Risk Management and Legal Liability

Risk Management and Legal Liability Steir – Chapter 12 (17 April 2007)

Class Reminders Article Analysis #5 – Sport Law: will be returned Technology in your Profession: due next Tuesday Weekly Article #8: due today (risk management) WebCT Quiz/Disc. #11 & #12: Fri-Sun Final Exam & Portfolio: due on May 1st (2:45 pm)

Final Exam Preview 100 total points A variety of question types Bring lined paper and pencils Review WebCT quizzes, PPT notes, chapter summaries and review questions

Risk Management How would you define risk management? • “Risk management is an effort to prevent situations in which accidents will occur and injuries result. It involves the management of acceptable risks, in goal of preventing injuries and accidents” (Steir, 353) • Taking proactive measures to prevent or minimize the number/type of situations that might result in injury – and subsequent lawsuits • Prevent, be proactive, and react appropriately and timely to accidents/injuries that do occur • Develop policies and procedures, provide staff training to take preventative steps

Risk Management Plan Purpose of a risk management plan? • “…involves the establishment ofwritten plans dealing with the prevention of situations that might lead to injuries and harm…involves an assessment of facilities and domains in which hazards exist and accidents are more likely to occur…writtenplans for dealing with emergencies and accidents” (Steir, 355) • How do I deal with an injured student/player/fan? • Should I help move the injured party? Or not? • Should an ambulance be called? Or not? • An organization’s policies and procedures manual should be clearly established and in place to deal with all situations that may occur

Risk Management Responsibilities Main Areas Field of Play (surfaces, lines, stands) Equipment (fit, condition, tested, use) Travel (plans, mode, drivers, vehicles) Personnel (training, credentials, CPR) Injury Prevention (prep., ATCs, heat, weather)

Consequences of Unsafe Environment that Causes Injury What are some consequences to the program? • Actual injury or death to the participant(s) • Negative public relations and adverse publicity • Financial exposure from successful lawsuit • Loss of prestige and tarnishing of image • Reduced patrons, funding, support, fans, etc • Other?

Risk Management Topics AEDs - ? = automated external defibrillator Liability waivers? = contract that absolves liability of provider Safety issues at swimming pools? = drowning, diving injuries, suction entrapment, water-spread illnesses

Risk Management Topics • Student-athlete transportation * 15 passenger vans – lots of accidents • Cheerleading stunt – should they be regulated? • “voluntary” workouts – less supervised

Legal Liability Define Liability in terms of Sport? Provide examples of liable scenarios or situations for sport program? What steps can you take as a program coordinator or director to decrease potential liability?

Tort Liability What is a “tort”? • “A tort is a private or civil wrong or injury, other than breach of contract, suffered as a result of another person’s conduct” (Steir, 351) • The basis for most of the litigation brought before American courts today by injured parties • To avoid tort liability, sport managers must: 1) Attempt to provide a safe program environment 2) Protect organization against charge of negligence 3) Acquire insurance protection – liability insurance

Accident Reports What type of information is needed? • Important records and accounts of accidents and injuries occurring in your program • Description of events from witnesses • Names, addresses, phone numbers, signatures of all witnesses of the accident/injury • A written statement from the injured party, if possible, describing what happened • Key – accurate recordkeeping of injuries will provide supplementary protection for the sport organization against a potential lawsuit

More on Legal Liability When an accident resulting in personal injury occurs in the sport environment, the questions that often arise include: • How did the injury occur? • Who is at fault? • Can damages be recovered? 4) Does the organization and/or the employee have liability insurance?

Negligence What does the term negligence mean? Negligence = “failure to act or perform one’s duties and responsibilities at the standard of care that is expected of a prudent professional in similar circumstances (Steir, 355). Standard of care - Generally accepted practice and behavior within your profession “Negligence is the failure to act as a reasonable and prudent professional would have acted in a similar situation, assuming the person possessed similar educational credentials, experience, training, and expertise(Steir, 356)

Negligence and PE/Sport The majority of the court cases involving physical education and sport are negligence cases These cases typically relate to: • negligent supervision • educational malpractice (inappropriate) • faulty facilities • Injury due to faulty or damaged equipment

Damages for Negligence? Compensatory in nature - $$$$$$$$$$$$$ Plaintiffs usually seek monetary damages for: - medical/hospital expenses - rehabilitation expenses - legal expenses (i.e. – attorney’s fees) - income lost because of injury

Determining Negligence… Five Criteria used to determine negligence (Steir, 357): 1) the sport organization or professional had to have been responsible for providing a safe environment to the injured party 2) a safe environment was not provided 3) injury or damage to the person was caused by the unsafe environment 4) the injury must have been avoidable, and the injured party must have not been responsible 5) an actual injury or damage must have clearly occurred

Damages for Negligence? Contributory Negligence? (Bucher, 404) “when the injured party has done something that contributed to the cause of his or her injury” – i.e. - not following instructions or wearing equipment incorrectly Assumption of Risk? (Bucher, 404) “persons engaging in sport know that they are taking risks – an inherent aspect of physical activity and sport” – participants must be fully aware of risks (in writing) – informed consent

Areas of Concern for Negligence? • Unsuitable or faulty facilities • Improper instruction or coaching • Lack of proper supervision • Use of defective equipment and supplies • Failure to warn of possible dangers/risks • Slow, insufficient, inadequate medical attention • Lack of safety equipment and warning signs • Grouping teams by age rather than by size • Inadequate pre-participation physical exam

Omission vs. Commission What is the difference? (as they relate to negligence) • Omission – the failure to do something that is expected of by a reasonable and prudent professional (clean spill on a facility surface, lack of periodic facility structural evaluation) • Commission – doing something that should not have been done by a reasonable and prudent professional - the consequence results in an unsafe environment (defective equipment leads to injury) * Professionals are becoming fearful of doing something because of the risk of being sued

Informing of Risks • Participants must be adequately forewarned • Individuals and/or parents-guardians • Informed Consent Statement(Steir, 364) – forewarning in writing, with signature of participant/parent collected • Waivers/Release Forms – waiver law depends on state law - participants sign a written document waiving a person’s right to sue for injuries that might result from participation – may not protect against gross negligence - strength of waiver in courts varies state-by-state, minors can’t sign away (waive) right to sue (see Rec. Mgmt. article) • For Fans and Spectators – facility signs, public address announcements, in program, on ticketbacks • Participant orientation should be comprehensive

Summary – Risk Management To avoid tort liability, sport managers must: 1) Warn all parties of risks associated w/participation 2) Provide a safe program environment 3) Provide proper equipment, facilities and supervision 4) Acquire insurance protection – liability insurance 5) Be smart – take precautions – be professional 2007 NCAA Convention – Risk Management

Risk Management and Legal Liability