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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