Protect Yourself

Effective Risk Management Needs Strategy, Supervision

By Deborah L. Vence

You never can be too careful when it comes to ensuring that your patrons are safe at your facilities, which is why having the right risk management policies and strategies in place are so important.

And yet, risk management strategies only can be effective if they are developed and supported by the highest levels in an organization, said Kevin Hoffman, director of member services for the Park District Risk Management Agency (PDRMA) in Lisle, Ill., an organization that specializes in developing, implementing and monitoring customized loss-control programs.

"This may be an agency, board of directors or agency director. To be effective, a good risk management policy is only as good as the actions and support provided by management. If they are going to 'talk the talk, you've got to walk the walk,'" Hoffman said. "Support for risk management can be shown through director attendance at safety committee meetings, budgeting for risk management programs and holding staff accountable for not following established safety practices."

Hoffman, along with other risk management experts, offered up feedback on the effective strategies recreation facilities should adopt to deal with risk management, as well as the rules or laws such facilities should know and be abiding by.

Get a Checkup

Facilities that protect themselves from possible legal action, due to an injury, are able to do so because of formal and documented inspection of facilities, parks, playgrounds and equipment.

That is, "Scheduled safety and maintenance inspections first work to prevent injuries from occurring, as they can uncover any hazards or maintenance issues that need to be corrected. In essence, no injuries, no lawsuits," Hoffman said.

However, when an injury and corresponding litigation does occur, inspection documentation shows a conscious regard for safety in that your agency has implemented a proactive and timely system to identify hazards and correct them, thus, preventing injuries.

"Good quality and comprehensive inspection documentation can be a strong affirmative defense that can deter litigation by showing that your agency had taken reasonable steps to identify hazards on a timely basis and correct them," he said.

For example, no one can monitor the condition of outdoor playground equipment all of the time, knowing that vandalism and other hazards can be created or develop between inspections.

"Unless notified of broken equipment by the public or identified by an inspection, it is unreasonable to hold an agency (especially public agencies) liable for injuries that occur from hazards that are unknown to the agency," he said.

The Right Course of Action

Successful staff safety programs should include training and procedures for various types of risk.

An example of a staff safety program would be a "maintenance safety program that shows staff proper lifting techniques, first aid, safe equipment operating practices, connecting and disconnecting hydraulics or power-take-off equipment and similar," noted Bill Beckner, research manager for the National Recreation and Park Association (NRPA).

Great Wolf Resorts in Madison, Wis., employs simple risk management strategies, said Franceen Gonzales, vice president of risk management for the resort.

They include:

  • Be best-in-class and prove it. Have great people on the team that are very competent in their area of expertise. They are the stewards of the strategy and leaders of performance-driven teams. Audit what they are doing. Have ways to measure performance and celebrate excellence.
  • Be process-driven. Have well-developed programs that make the operation predictably safe. Utilize the program consistently.
  • Be a nimble communicator. Have a communications plan and utilize a user-friendly system. When implementing a program or reacting to incidents, the team needs to act quickly and have information at their fingertips.
  • Be a values-based organization. Have a shared philosophy of dealing with situations with transparency, empathy and fairness. Quickly resolving situations and genuinely showing that you care builds trust that you will do the right thing. A values-based organization manages all facets of risk the same way at all levels of the organization.

"I think these strategies work well because they are based on simple principles," Gonzales said. "We want our people to be the best at what they do. We find excellent leaders that will take the plan and implement it well.

"They are driven to perform and we measure that performance. Any program developed has a higher chance of being successful when you have a proven leader driving it. Our programs and processes always have an objective," she said. "We have a vision of a positive outcome when implementing a new program. Anytime we are implementing a program, we have to be good communicators to make sure everyone is clear on the expectations."

Great Wolf Resorts also uses many different communication tools from incident reporting to posting new training programs.

But, "Most importantly is trust," she added. "When the team trusts their leaders, they want to put the strategies to work, even when they aren't looking."

