Transcript Risk Management - Kansas State University

Risk
Management
Understanding and Reducing Liability Exposure
Foreseeability is the key to
Liability
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Foreseeability means that
evidence is available that
a particular injury causing
incident is likely to happen
again. In other words,
there is a probability of a
re-occurrence.
In other words, you should
know or those in your field
(fellow professionals)
should know that these
injuries occur and certain
precautions must be taken
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Act of God illustrates
foreseeability. An Act
of God is a natural
occurrence that is
unforeseeably possible.
If you can’t do it right,
don’t do it at all.
Good common sense
makes good legal
sense.
Reasonableness Standard
You will be held to a
standard of:
What will a
reasonable and
prudent professional
do under the
circumstances?
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Expects you (as a
professional) to balance
the foreseeable risk of
injury against the
corresponding burden
to alleviate hazards.
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Reasonableness is a
two-way street. The
recreationist must also
act reasonably in
looking out for their own
safety (exceptions:
those of tender years)
Negligence Formula
Neglect or carelessness falling below minimally acceptable
level of reasonableness (common negligence)
4pt formula
(all elements
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must be present)
 Standard
 Breach
of Duty
 Causation
 Damages
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Standard/Duty___ you must
owe the plaintiff or the public
some standard of care
(maybe be written policies or
customary practices, etc..
Breach __ Act of commission or
omission that violated that
duty owed
This violation of duty caused
the plaintiff to be injured
The injury/damage was a
consequence of the
defendant’s actions
Varying standards of care
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Invitee: someone
who is invited or
encouraged to use
the premises
Licensee: not invited
– merely tolerated
Trespasser: anyone
who is unauthorized
to be on the
premises.
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Invitee standard of care: to
inspect, repair or remove known or
discoverable hazards within a
reasonable period of time.
Inspection is a burden of
precaution. Adequate warning
makes a hidden hazard open and
obvious. No duty to warn of open
and obvious hazards.
Communicates the danger to the
user.
Licensee standard of care: no duty
to inspect, guard or make safe…
only warn
Trespassers standard of care: No
duty to inspect, guard, warn or
make safe…except for ultrahazards. No man traps!
Not required to ensure safety, only
make premises reasonably safe.
Gross Negligence
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Willful and/or wanton
misconduct:
Willful misconduct is
intentional wrong
doing. Wanton
misconduct is
reckless conduct
that demonstrates
an utter disregard for
the well being of
others.
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Attractive Nuisance Doctrine:
Child trespassers of tender
years cannot appreciate the
danger…so defendants are
held to a higher standard/duty
of care; that of making the
premises reasonably safe.
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The KS Recreation Use Statute
gives landowners offering
access to property for
recreation, protection to a
level of gross negligence…or
all users are owed the
standard of care due only a
trespasser
Adequate Warnings
 Takes
a hidden
hazard and makes
it open and
obvious
 Better to repair,
remove or replace
but warn
adequately if these
actions are not
feasible.
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Color of sign important
(blue not a warning
color)
Message must be clear,
easily understood and
adequately convey
danger.
Other actions to limit
scope in unworkable
situations: close park at
dusk, or define an outof-bounds area (e.g.
skiing, swim beach).
Immunity
 At
one point (long
past) government
enjoyment
absolute immunity
 Today
governments are
liable like private
citizens for
proprietary
functions.
Tort Claims Acts spell
out that government is
liable, but also provide
exceptions:
 discretionary
(deciding/ policy)
functions
or
 protection to a level
of gross negligence
Participant Liability
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A participant will be liable for
injuring another participant
when the injury is caused by
wanton disregard of a safety
rule, not mere negligence
Treat 3rd parties like defects on
the land, repair/remove –
alleviate the hazard
There is no duty to warn of
criminal activity (that is an
open and obvious hazard), but
facility design should not make
it worse.
An agency is liable for its
agents (vendors, volunteers)
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Should have similar standards
for training of volunteers
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If a coach were to instruct players to
harm another player on the opposing
team (willful = gross negligence) but if
an opposing player just gets hurt from
play (no negligence).
General vs. Special police protection:
Generally agencies are immune from
liability for general police protection ..
that which is provided to the general
citizenry.
 Issues testing this approach,
special police protection at
events. (Dodger’s fan).
 Special protection was evident at
the Master’s with police escorts for
players at key areas…but not
course wide.
 Having adequate police
protection cannot be expected to
prevent every injury as many occur
too quickly, or are not foreseeable
to act in time to prevent.
Program Supervision Liability
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Do staff have
adequate skills and
training to perform
professionally?
Certification: helpful in
ensuring a starting level
but inadequate proof
of skill and ability to
perform at a later time.
Re-training vital to
ensure preparation.
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Hot Spots
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Lack of adequate
supervision numbers
Lack of adequate
preparation/training
Failure to enforce
regulations
Inappropriate matching of
skill levels to venue or other
participants. Incorrect
progression
Inappropriate post injury
procedures (incorrect or
not prompt) If first aid is
initiated, must be done so
non negligently. Avoid
quasi-medical demeanor
Assumption of Risk defense
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Assumption of risk
assumes a voluntary
encounter with known
risks; an assessment by
the individual that the
benefits of
participation outweigh
the risk
Duty of defendant to
convey adequate
information regarding
risks
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Sec IV Liability and
Risk Mgmt links
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NOLS assumption of
risk form
See also:
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Contributory,
Comparative
Risk Mgmt Matrix
Risk Mgmt Plans
Waivers:
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A waiver is a type of
assumption of risk contract,
whereby an individual
exchanges the defendant’s
common negligence for the
opportunity to participate.
In a sense is a contract that
allows a party to be negligent
towards another. (common
level).
Waiver contracts are
unenforceable against
children as children lack the
legal capacity to enter into
contracts
individual assumes risk
(common negligence level)
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Waivers are narrowly construed
and are found to be void as
against public policy in some
cases.
The value of a waiver is informed
consent.
Best use of a waiver is by private
enterprises and adult participants
Do not confuse waivers with
assumption of risk forms (not
contracts) or medical release
forms (used to allow treatment)
by not parental supervisors
Parents cannot contract away
the rights of children…who can
sue when they reach the age of
majority
Waivers can lower the standard
to gross negligence but
recreational use statutes are the
preferable approach for public
agencies.
General
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Most legal problems start out
as public relations problems:
Individuals don’t sue people
they know, like and respect
(generally)
Is your agency projecting an
image of due care?
Without admitting liability, a
little tea and sympathy goes a
long way in forestalling
potential litigation
Avoiding out of court
settlement is often desirable so
as to not set a precedence
(but that decision if often
made by the Insurer, not the
Agency).
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You will be sued !!
Using the strategies in this
presentation though,
should reduce your
likelihood of losing.
Bench vs. Jury trial each
have different advantages.
Most plaintiff layers would
prefer a bench trial.
Defendant- party being
sued
Plaintiff – Complaining
party (party doing the
suing)