Risk Management

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