Risk Management.docx

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Department
Exercise Science and Sport Studies
Course
01:377:204
Professor
Dougherty
Semester
Fall

Description
Risk Management in Sports Administration CH. 1 INTRODUCTION & OVERVIEW Injuries • Accidental, an inherent risk of physical activity • The predictable result of a lack of accidental control and planning • Direct vs. indirect o At football camp you wear pads to prevent injury (direct), but it could be hot and you get heat stroke and dehydration (indirect) • Accident prevention vs. injury prevention o Equipment wears out and breaks, vs. dropping a weight on you Accidents • Unintended causes o Dropping a weight on your foot at the gym. You go not intending to hurt yourself, but it happens anyway • Undesirable effects o Wear and tear on knees as a track runner • Relatively sudden o Being a pitcher and all of a sudden his shoulder is dislocated • Damage for physical energy • Pure vs. speculative o Pure is something you know will be there, but speculative are things that are important to think about but are so far out of your control that you don’t ever consider it. o Terrorism is a risk, you could always prepare for it, but the possibility that they could attack a building is too far out Risk vs. safety • Risk is something we measure • Safety is something we judge Risk reporting • Relative risk o On a scale of more to less o Is it risky for someone to wear a helmet and someone else not? What is the probability that something bad will actually happen? o You are more at risk of dying in a car accident on thanksgiving, yet people will still go out in their cars • Probability of occurrence o Project future losses based on the record of past events o You could land on black 100 times, but you STILL have a 50/50 chance of landing on black again. Each time is not related to each other, they are completely independent • Relative exposure rate o Presented as a factor of the number of participants over a specified period of time o The difference between 90% & 99%. Only 9% difference, yet its 1/10 vs.1/100 chance you will get hurt….big difference Risk Management • Understanding those circumstances in which losses are most likely to occur • Designing and implementing policies to minimize the likelihood of their occurrence • Taking appropriate steps to minimize the impact of those losses that cannot be avoided • Maximize the number and variety of programs offered • Enhance financial stability • Protect physical assets • Maintain good public relations • Provide patrons with the safest possible experience CH. 2 & 3 MANAGEMENT OF RISKAND SAFETY Risk Management Plan • Systematically analyzes the services offered • Asses the potential for los • Selects approaches to best handle the loss potential • Must be tailored to the particular organization • Requires ongoing review and modification • Components: o Monitoring and modification o Risk analysis: requires study of the nature of the activity and the applicable professional standards and guidelines. Involves a detailed analysis of the program in light of the frequency severity and predictability of the possible human and financial losses  Sources of professional standards and guidelines • Rules of the sport • Professional associations • Learned treatises • Statutes, codes, and administrative law • Codes of ethics • Case analysis and court decisions • Common practice  Estimation of potential risk • Severity o Impact on the program o Magnitude of loss • Frequency • Probability of loss • Predictability o Alternative control approaches:  Elimination of risk factors  Program and operational controls • Procedures: the detailed instructions of the plan. They indicate the authorized method(s) of dealing with situations within the limits of accepted policy • Policies: position statements by upper level management that define the limits of the powers and responsibilities of their subordinates o Common policy topics  Staffing policies • Personnel needs • Job requirements • Duties • Use of volunteers • In-service training • Evaluation  Medical information policies • Pre-participation examinations • Checklists • Return after injury or illness  Medical emergency policies • Appropriate first aid • Activation of emergency medical system • Follow-up  Facility safety inspection policies • When and by whom • What will be inspected • Documentation • Reporting • Remediation • Follow-up  Participant management policies • Where participants are permitted • Time constraints • Keeping participants form restricted areas • Participant traffic flow • Personnel needs for participant management  Emergency evacuation policies • When facilities will be evacuated • How evacuation will be conducted • Decision-making and reporting  Transportation policies • Acceptable methods of transportation • Who may operate vehicles • Insurance requirements • Time and distance restrictions  Postponement/cancellation policies • What will cause postponement/cancellation • Decision making authority • Timelines • Notification of all concerned  Telecommunications policies • Methods of communication • Access to equipment • Required procedures and circumstances • Notification chains • Back-up procedures • Transfer: an economic approach which reduces the likelihood or extent of a financial loss. It does not affect the likelihood of an injury nor does it, necessarily, avoid lawsuits o Waivers, hold harmless, agreements, indemnification, informed consents, rental agreements and insurance o Types of insurance coverage  Named perils vs. all risks  General liability coverage  Property coverage • Chain of causation • Replacement cost • Actual cash value • Coinsurance  Fidelity and crime coverage  Automobile liability  Miscellaneous coverage • Floater policy • Flood insurance • Plate glass coverage • Excess liability • Secondary medical insurance  Retention • Self insurance or funded reserve • Joint insurance pools • Current expensing • Insurance deductables o Straight deductible o Aggregate deductible  Implementation process • Select the financial and programmatic approaches to be used • Implement the selected approaches • Monitor for effectiveness • Modify as necessary Participation agreement: formal document indicating that the participant and/or the participant’s parents • Understand and appreciate the risks of the activity • Know the safety rules and procedures, understand