Guest Column - February 2010
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Risk Management

Preventing Injuries or Preventing Lawsuits?

By Jim Moss


If Risk Homeostasis is a real basis for our lives, how can you design a safe park, playground or camp? The person who takes the bigger risk may not bring home more protein, but they bring home greater personal self-value and possibly the adoration of their peers. We see this in teenagers every day.

There may be some people who are natural risk-takers, who are always going to push every limit. However, that does not explain why the majority of children climb to the top of any playground equipment. The first question asked by every ski school student, no matter his or her ability, is, "When do we get to go into the terrain park?" They may not know anything else about it, but they know it is risky and exciting.

Yes, there are risks to accepting the theory, but there is also a lot of peace of mind. If you can never achieve your goal—no injuries—then you will always be unhappy.

If your goal is no claims or lawsuits, you can significantly increase your chances of achieving your goals.

But how? First, you need to understand there is no direct correlation between lawsuits and injuries. In the United States, we have come to believe that the two are intertwined. They are not. One is required for the other, but just because there is an injury does not mean there is a lawsuit.

You need to educate your patrons, participants, guests and customers. Through your Web site, your signage, your interaction with them, you need to inform them that they are responsible for their safety. They need to know that no place is safe. Accidents and injuries happen and you cannot stop them. Just because accidents and injuries happen, does not mean that you are liable for them.

This simple theory presents the classic "catch-22" for any manager. How do you change the perception in the mind of the parents or participants and not worry about accidents? Yet at some point in time, the playground will not exist. They barely still exist from my child hood in comparison to what is around today. At some point, swings do not work because the riders are scraping the ground and hitting their heads at the same time. (Which will then turn swings into hurdles?) A major risk management discussion will be whether we should have any grass because the underlying earth is harder than 14 inches of rubber mats.

No, I am not saying that you can ignore sharp edges and broken equipment. Maintenance must always occur, and thought must go into any purchase to evaluate its risk. However, at some point, we just accept the fact that people get hurt while enjoying life.

You cannot keep people safe. It is not in their nature to stay safe. Focus on risk management, not paying claims and staying away from courtrooms by teaching your patrons to be aware, and that they are responsible for their own safety and their injuries.



ABOUT THE AUTHOR

Jim Moss is an attorney, speaker and writer for numerous publications. He maintains the Recreation Law Blog http://rec-law.blogspot.com/ where he educates, entertains and pokes holes at the recreation legal community. He is an instructor for Colorado Mountain College teaching Risk Management for Ski Areas and Business Law. He has a new textbook being published this year titled Outdoor Recreation Risk Management Insurance and Law.