March 10, 2015
10. Standard of Care in Recreation
Determining the standard of care is industry specific. So what does it look like in Recreation?
In keeping with the overall theme of this blog, ‘keep it simple’, I’ve distilled the issues down to the ‘5 Key Risk Areas’:
Supervision & Instruction
Facilities & Equipment
In this blog we’ll explore ‘Supervision & Instruction’
As somewhat of a disclaimer – remember the title of the blog (Negligence Simplified)! Thus the focus here is on the KEY issues, and not all the issues!
Key Issues in Supervision & Instruction:
1. Quality of supervision
In short: Hire qualified supervisors/ instructors
2. Quantity of supervision
In short: Establish reasonable supervision ratios that are based on activity type, space size, activity risk level, age and number of participants.
3. Lesson plans and progressions
In short: If you are offering higher risk programs which involve instruction, instructors should follow lesson plans (or standard protocols) which document progressive instruction.
In the next blog, we’ll look at the Key Issues in Training.
To follow the blog from the start, go to www.sportrisk.com/blog/
February 16, 2015
9. Standard of Care
Determining the ‘Standard of Care’ in a court of law is the trickiest part of the whole proceedings.
Essentially, what the court is trying to do is draw a line representing the standard. Once the line is drawn, the court will then determine if the defendant’s behavior is above the line (hence no negligence), or below the line (hence negligence).
What is the standard of care in the Recreation setting – and how is it determined?
The courts will generally focus on 3 key issues:
- Case Law
- Published Standards
- Industry Practices
Lawyers on both side will research similar court cases and (if it advantageous for their client), argue that the case is essentially identical to a previous case. If the judge agrees, then (s)he is required to follow the precedent set by the ruling. (Note that cases are generally too unique for this argument to gain traction).
The obvious place to start is to determine if there are published standards out there that relate to the situation in hand. For example, in a pool drowning situation, the court would review relevant standards governing pool operations.
The difficulty is that there are not a lot of published standards out there to refer to (the pool being one of the exceptions).
So the courts will generally have to rely on:
What are the current industry practices? Hence for a Climbing Wall accident, what are the current practices for institutions operating climbing walls? The focus needs to be narrowed further. So for a post secondary institution operating a climbing wall with a student population of 20K, the courts will try to focus on post secondary institutions of the same size (and in the same state/province if possible). While other climbing wall operations may also be reviewed (e.g. privately operated walls), the key comparison will be between like industries. (A great example of this is supervision of pools: the supervision standard is totally different for hotel pools relative to almost any other pool situation).
The courts will obviously need to look at the operating practices at a number of similar industries in order to determine where the line needs to be drawn i.e. what the current ‘standard’ is.
In the next blog in this series, we’ll look at what the ‘Standard of Care’ looks like for professionals working in the Sport, Recreation and Leisure fields.
To follow the blog from the start – go to www.sportrisk.com/blog
February 10, 2015
8. Proximate Cause
The 4th and final step in determining if there has been negligence is to answer the question – was the defendant’s behaviour the proximate cause of the the plaintiff’s damage? In other words, did the defendant’s actions (or inactions) directly lead to the damage or injury?
In many situations this might appear to be obvious. For example, if someone drowns while a lifeguard is inattentive or absent, then the conclusion might be that the lifeguard’s behaviour directly led to the drowning i.e. there is proximate cause.
However, this may not be the whole story. Another way of looking at it is to ask the question: if the plaintiff had acted differently, would the outcome still have been the same? For example, if the plaintiff had been cautioned earlier for running on the pool deck, then the defendant’s lawyers might argue that the plaintiff slipped and fell into the pool as a result of running on the deck. Hence the argument would be that the lifeguard’s behaviour was not the direct cause of the damage, rather the result of the plaintiff’s own actions. We’ll revisit this possibility later under ‘contributory negligence’.
In the next blog, we’ll return to ‘Standard of Care’ since this is the key issue focused on by the courts. What is the standard, and how is it determined?
To follow the blog from the start – go to www.sportrisk.com/blog
September 15, 2014
Alison Epperson, Ph.D.
Assistant Professor, Health Ed.
Murray State University
Editor’s Note: This is the first of a two-part series.
In Recreation, we take (or at least we should), the weather seriously; we know, respect and remain diligent in our education and training when it comes to our staff and participants. We have radars, alerts, apps, email, texts, and even social media to keep us up to date at all times of the day and probably have enough experience to apply for a meteorologist position. Safety is our duty! For the most part, campus recreation programs and facilities need to think about tornados, snow/ice storms and of course hurricanes for coastal locations.
In moving to the faculty side of campus, I’ve heard my share of “I walked to school five miles each way barefoot in a snow storm” stories and “I’m not canceling class, it’s not that bad and students are required to be here, or they can take an unexcused absence!”
I’ve been on both sides; as a student commuting two hours to another school in another state for my PhD. In my first semester, a tornado watch was issued for the entire region, which included my town all the way through my school. I emailed my professor and indicated that I was nervous about being on the road for four hours round trip and the three hours of class time. My response was basically, “if you’re not here, you will not be allowed to make up the work…” Reading between the lines, I understood that I was expected to be there. I got in the car and drove, dodging storms until I just had to turn around and come home. I was only excused because there was a confirmed tornado in my path.
This experience really changed how I viewed the expectations of ‘responsibility’ on both ends, both as a student and an employer. Granted, some people will take the forecast of a possible heavy rain and thunderstorm (minus any warning) as an excuse to stay home ‘just to be safe’ as far as they can. However, for the first time in my 16 years of employment on this campus, this past October(!), professors started cancelling late afternoon and night classes at lunchtime due to the ‘high threat of damaging winds and intense storms.” Both the local and national weather services, as well as everyone in between were in a state of panic to the extent of dismissing school early. I too cancelled my class because I have commuters and relating to my own experience, I understood their concern.