To address risk management, in general, the strategy always should fit the need. For recreation, sports and fitness facilities, it's important to look at the various facets of risk, Gonzales noted. She suggested that facilities:

  • Address the common risks to the business with baseline programs. This could be off-the-shelf risk management programs that address compliance and industry safety standards.
  • Address the unique risks of the facility. This may take looking at incident trending, near-miss trending, or simply observing the facility at various times. Perhaps the facility has unique amenities or equipment and that may require a specialized policy, training or inspection process.
  • Address the clientele. Each facility may draw a different group. One may have a lot of retirees and others may have all kids. One may be an urban setting and another with different cultures represented. Identify what the risks are with the type of clientele and address it by managing behaviors through awareness campaigns, signage and staff reinforcement.

Meanwhile, Beckner said effective risk management strategies should include the following:

  • The closer a facility is to breaking even financially (recovering cost through revenue at 100 percent return), the more liability a facility assumes for injuries.
  • Ensure that all facilities have posted and easy-to-see rules of use and safety.
  • If staff has direct responsibilities for safety (lifeguards, pesticide applicators), be sure they are appropriately trained and certified.
  • Maintain records of training, inspections and details about equipment provided with participant signatures where appropriate.
  • Be proactive. If a customer is injured, visit with them at the first opportunity. With legal advice offer them any appropriate assistance.

To provide more details on the first point—that the closer a facility is to breaking even financially, the more liability a facility assumes for injuries—Beckner explained that "Until the mid-1970s state law and the courts were inclined to require injured parties to show that the department or facility operators had acted with gross negligence in causing the injuries incurred to an authorized user of the facility.

"After that time as fees became more common and departments or facilities charged higher fees and expected customers to pay the full cost of the experience, the state and the courts began to view them as having a higher-level of responsibility for the safe operation of the facilities," he said.

"Legal actions by plaintiffs were more favorably reviewed by the courts, and simple negligence was more likely to result in a positive finding for the plaintiff. This significantly increased the awards to plaintiffs as a result of common operating errors."

To boot, the types of systems that are more automated, leaving more opportunities for something to go wrong, such as "equipment hydraulics, chemical application systems and a myriad of maintenance and operation equipment can create problems." One example Beckner gave was of an automated mix valve that combined muriatic acid and chlorine malfunctioned in a swimming pool creating an overdose of chlorine gas [that] hospitalized several swimmers.

Keep Tabs on Loss Reports

To establish an effective risk management strategy, experts say it is also important to be aware of your agencies' actual loss history and your exposures to loss.

"You need to continuously review insurance and internal loss reports to identify trends where your staff and patron injuries are occurring so that you can take action to prevent future losses," Hoffman said.

For example, if aquatics staff are suffering slip-and-fall injuries, facilities should consider prevention programs, such as a footwear policy that requires the use of water shoes to reduce slips and falls when climbing onto lifeguard chairs, working in wet locker rooms or when conducting in-service trainings like back-boarding, Hoffman said.

Equally important is looking at the legal concept of negligence and its potential defenses, noted John Wolohan, professor and graduate director at Syracuse University.

Negligence is defined as an unintentional tort that injures a person, property or reputation. The greatest number of lawsuits brought against sport and recreation providers is based in negligence liability. (Negligence is caused by the failure to use such care as a reasonably prudent and careful person would use under similar circumstances.) The four elements of negligence are: duty, breach of duty, proximate cause and damage.

For risk assessment, Wolohan said that it's important to look for what kinds of liabilities exist and the types of exposure they might have. "One of the first questions to ask is: Who's using the facility? And, depending on the age of the participant and type of facility, you're going to have certain obligations," he said. The younger the patrons are, for example, the more supervision you will need.

Other issues to consider are in regard to supervision. Are there too many people where they can't be properly supervised? Depending on the activity, you have to come up with the type of supervision that's going to be required.

Features of an Effective Policy

Some of the most important components of a risk management policy should include a clear statement of risk/safety management for internal (staff and related resources) and external (direct and indirect customer) sources.

