Risk Management
Risk Management
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Highly litigious society
Potential injuries can be serious
Goal is to minimize liability
Lawsuits on the Increase
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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…
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Devastating to one’s career
Financially draining (to individual,
agency)
Self-perpetuating (lawsuits beget
lawsuits)
An ethical, professional responsibility
Types of Law: Criminal Law
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Intentional acts against the
public
Addressed in state and federal
penal codes
Violators are arrested, punished
Types of Law: Tort Law
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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
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Act that results in personal injury to
another
Carelessness in one’s duties
Four elements must exist
Duty
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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
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Actions in light of the duty owed
Standard of care to maintain hazardfree environment
Established by statute or industry
standard
Acts are measured against competent
person in similar situation
Act/Standard of Care
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Interns, volunteers, staff held to
same standard
Consider:
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Activity
Environment
Participants
Foreseeability
“Rule of Seven”
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Children < 7 years old
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Not responsible for their own welfare
Too immature to recognize dangerous
situations
Children 7 to 14 years old
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Are partially responsible for own safety
Can understand some warnings and
dangerous situations
“Rule of Seven”
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Youth 14 through 21 years old
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Mostly responsible for own safety
Have experience, able to make good
judgments
Have intellectual capacity to
understand risks, take
appropriate actions
Negligent Acts
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Omission
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Leader does not do something she/he
should do
Commission
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Leader does something she/he should
not do
Leader does something she/he should do,
but does it incorrectly
Nonfeasance
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Implies neglect of duty
Leader does not do something
she/he should do
Passive: Results from a lack of
leader involvement
Misfeasance
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Leader fails to act when she/he should
have acted
Leader does something improperly,
incorrectly
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Can be act of omission
Can be act of commission
Malfeasance
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Leader does something that
she/he should not have done
Action may be illegal
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Physical contact
Emotional abuse
Proximate Cause
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Actual cause/direct result of the
injury
Must be shown that the action
caused the injury
Intervening act eliminates
proximate cause
Injury/Damage
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Actual injury to a person
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Damage to physical property
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Physical injury
Emotional injury
Psychological injury
Building
Equipment
Interpretation differs by state
Supervision
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Duty to supervise
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Depends on relationships
Depends on level of duty
(standard of care) owed to
participant
Recreation and leisure settings,
participants require supervision
Supervision
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In loco parentis
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Leader acts in place of the parent or
guardian
Leader must provide a higher quality
of care than parents/guardian
General Supervision
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Leader oversees broad area
Focus is on conduct of participant or
physical environment
Visual, voice contact easily maintained
with participants
Transitional Supervision
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Used when a situation calls for a
change in level of supervision
From general to specific or specific
to general
Specific Supervision
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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
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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
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Knowledge
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Know participants, activity, environment
Age
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Must be appropriate for activity
(e.g., minimum age for lifeguards)
Is associated with maturity level
Supervisor Competence
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Experience
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Choose the right person to supervise the
activity
Make sure the leader has done this before
Credentials
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Certifications, training completions
Documentation indicating qualifications
Supervisor Competence
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Attentiveness to duty
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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
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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
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Manage participant behaviors
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Maintain control of group through
behavior management techniques
Maintain safe activity conditions
Render emergency care
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Provide aid in the case of emergency
Activate EMS
Supervisor Functions
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Enforce rules equitably
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Be alert to dangerous conditions
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Behaviors
Staffing
Activity
Facility
Equipment
Unexpected hazards
Supervisor Functions
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Maintain responsibilities off premises
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Adapt to new environments
Trips to other facilities require supervision
Develop, utilize a supervision plan
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Should be a written plan
Educate, remind staff of policies
Use as guide for unexpected situations
Conduct of the Activity
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Knowledge of participants
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Readiness for activity
Developmental abilities
Previous experience
Physical condition
Physical/emotional capabilities
Motivation
More…
Conduct of the Activity
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Knowledge of the activity
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Equipment
Objectives
Rules, necessary skill levels
Instruction
Safety concerns
Sequencing, progression
More…
Conduct of the Activity
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Knowledge of the environment
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Space (indoor/outdoor)
Potential hazards
Layout (traffic flow)
Preferred surfaces
Weather
More…
Facilities and Environment
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Agency liability
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Maintenance of facilities
Leader liability
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Using unsafe premises
Conduct of the activity
Choices in Unsafe Areas
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Stop the activity
Modify activity so hazard is
not an issue
Make temporary repair, warn
participants of hazard,
continue play
Minimizing Risks
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Conduct periodic inspections of
space, equipment
Inspect environment prior to activity
Adapt to external variables
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Weather
Prior events
Other conditions
Risk Management Forms
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Limit liability of employees and agency
Used for public information purposes
Know the types and functions of forms
Proper Forms
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Legible
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Written in clear language
Consider validity
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10-point font or larger
Contracts
Dated and signed
Read aloud to participants before they
sign
Types of Forms
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Accident/Incident reports
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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
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Assumption of Risk/Agreement to
Participate
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Must be detailed
Should identify, name activity-specific
hazards
Include written expectations of participant
behaviors
Types of Forms
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Parental (guardian) permission
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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
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Media release
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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
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Medical history
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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
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Release/Waiver
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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