Risk Management

Highly litigious society Potential injuries can be serious Goal is to minimize liability

Lawsuits on the Increase Increased participation in recreation Increase in year-round activities New and sophisticated equipment Social attitudes encourage and expect people to sue others Increased access to legal services

Lawsuits Can Be… Devastating to one’s career Financially draining (to individual, agency) Self-perpetuating (lawsuits beget lawsuits) An ethical, professional responsibility

Types of Law: Criminal Law Intentional acts against the public Addressed in state and federal penal codes Violators are arrested, punished

Types of Law: Tort Law Deals with civil issues People seek to be compensated Acts based on breach of contract Can be sued by anyone for anything at any time

Negligence Act that results in personal injury to another Carelessness in one’s duties Four elements must exist

Duty Obligation to another based on a legal relationship Special relationship between parties (coach/athlete, lifeguard/swimmer) Leaders have duty to keep others safe Duty requires warnings about hazards

Act/Standard of Care Actions in light of the duty owed Standard of care to maintain hazard- free environment Established by statute or industry standard Acts are measured against competent person in similar situation

Act/Standard of Care Interns, volunteers, staff held to same standard Consider: Activity Environment Participants Foreseeability

“Rule of Seven” Children < 7 years old Not responsible for their own welfare Too immature to recognize dangerous situations Children 7 to 14 years old Are partially responsible for own safety Can understand some warnings and dangerous situations

“Rule of Seven” Youth 14 through 21 years old Mostly responsible for own safety Have experience, able to make good judgments Have intellectual capacity to understand risks, take appropriate actions

Negligent Acts Omission Leader does not do something she/he should do Commission Leader does something she/he should not do Leader does something she/he should do, but does it incorrectly

Nonfeasance Implies neglect of duty Leader does not do something she/he should do Passive: Results from a lack of leader involvement

Misfeasance Leader fails to act when she/he should have acted Leader does something improperly, incorrectly Can be act of omission Can be act of commission

Malfeasance Leader does something that she/he should not have done Action may be illegal Physical contact Emotional abuse

Proximate Cause Actual cause/direct result of the injury Must be shown that the action caused the injury Intervening act eliminates proximate cause

Injury/Damage Actual injury to a person Physical injury Emotional injury Psychological injury Damage to physical property Building Equipment Interpretation differs by state

Supervision Duty to supervise Depends on relationships Depends on level of duty (standard of care) owed to participant Recreation and leisure settings, participants require supervision

Supervision In loco parentis Leader acts in place of the parent or guardian Leader must provide a higher quality of care than parents/guardian

General Supervision Leader oversees broad area Focus is on conduct of participant or physical environment Visual, voice contact easily maintained with participants

Transitional Supervision Used when a situation calls for a change in level of supervision From general to specific or specific to general

Specific Supervision Used when instruction is involved Used when participants are low skilled Leader is in direct contact with participants Close visual and voice contact must be maintained

Leaders as Supervisors Owe a legal duty to participants Are viewed as a supervisor and should act as such Will be measured against a reasonable and prudent professional

Supervisor Competence Knowledge Know participants, activity, environment Age Must be appropriate for activity (e.g., minimum age for lifeguards) Is associated with maturity level

Supervisor Competence Experience Choose the right person to supervise the activity Make sure the leader has done this before Credentials Certifications, training completions Documentation indicating qualifications

Supervisor Competence Attentiveness to duty Alert, attentive to responsibilities Be prepared to respond to questions that arise after an incident: “What were you doing when…?” Attentiveness is required in all settings Level of attentiveness changes based on type of supervision

Supervisor Location Supervisor (leader) must be accessible to participants Be located to manage emerging problems Location selection must be purposeful, deliberate Conscious choice of location relative to participants, activity, environment

Supervisor Functions Manage participant behaviors Maintain control of group through behavior management techniques Maintain safe activity conditions Render emergency care Provide aid in the case of emergency Activate EMS

Supervisor Functions Enforce rules equitably Be alert to dangerous conditions Behaviors Staffing Activity Facility Equipment Unexpected hazards

Supervisor Functions Maintain responsibilities off premises Adapt to new environments Trips to other facilities require supervision Develop, utilize a supervision plan Should be a written plan Educate, remind staff of policies Use as guide for unexpected situations

Conduct of the Activity Knowledge of participants Readiness for activity Developmental abilities Previous experience Physical condition Physical/emotional capabilities Motivation More…

Conduct of the Activity Knowledge of the activity Equipment Objectives Rules, necessary skill levels Instruction Safety concerns Sequencing, progression More…

Conduct of the Activity Knowledge of the environment Space (indoor/outdoor) Potential hazards Layout (traffic flow) Preferred surfaces Weather More…

Facilities and Environment Agency liability Maintenance of facilities Leader liability Using unsafe premises Conduct of the activity

Choices in Unsafe Areas Stop the activity Modify activity so hazard is not an issue Make temporary repair, warn participants of hazard, continue play

Minimizing Risks Conduct periodic inspections of space, equipment Inspect environment prior to activity Adapt to external variables Weather Prior events Other conditions

Risk Management Forms Limit liability of employees and agency Used for public information purposes Know the types and functions of forms

Proper Forms Legible 10-point font or larger Written in clear language Consider validity Contracts Dated and signed Read aloud to participants before they sign

Types of Forms Accident/Incident reports Document treatment of injuries Provide agency statistics Assist in legal situations Document an accident where person was injured Document a ‘near miss’ incident Document an incident where property was damaged

Types of Forms Assumption of Risk/Agreement to Participate Must be detailed Should identify, name activity-specific hazards Include written expectations of participant behaviors

Types of Forms Parental (guardian) permission Solicits permission for children to engage in particular activity Used as public relation tool May use generic or activity-specific forms If permission form is not received—do not allow the participant to engage in the activity

Types of Forms Media release Protects privacy, property interests Allows unrestricted use of photos, video, or other recording during an activity Generally not required in public place Special considerations for protected classes (e.g., children, people with developmental disabilities, cognitive impairments)

Types of Forms Medical history Should be accessible at all times Completed by a physician Includes insurance information, permission-to-treat statement Authorizes medical treatment in absence of parents

Types of Forms Release/Waiver Based on contract law Must be age of majority to sign Participant indicates understanding of the risks involved in the activity In spite of this knowledge, participant chooses to participate Participant agrees not to hold leader, agency liable for negligence