Beckner said such a policy should include:

  • A staff safety program, including training and procedures for varied types of risks such as equipment operation, chemical application, use, storage, etc.; basic daily functions (repetitive motions, lifting, climbing and similar).
  • Facility inspection criteria by facility, frequency, expected standards of life and replacement.
  • Facility rules of use, forms permits, authorizations.

Gonzales said Great Wolf Resorts' program has several components to its risk management policy:

  • Conduct risk assessments. This helps to identify physical, behavioral, financial and integrity risks.
  • Develop programs to mitigate risk. Identify the issue, establish the objective, determine the steps to mitigate risk, and support the position with data sources.
  • Establish written policies. These need to be clear expectations of actions, behaviors or processes to be implemented.
  • Implement training. Simply publishing a policy is not enough. Conferring the information in a way the audience will understand and practice is important.
  • Measure performance. Inspect what is expected and measure excellence in meeting the expectation. Look at leading and lagging indicators to see if the program moved the needle in mitigating risk.

Know the Rules

Besides knowing the safety issues and potential risks involved in running a parks and recreation facility, many new laws have been approved that affect the industry and that facilities need to follow.

"Your staff needs to be aware of them and act to comply. Examples include AED laws, federal accessibility regulations, playground safety standards and soccer goal anchoring requirements. In most states, violations of laws or statutes can create a 'strict liability' environment that can significantly impact your agency's ability to successfully defend itself," Hoffman said.

"This is especially important for public parks and recreation agencies that commonly are afforded state governmental immunities that often cannot be raised as an affirmative defense when a loss or injury is caused by the violation of a statute," he added.

For example, the Soccer Goal Safety and Education Policy, also known as "Zach's Law," is "adopted pursuant to the Illinois Movable Soccer Goal Safety Act. The Act requires [name of park district] to create a policy to outline how it will specifically address the safety issues associated with movable soccer goals." (Zach Tran was a 6-year-old boy who died several years ago after a soccer goal fell on top of him. Less than two year ago, Illinois Gov. Pat Quinn signed legislation that requires all movable soccer goals manufactured and sold in the state of Illinois to be tip-resistant.)

One section of the Soccer Goal Safety and Education Policy states that "prior to the commencement of the soccer season each year, the district will place and secure movable soccer goals on its property in accordance with the safety guidelines. Only the district shall be permitted to move any movable soccer goal the district owns, installs or places on its property. It goes on to say, "Thereafter, if a movable soccer goal becomes unanchored or improperly secured, only authorized personnel shall be permitted to re-secure it in accordance with the safety guidelines."

On top of established rules and regulations, Beckner noted a few other issues that have come about in recent years that facilities should be aware of. They include:

  • An increase in revenue cost recovery has made defense of gross negligence harder to win in court.
  • Systems are more automated, leaving more opportunities for something to go wrong.
  • Use of AS standards places higher burden on providers to meet those standards in adjudicating the court cases.

And, with regulatory issues at the forefront, Gonzales said, "Whether VGB or ADA or other new regulations, our industry has had a lot to plan for in recent years. Some of these can be quite expensive, and it is important we understand the obligation to comply with the law.

"Making our facilities safer or more accessible for more people to enjoy is a good thing. But government also needs to understand the impact to the industry, how solutions are implemented in our unique environments, and make sure the spirit of the law is effectively communicated," she said.

Having safer facilities also means giving more attention to the risk of drowning for children under the age of 6, Gonzales said, noting that there are fewer places for children to learn how to swim.

"Aquatic facilities have become more shallow in pool depth to minimize risk," she said. "In turn, many parents see a shallow pool and a lot of lifeguards and think that it's OK to leave their child on their own.

"Parental supervision and teaching a child to swim not only minimizes risk, but also offers a great experience of family togetherness and provides a life skill for a child to enjoy recreation all their lives," she added. "The recreation industry can do a lot on many fronts to address this issue."

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