Ironically, as I sat at home with my terrified son and dog waiting for the predicted 80 mph winds, downed power lines and trees to hit Murray, it didn’t. It hit all around us, but not our town. We just got a lot of rain! In confusion, I kept watching the radar and the news, hearing reports about damage all around us, but nothing more than flooding for us.
While I’m not going to say that I didn’t enjoy my early night at home and quality time with my son, I’ll admit I felt kind of stupid (as did a majority of our faculty) at canceling class 6 hours early and falling in line with the rest of the community in our effort to ensure student safety.
Unfortunately, it is situations just like these that just reinforce those who feel we are too quick to panic. It’s like the boy who cried wolf.
In relation to your programs and staff (club sports, fitness, recreation centers, intramural staff and officials), it may be time to think about a well-written policy ‘in the event of a weather-related emergency.’ You may need to get down to total nit picking, to establish clear expectations while maintaining the safety and wellbeing of everyone. As most of you already know, it is always better to have something in writing that everyone understands and agrees to as party of their employment.
For example, if you have flag football games planned from 6-10 pm and a tornado watch (not a warning) has been issued for that exact time span, what would you expect of your staff? It would most likely be to your advantage to have a policy that states staff and officials are expected to remain at work until such time (and you may even determine a time or distance) that it appears eminent that dangerous weather is approaching.
Part of your staff training could be that they understand and pre-plan a designated safety location if this happens. This offers protection to you as an employer in that you clearly explained and agreed upon these terms for employment in regards to ‘reasonable expectations.’ You are not forcing someone to wait until the last minute only to be swept up and on their way to OZ, therefore, these types of policies could be a way to prevent being accused of negligence. I would highly recommend you also consult with your University Legal Council before putting anything into place or creating a policy; I’m just suggesting food for thought.
Likewise, if you force someone to come to work when a weather alert has been issued and the storm approaches faster than expected, or a tree or power line goes down and that person is somehow affected, where does the responsibility lie? “Weather” occurs, that’s just the reality, but consider all the legal and ethical ramifications surrounding ‘reasonable expectations.’ If guidelines and expectations are not spelled out and agreed upon, you will find yourself with lots of people ‘erring on the side of caution’ and not coming to work – what do you do then? Do you shut down and cause a stir because your programs and services aren’t in operation…?
During the winter of 2014, our campus was shut down a total of five days – that’s a record for our school. Not all at once, but three consecutive days which I don’t ever remember happening before (and I’ve lived here since 1978). Here’s what got me, we got into this ‘essential vs nonessential staff’ quandary – the grounds crew were working around the clock to remove snow and ice in an effort to increase accessibility, but that didn’t solve the problem for those who couldn’t get out of their own driveway, or travel down the ice packed roadways that were not properly prepped by the city!
Bottom line, the out-of-the-ordinary is unfortunately becoming somewhat of a norm. There’s no question climate change is changing the types and amounts of weather blasting across the country. Make a plan, be prepared!
Part 2 in this series will focus on staff training.
September 15, 2014
Looking beyond into student learning, preparedness, and assessment
University of Arkansas
Texas State University
Editor’s Note: This is the first of two parts.
Risk Management, the big buzz word floating around campus recreation right now, has a lot of recreation professionals on edge but many may not be quite sure of how to go about managing risk properly. One of the biggest risks that campus recreation departments have involves their student staff. Generally speaking, these staff members are expected to work front-line operations and carry out daily risk management practices, including applying first aid and CPR/AED skills when needed. But are we properly preparing our students to succeed in situations where this knowledge and these skills will be needed most?
Many campus recreation programs are taking a proactive step in ensuring that most or all student staff is trained in CPR/AED and first aid, however, many programs stop after the initial certification class. Most of these certifications, regardless of the provider, last typically from one to three years before a renewal is needed. Additionally, many certification providers are not only simplifying the techniques they teach, but also offer online courses where students never have the opportunity to practice their skills. With such a variation of training and certification renewal options, inconsistencies in knowledge and skills are significant, and student staff are likely to forget much of their training. Read more
September 15, 2014
Feeding the Risk Gap
…. and getting buy-in from Risk Management
Director of Recreation, Adventure and Wellness
University of Alaska Fairbanks
Campus recreation programs struggle to find the balance between providing students with programs/sports/activities that are often perceived as ‘high-risk’ while avoiding administrative concerns for major liability. The advantage campus recreation programs have is the statistical research reflecting a generation who is exposed to risk-taking behavior at all times and are therefore going to engage in other risk taking behaviors which often lead to poor academic success. By providing the programs and opportunities for students to engage in more physical and social activities, the likelihood that they will engage in drinking, drugs, and other reckless behavior decreases.
The University of Alaska Fairbanks’ risk story has a large asterisk associated: *takes place in Fairbanks, Alaska.
- Residents of Alaska are naturally accepting of everyday risks and comfortable living with in environments not suitable to most in the lower 48 states.
- Temperatures in winter regularly dip below -30F.
- Children play at recess until -20F. Fairbanks’ shortest day sees a little more than 3 hours of sunlight.
- It is a notable day when it doesn’t snow in the winter.
- School is only cancelled in winter when temps climb too high and things melt.
- Over 5% of Fairbanks’ population doesn’t have running water, showers or toilets.
And these are just the urban risks! Risk increases significantly as soon as you leave the city boundaries and ultimately you must rely on self-rescue techniques. Read more