Department of Recreation, Park & Tourism Administration Western Illinois University

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Dominick Morrison
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1 Department of Recreation, Park & Tourism Administration Western Illinois University RPTA 322: Administration of Leisure Services Categories of Risk Personal injury is only one category of risk, though it is the one most commonly discussed in leisure services. There are three other categories of risk that also require attention from risk managers and leisure services professionals generally. 1. Property exposures (includes real and personal property, such as areas and facilities, buildings, inventories, objects on loan, equipment leased and owned; office, kitchen, health center equipment and supplies; program equipment, e.g., waterfront and water craft, crafts, camping) Types of property exposure risks might include fire damage, damage due to natural elements (e.g., hail, water, wind, lightning, etc.), vandalism and other malicious mischief, theft and mysterious disappearance, or damages to property of others. 2. Public liability (excluding negligence in program services, most often personal injury) Types of risks might include malpractice by personnel, products liability (e.g., equipment or food), contractual liability (including indemnity provisions such as hold harmless clauses), natural hazards, advertiser s liability (e.g., false or misleading advertising), intentional torts (e.g., libel and slander, false arrest or detention, assault and battery, invasion of privacy), dram shop or host liquor violations, and discrimination or civil liberty violation. 3. Public liability in program services (includes types of bodily injury that might occur in activities or services provided, i.e., activities and services conducted or supervised directly or generally, or in public facilities or areas, i.e., areas or facilities where activities are not supervised; risk managers should group such injuries in some detail in order to assess the possibility and likelihood of claims arising from them) Types of risks might include death, quadriplegia or other paralysis, brain damage, loss of limbs, loss of senses (e.g., vision, hearing), injury to internal organs, orthopedic injuries (e.g., sprains, fractures, torn ligaments, etc.), and puncture wounds. 4. Business operations face risks including loss of income (e.g., due to natural elements, health reasons, or political factors), embezzlement and employee dishonesty, health and accident coverage for clientele and employees, health of key personnel, interruption of business, all types of vehicle use, errors and omissions by officers, and service contracts. Strategies to Control Risk Each category of risk described above is present in all leisure services settings, though the precise mix of course varies. Leisure services professionals must therefore develop risk management strategies suited to the contexts in which they work. Developing a risk management strategy begins with identifying the risks present in a specific setting, using the preceding categories. Each risk identified must then be classified by its frequency (the likelihood it will occur) and the severity of its probable consequences (the injuries it may cause or its financial impact). 1

2 2 With this information in hand, the leisure services professional can decide which of three general strategies is best followed in managing each specific risk (see Figure 1). 1. Retaining risk means to continue offering a specific program or operating a specific facility while developing and implementing a thorough risk management plan (see p. 3). 2. Transferring risk can mean one of two things. a. Continue offering a specific program or operating a specific facility, and purchase insurance specifically intended for them (usually in addition to existing standard insurance coverage). Such insurance may be purchased from commercial liability insurance brokers or through the self-insurance systems found in many states. The effect of additional insurance is to shift the financial consequences of an injury from the leisure services agency to the insurer. b. Use an independent contractor to offer the program or operate the facility. An independent contractor is a (i) person or organization not otherwise on an agency s payroll (ii) who performs a specific job and (iii) while doing so is neither supervised nor managed by the agency with whom the contract is made. The value of this approach is that an agency cannot be held liable for the negligence of an independent contractor. By using an independent contractor, an agency can continue to offer programs and operate facilities that might otherwise impose an unacceptable level of risk for the agency and thus have to be shut down. Note, however, that the courts have been reducing the protection from liability available to agencies by the use independent contractors. It will be more difficult to escape liability for negligence on the part of the independent contractor when any of the following conditions is present. An agency uses the same independent contractor repeatedly as part of the agency s standard programming or facility management. The agency fails to exercise reasonable care when selecting an independent contractor. Reasonable care includes determining that the independent contractor s employees are appropriately qualified and have all necessary certifications. Reasonable care also includes investigating the independent contractor s past safety record and performance. The independent contractor is asked to provide programming or manage facilities that are inherently dangerous (e.g., strict liability applies). The agency continues to use part of the facility managed by the independent contractor or provides programming at the same time and place as the independent contractor. The agency does not inspect the facility managed by the independent contractor or evaluate the programming provided by the independent contractor. The agency has the right to control the manner in which the independent contract operates while managing a facility or providing programming. 3. Avoiding risk means to eliminate or not offer a program, or to close or not operate a facility. It is not necessary to eliminate an entire program or close a facility altogether to avoid risk. Specific aspects of a program, specific pieces of equipment, or specific areas of a facility may be eliminated, removed, or closed. It is important to point out that in cases of hazardous equipment, conditions, or facilities, the agency must take thorough, effective action to prevent access to them by unauthorized persons. Merely posting a sign or putting up a fence may not be sufficient.

