Recreation businesses and organizations face daunting expectations daily to provide services and activities which entertain, stimulate, and engage the public in a variety of ways. Many of the activities and programs offered imply that risk is inherent and injuries imminent by the nature of the activity, such as rock climbing, skateboarding, contact sports and white-water rafting.
Consent And Notice Are Not Enough
Recreation businesses and organizations may assume that an awareness of activities means that participants may be equally aware of the dangers and risks–but not all risks are clearly understood because of age, inexperience or other reasons. Further, assuming a participant knows the real dangers inherent in an activity or sport is a danger to the agency. Therefore, the professional provider has an even higher stake to make certain that risk is somehow managed without removing the core of any service or activity, thereby diminishing its reward for the participant, losing its market appeal, etc.
Simply posting a warning sign is not enough, as litigation continues to make clear. (Recently, a Connecticut lawsuit made this point again in Hanks v. Powder Ridge Restaurant Corporation et al (SC 17327).) More can–and must–be done. It is often not the activity that presents the gravest danger, but surrounding conditions, environments, locations, adjacencies and even staff judgments that may appear to be unrelated to the service that pose a risk. It is these more-obvious factors that can often be the culprits in a liability lawsuit, where the reasonably prudent professional person standard is used to make a case and prove negligence.
In the recreation field, providers have an affirmative obligation to make those who use their services aware of the inherent risks of their involvement–not to deter or frighten, but to inform and protect them and the agency. While providers can never adequately remove all risk, they can reduce it, manage it, and try to mitigate its effects. Tell participants ahead of time what may occur in the way of injuries and accidents involved in a particular activity.
Much has been written about the best way to obtain consent or agreement ahead of time so that the organization reduces its risk, and therefore controls and manages its liability exposure. (“Consent” is a topic for another day when we can discuss the most effective way to obtain participation agreements that will better stand up in court and give you a fighting chance.) And yet, many organizations do not have a standardized way to evaluate risk, to assess what is present in the environment and the activity that may lead to legal problems if not ameliorated as soon as possible.
I propose a proactive approach of facing head-on the idea that risk can and must be handled, managed, reduced, and explained in its fullest detail in advance of any involvement. Failing to do so leaves recreation businesses open to serious, unnecessary lawsuits, along with the attendant costs in money, time and reputation.
One thing is certain: risk is never completely avoided. The best that organizations can do is to limit, plan for, and try to prevent or reduce it and its effects. One way to do this is to put in place a system of checks and assessments that need not be onerous, but which make staff aware of the need for reporting conditions that may contribute to the agency’s liability exposure.
While professional risk managers can be consulted about specific ways to prevent loss and liability, there is some element of management indifference that may affect judgment if only outsiders are viewing the ways to reduce risk. Those employed by the organization have a greater stake in seeing that it is protected against undue legal squabbles that can tie it up, cost money, and threaten its very solvency.
Work with risk-management professionals, but don’t abrogate the responsibility to them. Be sure that all staff are not only trained in risk assessment, but are empowered to report an incident and expect it to be taken seriously in order to establish a trust between management and staff that is authentic, timely and prompt.
Looking For Trouble Is A Good Thing
One way to assess, as a regular management priority, is to adopt a system that encourages the staff, at all levels, to identify potential risks, and to remedy them before the public is exposed. These issues do not belong to a particular individual or department but to anyone who notices a problem that potentially threatens the public or the organization. This can and should be coupled with the periodic preventative maintenance of the agency, but it must be broader than just a maintenance function.
It must be seen by senior management as a legally sound way to preempt litigation. Surely preventative maintenance is vital, but I am proposing seeking out and assessing risks. I am suggesting that agencies look for trouble–before it finds them in the form of legal action. Document what you do so that in your defense, should it be necessary, you can show evidence of your efforts to safeguard people. Having a system of internal checks and measures in place also ensures that the organization is doing what it can to be proactive about risk-management, and might serve in the defense of the organization in the unfortunate event of something which does, in fact, lead to legal action.
