Risk Assessment

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.

Affirmative Obligation

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

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