3 3 Severity of Injury / Financial Impact High / Affects vital elements Medium / Affects significant elements Low / Affects insignificant elements Frequency / Likelihood of Occurrence Often / High Infrequent / Medium Seldom / Low Avoid risk Transfer risk Transfer risk Transfer risk Transfer or retain risk Transfer or retain risk Retain risk Retain risk Retain risk Figure 1. Strategies for controlling risk (Source: Adapted from Van der Smissen, 1990) A Sixteen Step Risk Management Planning Process The following is based on the risk management planning strategy presented in Peterson and Hronek (2003). 1. Philosophy and Policy Statements Develop philosophy and policy statements regarding your organization s belief in implementing risk management loss prevention and control. The governing authority (e.g., city government, senior management) should express commitment to risk management by incorporating risk management philosophy and policy statements into its operations principles. 2. Needs Assessment Analyze current risk management planning, practices, and documentation using this sixteen step process. Identify aspects that need improvement. 3. Goals and Objectives Establish appropriate goals and objectives for your risk management planning process. 4. Site and Facility Development Incorporate risk management planning into the planning, layout, design, and construction of sites and facilities. Work closely with relevant professionals (e.g., architects, builders) to ensure (a) elimination of site and facility hazards, (b) conformance to building codes, and (c) conformance to all relevant local, state, and federal regulations. 5. Program Development Accept responsibility to provide clientele with programs and facilities meeting all relevant standards of care. Identify those standards and ensure they are met. The following guidelines should be followed. a. Programs should be led by qualified personnel. Identify what qualifications are necessary for specific programs and hire or train staff appropriately. b. Require program leaders to use progressive or step-wise instruction in accordance with participants skill, interest, and ability levels.

4 4 c. Provide sufficient numbers of program leaders to handle activities, equipment, and areas used. d. Inform participants of hazards. Be specific and thorough. Document this process. e. Keep adequate documentation of all aspects of programs. f. Ensure each program has been authorized appropriately by governing or managing authority. 6. Supervision Develop supervision plans conforming to the philosophy and policy statements developed in step 1 above. This should state explicitly the standards of care to be maintained and the qualifications necessary to do so. It should also include procedures for (a) ensuring staff members, including volunteers, have the requisite qualifications prior to beginning supervision and (b) for ensuring these qualifications are kept current. 7. Establish Safety Rules, Regulations, and Procedures Assemble, review, develop, and modify all safety rules, regulations, and procedures. Ensure these have received proper review by relevant higher authorities. Include steps to inform staff of existing, modified, and new rules, regulations, and procedures. Further ensure these are collected and readily available to staff. Include provisions for informing participants of these rules, regulations, and procedures where this is necessary. 8. Safety Inspections and Investigations Develop, implement, and enforce regular, systematic, and thorough safety inspections of all program areas, equipment, and facilities. Include in this a reporting procedure for faulty or substandard areas, equipment, and facilities. As part of this, also include documentation of responses to such reports. Maintain thorough and accurate records of all inspections. At the minimum, these must conform to (a) relevant codes and laws, (b) manufacturers specifications, and (c) reasonably prudent professional practice. 9. Accident Reporting and Analysis Develop and implement a standardized accident response procedure. Ensure all accidents are reported and analyzed by relevant authorities. Recognize that all documentation relating to an accident is likely to become part of the legal record in the event of adjudication. Prepare such documentation to protect the interests of the agency. In the event of an accident, ensure it is completely investigated. 10. Emergency Procedures Develop and implement standard emergency procedures, not limited to injuries to participants (e.g., include inclement or hazardous weather conditions). Train all staff in these procedures. Require appropriate first aid and CPR certifications for employment. Ensure adequate first aid and emergency supplies and equipment are available in all areas. This includes telephones. Arrange emergency response plans with relevant area agencies (e.g., police, fire, and ambulance services). 11. Releases, Waivers, and Other Documentation Identify relevant documentation to be obtained from all participants. Ensure this documentation is reviewed by competent legal authority and by governing authority. Train staff in using and collecting this documentation. Remember that the documentation must be specific to the

5 5 program(s) and site(s) participants are using, and cannot be generic. 12. Insure Against Risk Consult with governing authority to identify and implement appropriate methods of insuring against risk. This is a complex area that requires competent professional analysis and advice. Get it. 13. In-Service Training Develop, implement, and evaluate a regular program of in-service training for all employees and volunteers. This can be done as part of standard personnel management procedures. Identify special training needs by activity, site, and season, and ensure training is carried out accordingly. Ensure all necessary certifications are updated regularly. Document all in-service training and certifications. 14. Public Relations Include information on proactive risk management planning in your public relations program. Insure relevant higher authorities as well as the general public are aware of your efforts. In the event of an incident, be prepared to respond to requests for information in ways that are noncommittal and favorable to the agency. Avoid all comments until cleared by higher authorities. 15. Legal and Insurance Analysis Identify and retain competent legal and insurance professionals. Acquaint them with the nature of your facilities and programs, seek their advice, and respond to it. Meet regularly with them and ensure they are informed of any alterations in programs and facilities. Do not act without consulting them, particularly if there has been an incident. 16. Review and Evaluation Establish regular review and evaluation procedures that involve higher authorities, participants, and staff. Implement these procedures, documenting (a) results and (b) responses. Ensure these materials are readily available and that all staff have been trained in them. Sources Hronek, B. R. & Spengler, J. O. (1997). Legal liability in recreation and sports. Champaign, IL: Sagamore. Van der Smissen, B. (1990). Legal liability and risk management for public and private entities. Cincinnati: Anderson Publishing.

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