The Price You Pay for the Games People Play
What employees need to know about protecting themselves, the facility and management from lawsuits
By Wayne L. Mitchell
Lawsuits are only fun for the attorneys and plaintiffs (if they win). Even if you win a lawsuit, as a defendant, you lose. The description you read in the newspaper seldom resembles the facts. Your credibility is impugned. Your employees' attention to their jobs is disrupted. Staff morale is effected. Many hours of you and your management team's attention to the job will be wasted. And let's not forget to mention the impact on your insurance premiums.
Although we design, build and operate our facilities with the safety of our guests foremost, accidents and lawsuits are still possible. In this day and age and in this litigious society we live in, lawsuits are always possible and sometimes probable. Is your facility doing all that it can to protect itself? Here are some defenses and proactive procedures that can reduce the chances for a lawsuit.
First and foremost, all employees, in their "New Hire" orientation, should be taught incident and accident methodology and the importance of never admitting in public to anything. This is crucial. When giving a report of an incident, report only the facts (not your conclusions or conjectures). Many times employees will supply clumsy guests with sympathetic alibis for their inattention to their own actions. Employees should be prepared to administer first aid but not supply excuses for the incident.
Second, all near misses should be reported. Too many times, if there was no injury, no report to management is given. These are the valuable incidents that supply management with information needed to make changes. No report—no change.
Third, giving information to the press should only go through your management or PR department.
Fourth, get the reports written as soon after the accident as possible. Time dims and expands our memories. Details disappear and reappear, exaggerated with time.
Additionally, all rules should be enforced, all the time. If there is no reason for the rule, get rid of it. If there is, enforce it. Most of our operational rules are based on safety rationale and occurrence history. And your employees and guests will place no more importance on your rules than you do.
The importance of pre-opening inspections and the recording of these inspections are great defense tools for your attorneys. WARNING: Maintenance and repair considerations that go unheeded will come back to beat you to death in a lawsuit. If something's broke—fix it. Employees should be made aware of Go/No Go conditions when conducting their pre-opening inspections. All discrepancies should be reported to management. It's a good idea to develop an inspection checklist and run it by your insurance carrier or attorney and find out how long you should store these on file.
Training records for employees, attendance records, disciplinary records, maintenance records, incident reports, awards, equipment installation records, Standard Operational Procedure manuals and program initiation records should be kept and kept up. Check with your insurance carrier and/or attorney on how long these records should be retained.
You may also want your attorneys to create statements of understanding and/or waivers for high-risk activities, that is parasailing, jet skiing and so on. Also check on the need for parental-consent waivers. These waivers and statements of understanding do carry weight in a lawsuit, particularly if the risks are described.
Develop in your Standard Operational Procedure manual a procedure for what to do when an incident occurs. Here is where training comes in. Some excellent rules of thumb are as follows:
In case of accident/injury to a guest or employee
- Remain in control of yourself and others around you.
- Staff/management has a legal duty to come to the assistance of participants, or if not qualified, to call for assistance and provide first aid.
- The rescuer must use reasonable care and do no more harm.
- Management and staff must maintain currency of training based on "Standard of Care" in the industry.
- Do not admit to anyone that you or staff are responsible for the incident.
- Give only the facts to authorities, not your conjectures or conclusions.
- Contact family members. Don't let family members be notified by the media.
- Notify management immediately who should notify your attorneys/insurance.
- If equipment is involved, guard and preserve equipment until it is inspected and cleared.
- Make your own detailed report, including witnesses, facts, etc., for your legal council only.
- Have witnesses dictate recollections of incident (facts not opinions).
- Contact all associated with the facility, equipment, suppliers, designers, installers and so on.
- Talk to victim's family after consulting your attorneys.
In a negligence lawsuit, four items must be proven by the plaintiff. First, there must be a duty that is assumed by the defendant. Permission to enter, participate or engage places a duty on the proprietor whether by an admission fee or by open access. Second, there must be a breach of that duty. Third, the breach of that duty must be the proximate cause of the injury/damages. Finally, there must be injury/damages as a result of the breach of duty related to the proximate cause.
We as owners/operators of recreational facilities can reduce our exposure to lawsuits by making all "reasonable" attempts to provide a safe, accident-free environment, adequate training for our employees and good enforcement of our operational procedures to ensure the safety of our guests. We must make prudent precautionary assurances to maintain our facilities to the standard of care expected of us in the industry.
Wayne Mitchell recently retired as senior safety administrator for Walt Disney World Safety Department after 30 years of service, with prime responsibilities for guest and employee safety for all Disney recreation venues. He can be reached at Mickeydive@aol.com.