Try It Out
Documentation doesn’t need to be unduly sophisticated or time-consuming. In fact, in a graduate course, a composite assessment-of-risk checklist was developed a few years ago. It was gleaned from multiple sources and has been in use for several years by graduate recreation students and professionals in a variety of parks and other recreation settings to evaluate risks found in a form of “management by wandering around” assessment.
Students visit any park or recreation facility, take the checklist and a camera with them, and photograph any safety threats, hazardous conditions, broken equipment or other eyesores that present unnecessary and potentially harmful risks to patrons. They are instructed to find as much as they can, and document it all thoroughly. Needless to say, over the years there have been some astounding findings of significant danger and exposure that could have and should have been addressed by staff before any “outsider” found them. It is safe to say that there continues to be a pattern of neglect. These findings are startling and frightening, serving as clear warning that many organizations are not taking risk-assessment seriously enough, or are simply not doing anything to avoid negligence claims.
Many conditions that students find pose significant danger to patrons. The presence of neglect is so evident that one wonders if anyone is looking at these conditions at all, since many seem to be of long-standing nature and present for some time in order to be so severe. Systematic neglect is apparent in nearly every location. Students visit different communities, so the findings are not central to any one area. They are urban, suburban, rural, park settings, outdoor and indoor settings as well. Unsightly conditions have been found in wealthy and poor communities.
Students have found slides with sharp, metal edges exposed, rivets raised above seams, rusted steel I-beams on a beach, waterway walls eroding along walking paths. Danger signs posted on old wooden playscapes serve to warn only those old enough to read them. For those too young to read, this is particularly troublesome to witness. Many of the findings are so alarming that students are asked to follow up with officials in those communities to see what can be done to remedy the conditions. In one case, the student (and the community) was rewarded when they were able to initiate an adopt-a-park program to resurrect a city park, rescuing it from abandonment.
This strategy is so apparent it should rightfully have occurred to those responsible for the park’s care and maintenance, yet not until this student took pictures and got press attention to the park’s condition, did the community leaders respond to the critical decay of this setting. In other parks, hazardous waste juxtaposed play areas, and water sat underneath electrical supply locations, imperiling anyone who either worked at the facility or played in the area. It seemed someone had made the miscalculated decision to ignore these fixable items, perhaps because repair was deemed too expensive. This cost-benefit calculation versus the cost of litigation should injury occur makes little sense. No one was looking out for this park and its users. Budget difficulties are not a sound legal defense in court. Neglect of maintenance is negligence waiting to happen.
Oftentimes organizations believe they can simply rely on their insurance to cover injuries and lawsuits resulting from such conditions, but they are sadly mistaken to think that their insurers and the courts will not hold them responsible for neglectful conditions. The cost of such losses is often accompanied by a loss of support by the public, or a failed business. The effect of losing a negligence case, coupled with declining participation because of a ruined reputation, can contribute to the continued decline of facilities left in disrepair, outdated and increasingly dangerous, and can create a downward spiral difficult to stop.
As a follow-up to their fact-finding visits, students are asked to estimate repairs, demolitions, replacements, cleanups, etc. Not surprisingly, most are relatively inexpensive compared to the cost of personal injury, increases in liability insurance and lost lawsuits. If students can easily find such conditions simply because they are made aware of them in coursework, can’t the agencies, if given a way to directly assess such conditions in their own backyards, also benefit by using such an approach? I think some might.
Want To Try?
The author would be happy to share a sample of this risk-assessment instrument with any agency that would like one. E-mail me at email@example.com, and I will send the same risk-assessment form that the students use on their photographic field visits. I only ask that you do so in the same spirit of wanting to find the problems that exist, address them, and fix them to protect people and your agency. In so doing, you might improve your odds in case you have a liability lawsuit for negligence. Relying on your luck and hoping that you will not be sued is hardly a sound management philosophy. It is more prudent to be safe than sorry.
Joseph A. Panza, Ed.D., is an Associate Professor for the Recreation & Leisure Studies Department at Southern Connecticut State University. He can be reached via e-mail at firstname.lastname@example.org.