kids go onto a pond. It's a regulation-size rink. The community has really put such effort into this. The community is really who is policing this. The Zamboni is not going to come down Liberty Street and clear the ice. It's four- to six- inches of water. If it snows we shovel it."

The Department of Public Works erected the ice rink and has, apparently, agreed to store it during the off season. Cavacco said she thought the ice rink had already been gifted to the town and these issues were squared away.

Joyce countered that she thinks the rink is a wonderful addition to the town, but cautioned that town-owned projects can include town-owned costs and liabilities. She said the project was not properly planned and that is why she is concerned.

As was noted, attorneys caution that the Foundation will still be liable, and potential party in a lawsuit, should it sign an agreement in which the organization shoulders oversight or ongoing responsibility or involvement in the project, as Provenzano suggested.

Select Board Chairman Ken Tavares said the Board and the Foundation would be hammering out that MOU agreement sometime early next week to put the issue to rest.

In the meantime, the ice rink has been closed due to warm weather.

Follow Emily Clark on Twitter @emilyOCM.

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