Risk Management Understanding and Reducing Liability Exposure

Foreseeability is the key to Liability  Foreseeability means that evidence is available that a particular injury causing incident is likely to happen again. In other words, there is a probability of a re-occurrence.  In other words, you should know or those in your field (fellow professionals) should know that these injuries occur and certain precautions must be taken  Act of God illustrates foreseeability. An Act of God is a natural occurrence that is unforeseeably possible.  If you can’t do it right, don’t do it at all.  Good common sense makes good legal sense.

Reasonableness Standard You will be held to a standard of: What will a reasonable and prudent professional do under the circumstances?  Expects you (as a professional) to balance the foreseeable risk of injury against the corresponding burden to alleviate hazards.  Reasonableness is a two-way street. The recreationist must also act reasonably in looking out for their own safety (exceptions: those of tender years)

Negligence Formula Neglect or carelessness falling below minimally acceptable level of reasonableness (common negligence) 4pt formula (all elements must be present)  Standard  Breach of Duty  Causation  Damages  Standard/Duty ___ you must owe the plaintiff or the public some standard of care (maybe be written policies or customary practices, etc..  Breach __ Act of commission or omission that violated that duty owed  This violation of duty caused the plaintiff to be injured  The injury/damage was a consequence of the defendant’s actions

Varying standards of care  Invitee : someone who is invited or encouraged to use the premises  Licensee : not invited – merely tolerated  Trespasser: anyone who is unauthorized to be on the premises.  Invitee standard of care: to inspect, repair or remove known or discoverable hazards within a reasonable period of time. Inspection is a burden of precaution. Adequate warning makes a hidden hazard open and obvious. No duty to warn of open and obvious hazards. Communicates the danger to the user.  Licensee standard of care: no duty to inspect, guard or make safe… only warn  Trespassers standard of care: No duty to inspect, guard, warn or make safe…except for ultra- hazards. No man traps!  Not required to ensure safety, only make premises reasonably safe.

Gross Negligence  Willful and/or wanton misconduct : Willful misconduct is intentional wrong doing. Wanton misconduct is reckless conduct that demonstrates an utter disregard for the well being of others.  Attractive Nuisance Doctrine : Child trespassers of tender years cannot appreciate the danger…so defendants are held to a higher standard/duty of care; that of making the premises reasonably safe.  The KS Recreation Use Statute gives landowners offering access to property for recreation, protection to a level of gross negligence…or all users are owed the standard of care due only a trespasser

Adequate Warnings  Takes a hidden hazard and makes it open and obvious  Better to repair, remove or replace but warn adequately if these actions are not feasible.  Color of sign important (blue not a warning color)  Message must be clear, easily understood and adequately convey danger.  Other actions to limit scope in unworkable situations: close park at dusk, or define an out- of-bounds area (e.g. skiing, swim beach).

Immunity  At one point (long past) government enjoyment absolute immunity  Today governments are liable like private citizens for proprietary functions. Tort Claims Acts spell out that government is liable, but also provide exceptions:  discretionary ( deciding/ policy) functions or  protection to a level of gross negligence

Participant Liability  A participant will be liable for injuring another participant when the injury is caused by wanton disregard of a safety rule, not mere negligence  Treat 3 rd parties like defects on the land, repair/remove – alleviate the hazard  There is no duty to warn of criminal activity (that is an open and obvious hazard), but facility design should not make it worse.  An agency is liable for its agents (vendors, volunteers)  Should have similar standards for training of volunteers  If a coach were to instruct players to harm another player on the opposing team (willful = gross negligence) but if an opposing player just gets hurt from play (no negligence).  General vs. Special police protection: Generally agencies are immune from liability for general police protection.. that which is provided to the general citizenry.  Issues testing this approach, special police protection at events. (Dodger’s fan).  Special protection was evident at the Master’s with police escorts for players at key areas…but not course wide.  Having adequate police protection cannot be expected to prevent every injury as many occur too quickly, or are not foreseeable to act in time to prevent.

Program Supervision Liability  Do staff have adequate skills and training to perform professionally?  Certification: helpful in ensuring a starting level but inadequate proof of skill and ability to perform at a later time. Re-training vital to ensure preparation.  Hot Spots  Lack of adequate supervision numbers  Lack of adequate preparation/training  Failure to enforce regulations  Inappropriate matching of skill levels to venue or other participants. Incorrect progression  Inappropriate post injury procedures (incorrect or not prompt) If first aid is initiated, must be done so non negligently. Avoid quasi-medical demeanor

Assumption of Risk defense  Assumption of risk assumes a voluntary encounter with known risks; an assessment by the individual that the benefits of participation outweigh the risk  Duty of defendant to convey adequate information regarding risks  Sec IV Liability and Risk Mgmt links Sec IV Liability and Risk Mgmt links  NOLS assumption of risk form NOLS assumption of risk form  See also:  Contributory, Comparative  Risk Mgmt Matrix  Risk Mgmt Plans

Waivers:  A waiver is a type of assumption of risk contract, whereby an individual exchanges the defendant’s common negligence for the opportunity to participate.  In a sense is a contract that allows a party to be negligent towards another. (common level).  Waiver contracts are unenforceable against children as children lack the legal capacity to enter into contracts  individual assumes risk (common negligence level)  Waivers are narrowly construed and are found to be void as against public policy in some cases.  The value of a waiver is informed consent.  Best use of a waiver is by private enterprises and adult participants  Do not confuse waivers with assumption of risk forms (not contracts) or medical release forms (used to allow treatment) by not parental supervisors  Parents cannot contract away the rights of children…who can sue when they reach the age of majority  Waivers can lower the standard to gross negligence but recreational use statutes are the preferable approach for public agencies.

General  Most legal problems start out as public relations problems:  Individuals don’t sue people they know, like and respect (generally)  Is your agency projecting an image of due care?  Without admitting liability, a little tea and sympathy goes a long way in forestalling potential litigation  Avoiding out of court settlement is often desirable so as to not set a precedence (but that decision if often made by the Insurer, not the Agency).  You will be sued !!  Using the strategies in this presentation though, should reduce your likelihood of losing.  Bench vs. Jury trial each have different advantages. Most plaintiff layers would prefer a bench trial.  Defendant- party being sued  Plaintiff – Complaining party (party doing the suing)