their importance, and agree to comply with them • Specifically request to be allowed to participate in the activity • They are legal contracts. • Requirements: o Clearly explain the nature of the activity, prerequisite skills and/or the level of physical ability o Require the participant to indicate that s/he possesses the requisite level of skills and physical condition o Identify the essential safety rules and procedures that must be followed o State in detail the inherent risks of the activity and the consequences to the participant should an accident occur o Include a statement wherein the participant agrees to assume the risks inherent in the activity and to follow the identified safety rules Developing the Waiver • Put the signature space near the exculpatory language o If there is a separation of a paragraph or more, provide a space for initials immediately after the exculpatory clause • Include a statement of affirmation that the signer read and understood the agreement • Make the waiver a one page stand alone document • Make the purpose clear in the title o Use words like waiver,” release of liability”, or “indemnity agreement” instead of sign-up sheet, roster, or membership application • Choose an easily readable print o 8-10 point or larger • Make the exculpatory language conspicuous o Focus attention on the specific statement that participant will not hold provider liable for ordinary negligence o Use boldface, underlining, caps • Specify the duration of the waiver • Include a severability clause stating that if some part of the contract is held void, there will be no effect on the remainder of the agreement • Make the wording clear and easily understood. Avoid legalese • Specify all parties, in addition to the signer, who are relinquishing claims through the waiver • Specify all parties who are protected by the waiver o Corporate entity, employees, sponsors and all others who are involved in the development delivery and management of…. • Use language that will broaden the interpretation of the waiver o In all phases of the activity…while on the premises…any and all claims arising out of… • Refer specifically to the ordinary negligence of the business or it’s employees o Gross negligence: making the obvious wrong decision (letting players play on a field where there is glass everywhere and everyone got hurt) o Ordinary negligence: ordinary things people make mistakes in (equipment malfunction) o Gross negligence is not included, you can’t not get sued forANYTHING that happens. Gross negligence is 100% your fault • Clearly describe the nature of the activity • Clearly warn the signer of the inherent risks of activity. Include a statement wherein assumes theses risks • Mention specifically any risks that are unique to this activity o E.g. health/fitness clubs should include theft or loss of personal property • Include an affirmation of voluntary participation • May include: o Disclaimer of responsibility or liability for losses o Covenant (promise) not to sue o Indemnification or loss repayment language. Signer agrees to indemnify, reimburse, hold harmless o Selection of venue where you are located Waiver in New Jersey: Stelluti v. Casapenn Enterprises, 2010 • An exculpatory agreement will be enforced if: o It does not adversely affect the public interest; o Exculpated party is not under a duty to perform; o Contract does not grow out of unequal bargaining power or is other wise unconscionable • To be enforceable, an exculpatory agreement must reflect the unequivocal expression of the party giving up his or her legal rights that this decision was made voluntarily, intelligently and with the full knowledge of its legal consequences • There is a limit to the protections that a private fitness center may exact from its patrons through the mechanism of an exculpatory agreement • If fitness center management or employees were aware of a piece of defective exercise equipment and failed to remedy the condition or if it had dangerously or improperly maintained equipment, the fitness center could not exculpate itself from such reckless or gross negligence • Aparent’s execution of a pre-injury release of a minor’s future tort claims arising out of the use of a commercial recreational facility is unenforceable (once minor is 18, they must sign a new waiver, and there must be a statute of limitations for suing) • Areview of case law form other jurisdictions reinforces our conclusion that a parent should be permitted to bind a minor child to arbitration Ch. 4&5 PARTICIPANT SAFETY Risk Management Myth • My legal responsibilities can be summed up in the prudent person principle. I must act as any reasonable and prudent person would under the same or similar circumstances o Reasonably prudent personal standard: someone who is cautious and reserved  They simply follow the rules  An expert  Applying the current written standards of the profession  For the benefit of jurors who have been chosen for their ignorance • Unlike students in a physical education class, athletes do not require continuous supervision o If the couch said “go out and warm up ill be there in a minute” and someone got hurt, and they sued the school, the coach was the prudent person and should have been present • We have a full time trainer. This relieves our coaches of worries about first aid and emergency care o If you are a soccer coach and someone gets hurt, it is your responsibility as the first responder to provide basic care to the person hurt until emergency care is available. They must call the trainer, stop practice, and are essentially the trainer until they get there o The coach is the reasonably prudent medical care provider • All of our coaches are required to have current first aid certification. This exceeds the minimal standards and virtually eliminates the likelihood of a successful lawsuit alleging improper emergency care • Every student performs every skill perfectly, every time… on the absence of evidence to the contrary o It is an unreasonable expectation. No one is perfect all the time • Don’t discuses the possible dangers of an activity with the participants. It will raise their fears and make it more likely that they will consider a lawsuit in the event of an injury o You are more likely to avoid a lawsuit if you tell people what to avoid and make sure they know what they are doing • Our maintenance staff is responsible for the care of the