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