10 Steps to Spectator Safety

March 22, 2012

The Ball is In Your Court

Katharine M. Nohr, Esq.
Nohr Sports Risk Management, LLC

Hosts of indoor spectator sports have the challenge of providing safe viewing to attendees. In a recent case decided by the Court of Appeals in Oregon, Matson v. Oregon Arena Corp., 242 Or.App. 520, 256 P.3d 161 (2011), the court affirmed a $2,125,000 award of damages to an attendee who sustained damages when she fell 40 feet from a railing in the arena. A jury had found Oregon Arena Corporation (OAC) 50 percent at fault for the injuries that the Plaintiff sustained. The accident occurred when the Plaintiff fell from a railing that enclosed the 300-level smokers’ lounge during a Portland Trail Blazers basketball game at the Rose Garden. Plaintiff alleged that OAC did not post any warning signs regarding the risk of falling, did not have a barrier that would prevent customers from falling and did not implement adequate policies or procedures requiring its employees to warn customers of the danger of sitting on the bench-like platform from which Plaintiff fell. Plaintiff also alleged that the nighttime lighting was insufficient, the bench-like platform gave an impression that it was safe for seating, and that there should have been a video security surveillance system in order to protect customers from harm. The appellate court’s published decision primarily addressed issues regarding jury instructions and did not provide details of how OAC was negligent.
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Zipping through the Waiver

January 17, 2012

A recent decision upholds a Waiver of Liability and Assumption of Risk Agreement

Shelley Timms, B.A., LL.B., LL.M.
Timshel Services Inc.
Alcohol Risk Management

The British Columbia Supreme Court recently revisited the issue of the validity of Waiver of Liability and Assumption of Risk Agreements as a complete defence even when there is clear negligence.

In Loychuk v. Westgeest v. Couger Mountain Adventures Ltd et al. (decided in early 2011), two women in separate groups participated in a Zipline package. On one section of the Zipline, one of the women got stuck halfway from the start point and the second woman collided into her a high rate of speed, causing injury to both. There was no question that the Zipline guides did not communicate and the second woman should have been held back until the first was brought down.

However, both had signed a waiver of liability/assumption of risk agreement. The defence argued that that should be the end of the matter as the waiver was all encompassing, including the exclusion of liability due to the negligence of the company’s employees.

The plaintiffs argued the following:

  1. That the release was unenforceable because it was reasonable to know that the plaintiffs were not consenting to the terms at issue and the company failed to take steps to inform the plaintiffs of the terms; in other words there was a misrepresentation by omission;
  2. That the release was unconscionable;
  3. That the release was contrary to the Business Practices and Consumer Protection Act (British Columbia) by reason of deceptive and/or unconscionable acts by the company;
  4. That the release was obtained without consideration (money).

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Providing Reasonable Accessibility to Medical Care at Events

January 17, 2012

The Ball is In Your Court:

Katharine M. Nohr, Esq.
Nohr Sports Risk Management, LLC

Does your organization provide reasonable accessibility to medical care during recreational activities? A recent Federal Court case addressed this issue, with the Court denying the Defendant’s motion to dismiss the case and so the matter will proceed to trial unless the parties are able to enter into a settlement agreement. See: Estate of Newton v. Grandstaff, 2011 WL 2678933 (July 8, 2011).

The facts of the case are that De Shawn Newton was participating in a basketball tournament involving 128 teams at a YMCA facility in Dallas, Texas. Newton apparently played well in the first half of the game and was seated on the bench, when he suddenly went into cardiac arrest. The coach attempted CPR, but no one else came to his aid. Newton apparently had a congenital respiratory condition and heart defect. Emergency medical personnel were ultimately dispatched, but allegedly could not enter the facility and so no professional care was available for 30 minutes. The Plaintiffs alleged that Defendants failed to “hire or arrange for any medical personnel, or trainers certified in administering CPR, to provide first aid to injured players in need of medical attention; provide for any emergency medical equipment, such as a defibrillator to be available in the event of a medical emergency; and provide effective ingress and egress to the facility that would have allowed emergency medical personnel to access quickly the premises and render immediate and necessary medical aid.” Plaintiffs alleged that Newton would not have died if the proper safety measures had been taken. Defendants took the position that they had no duty owed to Newton.