buildings and grounds, so unless someone notifies me of an unsafe condition, I don’t have to worry about liability in those areas o You need to create a system where you check everything and people check with you • I realize that our facility is used after hours, but no one can be expected to put away the portable goals, portapits, wrestling mats or the heavy gymnastic equipment after each practice or event • We require permission slips and waivers for all extracurricular activities and field trips. This eliminates the risk of lawsuits in those activities • If the athlete’s injury was caused by his/her own failure to act responsibly ot to follow established rules, we cannot be held liable o They should have been supervised in case they do something stupid and get hurt and sue you. • One of our participants was seriously injured by lightening. This is an “act of God” and, therefore, our staff cannot be held legally responsible o You should have known better to take them off the field at the first sign of lightening • Be sure your incident reports include a question concerning program changes which might prevent similar accidents in the future. This will be an asset in the event of a lawsuit because it clearly illustrates your concern for safety o Supervision • The quality and quantity of control exercised by reasonable leaders over the individuals for whom they are responsible • General: o Overall control of the entire group o Thorough knowledge of the subject matter o Full visual contact o Awareness of dangers or deviations from accepted procedures o Rapid intervention and resolution of noted problems • Specific: o Direct interaction with individuals or small groups o When problems or deviations are noted o When a new or hazardous activity is involved o Until the participant understands the risks and can adhere to safety procedures o Does not affect one’s responsibility for general supervision • Critical supervisory concerns o Knowledge and ability of supervisors o Sightlines/organization of group o Unsupervised facilities/activities o Published posted and enforced rules o Emergency procedures/first-aid o Control Lawsuit database: • Failure to provide proper control was claimed in 11% of all cases o 39% of the flag-ball cases  People think that because it isn’t full football, they use less padding and equipment o 27% of the soccer cases o 25 of the cases involving games o 13% of the basketball cases  Less people in a confined area • Lack of participant readiness was claimed in 7% of all cases o 35% of the gymnastic cases o 33% of the cases involving fitness o 25% of the cases involving cheering o 14% of the cases involving games • Unsafe environment was the primary allegation in: o 92% of all playground cases o 79% of all softball cases o 74% of all basketball cases o 40% of all soccer cases o 39% of all cases involving games What type of training should your employees have? • Recognized certifications • In-house training • Emergency training o CPR, first aid andAED o Other reasonably anticipated emergencies • Monthly in-service training • Spot training Selection and conduct of the activity • Physical mental and emotional readiness of the participant • What is his/her potential for success? • Critical selection/conduct concerns: o Physical and intellectual readiness o Psychological readiness o Accurate detailed instruction o Feedback o Warnings o Protective measures o Mismatch Environmental conditions • The manager must control the safety and the appropriateness of the physical environment and the equipment o Constructive vs. actual Critical environmental concerns • Regular maintenance and inspection • Accurate record keeping • Pre-use checks • Participant inspections • Safety equipment • “Buffer zones” • Appropriateness for individual users Buffer Zones • In the 2006 analysis of lawsuits, inadequate buffer zones were the alleged cause of 21% of the injuries. • Inadequate buffer zones were responsible for o 67% of the basketball cases o 50% of the cases involving games o 40% of the cases involving fitness o 17% of the baseball/softball cases • We tend to think about buffer zones largely in the context of injuries to participants • While participant injuries unquestionably form the basis of the majority of lawsuits related to the absence fo sufficient buffer zones, such claims are equally available to spectators and passersby Equipment Inspection: • Annually by an outside consultant • Weekly by management, preferably form outside the facility • Daily by management assigned to the area • Before each shift by floor supervisor • Constantly by users • Follow up after inspection o File the report o Initiate repair immediately o Isolate problems that need repair o Remove machinery that cannot be repaired within 48 hours o Verify and record completion of repairs CH. 6 EMERGENCYAND CONTINGENCY PLANNING Liability in Emergency Situation • Did the defendant have a duty to respond? • Should the possibility of such a situation have been anticipated? Forseeability • Was the situation handled promptly and properly? Breach of duty • If not, was there appropriate preparation for the response? Breach of duty • Did the failure to respond properly cause harm or exacerbate the existing harm? Proximate cause Emergencies • Obvious emergencies: non-life threatening injury, fire, fight • Those that happen in other programs: demonstration, fatality • Those we rarely think about: bomb threat, weapons, power failure Emergency Plan Topics • Fire, injury—life threatening and non-life threatening, with blood, AED, intoxicated person, fight, demonstration, fatality, power low, security breach, structural problem, suspicious person, client confrontation, lighning/inclement weather, bomb threat The development process • Bring together managers/supervisors o Decide on list of neede action plans o Develop a preliminary outline of needs in each situation o Research your needs and options o Seek input from other affected agencies • Develop a final draft of each plan • Circulate the plan to the affected agencies and secure letters of endorsement • Insure that all personnel learn and practice their roles in the various situations • Routinely review plans and modify as needed Emergency plan components • Who does what and when? o Who is the first responder o Who assists and how o Who supervises the rest of the group
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