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Athletic Trainer Risk Management

January 17, 2012

The Ball is In Your Court

Katharine M. Nohr, JD
Nohr Sports Risk Management, LLC

On August 12, 2011, a Federal Court in Alabama issued a decision in a case in which a former football player at Auburn University sued a former athletic trainer at Auburn for failing to supervise his rehabilitation properly. See Ramsey v. Gamber, Slip Copy, 2011 WL 3568911 (2011). Plaintiff Ramsey had been injured while doing weight training at the University. His athletic trainer thereafter collaborated with doctors to design a rehabilitation plan. Ramsey alleged that Gamber “improperly ordered him to perform weighted exercise before it was safe for him to do so, in violation of doctors’ instructions.” In the Court’s decision, it sympathized with the Plaintiff’s “distress over the injury that cut short his athletic career” and noted that it was “deeply regrettable that Auburn University terminated his football scholarship because of an injury he had little ability to prevent.” The Court went on to conclude that Ramsey’s case was properly dismissed as he was not able to prove that Defendant’s misconduct caused his injury.

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How Accessible are You?

December 08, 2011

An examination of the 2010 ADA Standards

Lexi Christoules-Chaput
Assistant Director, Informal Sports & Student Personnel
Indiana University

Ira Wrestler
Assistant Director, Aquatics and Safety
University Recreation
Central Michigan University

On July 26th, 1990 the Americans with Disabilities Act was signed into law. The law would prove to be a huge victory for Americans with disabilities in gaining equality of opportunity, full participation, independent living, and economic self-sufficiency. In celebrating the 20 anniversary of the act, the Department of Justice revised regulations and the 2010 Standards for Accessible Design were signed into law, and the revisions are sure to impact campus recreation facilities nationwide.

Below is a brief history of the act got to where it is today
1968 — Architectural Barriers Act (ABA)- First act put into place defining access standards
1990 — Americans with Disabilities Act (ADA)
1991 — Access Board publishes ADA Accessibility Guidelines (ADAAG) and Department of Justice signs into law
2002 — ADAAG is revised (adopted in 2004) — this is the first time recreation facilities are mentioned
2010 — ADAAG Standards for Accessible Design is created and signed into law

There are two major parties involved in the creation, implementation and enforcement of ADA standards and laws. The first party is The Access Board, an independent Federal agency created in 1973 to ensure access. It operates with 28 full time staff members. Half (14) of the representatives are appointed from most Federal departments, and the other 14 members are appointed by the president to a four-year term, a majority of whom must have a disability. The board is responsible for creating standards that are adopted by others, maintaining design criteria and providing technical assistance and training. This is the group who deals with standards for all new construction and can and should be contacted for consultation when facility planning is being done. This responsibility falls mainly with the architect of the facility, but the organization managing the facility after completion can also contact the Access Board with questions.

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The Uncertainty Factor in Risk Management

November 23, 2011

Kneejerk Reactions Do More Harm Than Good

Matthew D. Griffith, M.S., RCRSP
Georgia Institute of Technology

Hearing the words “high dive” evokes strong memories and great stories from many adults. It was almost a right-of-passage at the local pool. Unfortunately, there are not many 3-meter diving boards left in North America, and today’s kids will not have that terrorizing, yet exhilarating experience of their first jump from ten feet. The removal of diving boards is indicative of a spreading and disturbing phenomenon in risk management, the unsubstantiated elimination of programs and activities resulting from kneejerk reactions and poor analysis.

To be an effective risk manager, it is necessary to have an appropriate working definition of risk. The problem is that there is no agreed upon definition of risk, in fact, a quick internet search produced at least 25 different definitions. While realizing that risk does indeed have different meanings in different applications and industries, a good general definition for use in recreational risk management is the probability of a hazard to lead to a loss. It is critical to understand that “risk” is the probability, which can be measured and quantified.

In addition to understanding the definition of risk, a thorough understanding of the difference between risk and uncertainty is important to a risk manager’s success. Uncertainty is not the same as risk, it is inherently immeasurable. With risk, the odds are known, or at the least, there is information and data that can be used to quantify it. This is the case with the lottery, although someone who buys a Mega Millions ticket may not know the odds of winning, it can be calculated using available information. With uncertainty though, the odds, by definition, cannot be known. Differentiating between risk and uncertainty underscores the many challenging decisions a risk manager must make.

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