Safety & Protection for All: How the Right Risk Management
Strategy Makes Recreation More Enjoyable
By Jessica Royer Ocken
"Risk management" is one of those important-sounding terms that may or may not be adequately understood. However, particularly in the recreation business, it's a term that truly is important—not just to understand, but to implement and keep updated.
An effective risk management strategy is your best means of making sure your park or pool or soccer field is as safe as possible for those who come to play, and your best approach to keeping your organization covered if (perish the thought) an accident occurs and a potential lawsuit arises.
To help you take stock of your current risk management situation, as well as nail down that pesky definition for the term, Recreation Management has consulted an assortment of experts in the field to get their top tips and professional recommendations. And, in case the answers that follow spur you into action, we've also included insider suggestions on the best places to seek more information on this timely topic.
Q: What should an effective risk management policy do? How does risk management relate to safety?
"Everything having to do with risk management also has to do with safety, but risk management is a more global term," said attorney Don Ornelas, Jr. "I look at [risk management] as a proactive thing. The more you do at the front in terms of risk management and safety, the less likely you are to have incidents that lead to lawsuits. So, keep the stairs marked, clean things up when you need to, keep things maintained, avoid circumstances where people may get hurt…. If you follow risk management procedures, even if there is a lawsuit filed, it gives your attorney a lot to work with for the defense. It's all about reducing risk."
Kevin Hoffman, director of member services for Park District Risk Management Agency (PDRMA), agrees that there's a link between risk management and safety. "Safety gets interchanged with risk management, but risk management is a more strategic approach, looking at everything that could happen," he explained. "It is a process of identifying and assessing risks, managing the risks and making changes to ensure the ongoing objectives of the agency…. In parks and recreation, if people are getting hurt, they're not having fun."
However, all of the experts point out that risks and injuries cannot be eliminated entirely. "You want people to get hurt for the right reasons, not the wrong one," Hoffman added. "If they twist an ankle running around a base, OK, but if the base is not secured properly and they break an ankle…" That's more likely to be blamed on negligence by the maintenance staff than on an abundance of Gatorade-fueled competitive spirit.
Adding further illumination, Dr. John Otto Spengler, chair of the American Association for Physical Activity and Recreation's (AAPAR) Safety and Risk Management Council and associate professor at University of Florida, noted that "risk management is often used in economic terms to talk about financial loss, but what we deal with really centers on safety. There's an intersection between law and risk management: trying to keep facilities and programs safe so people don't get injured, and therefore also preventing or reducing the probability of lawsuits and financial loss and all the bad things that go along with that.
"There's also an insurance component," he added. "Cities and municipalities are insured and parks are covered, but oftentimes there's a limit on the amount for which they're covered. We understand that insurance exists, but don't use that as a reason not to be proactive and provide for safety."
Q: What are the essential components of a risk management policy in a recreation setting?
"One way to look at [risk management] is plans and procedures, and they're specific to different types of programs or events or potential safety risks," Spengler said. For example, in an environment like Florida, a lightning safety plan is essential. Such a plan might include a person who watches the weather and someone who is responsible for suspending or calling off games and practices in case of lightning, then resuming them. It might include a lightning prediction or detection system and staff trained in CPR and first aid. "Most [lightning] victims die from heart failure," Spengler explained.
However, more generally speaking, effective risk management plans include the following components:
"One is identifying potential risks, specific hazards like exposed sprinkler heads on a field or unsafe terrain of some sort or maybe an open gate to a pool where kids might get in after hours. You should also think of general hazards like lightning," Spengler said.
"The second part is evaluating risks. In evaluating you have to think about two things: severity of risk and probability of risk, how likely it is to occur," he said. "Lightning, unless a storm is on the way, is not that likely, but it is very severe. The same with aquatics. There may be moderate likelihood but very severe risks, such as drowning or spinal cord injury." If both severity and frequency of a risk are high, you'll want to do something to reduce the risk. Less severe or less frequent risks should be prioritized and addressed as you are able.
If you determine the risk's severity and probability to be "in the range where you need to do something about it, then the next step is risk treatment," Spengler added. Find a way to address the situation and reduce the risk of danger. A playground may become dangerous when sand or mulch gets pushed away from under the equipment, so have regular maintenance scheduled. If lightning is common in your area, enact a plan to protect children during outdoor organized sports activities, he suggested.
Spengler also noted that "having plans and procedures in place isn't enough. These have to be communicated to the staff and regularly practiced." Staff members should know the plan, what their part will be and how to perform that task. "In an emergency, people may not know how to react unless they've practiced," he added, noting that in one tragic case, a boy who went under at a municipal pool was retrieved by the staff and given emergency first aid to try to clear the water from his lungs. However, the staff member who went to call for help didn't return for a very long time. "The staff didn't know to dial 9 to get an outside line," Spengler said. And unfortunately, because of this, help did not arrive in time. "It may seem simple, but in an emergency, details are important," he said.
In addition to creating and implementing this sort of strategy, Ornelas recommends that you hire someone to be in charge of it: a trained risk manager. This person can then keep track of risk management for your entire organization, including adopting necessary procedures, placing signage where needed, and making sure the staff is trained appropriately.
"You also have a point person that an attorney or insurance company can deal with, which is important not just for litigation or liability, but because insurance companies base premiums on loss history," Ornelas said. "If you have a risk manager, your loss history [your track record of previous accidents and incidents] is probably better than someone who doesn't."
Another benefit? "It just looks more professional," Ornelas said. That in itself may be a deterrent against lawsuits, he added. "It shows you have it together."
He also stresses that "having it together" is a key component of effective risk management. "Part of risk management is not only doing the things you need to do, but documenting so you can prove you did them if you get sued." A risk manager can coordinate and organize recordkeeping on how often facilities are cleaned and maintained, as well as paperwork like signed releases and waivers.
Q: How do you communicate your risk management policy to your patrons? Can it be implied in some cases?
"Look for point-of-contact places to convey messages," said PDRMA's Hoffman. Recreational program brochures can include information about accessibility and special notes about seasonal issues and hazards: stay away from the pond, keep off the ice, limit sledding to sanctioned sled hills and so on. "Maybe note that your facility doesn't carry medical insurance, so visitors should check their own coverage before playing," he added. Brochures can also remind readers about local ordinances, such as no dogs in the park.
Another way to communicate is signage in parks themselves, Hoffman added. Prominently placed on-site signs serve as inescapable reminders of everything from the rules associated with using the skatepark to the fact that alcohol is not allowed on park premises. "You may also do a public service announcement on a loop in the lobby of a large fitness center," he said. "If you're closing something because of a hazard or vandalism, use signs and barriers, so if there's a danger the public is aware. Make [your barriers] obvious and provide a level of warning. Then, if they circumvent them, they become trespassers, and you have a defense. You can't be everywhere all the time," he added. "People do weird things."
Finally, local ordinances can go a long way toward providing a base level of safety and protection for parks and their users. "Even if they're not posted, [these local laws] are publicly available and can help set the rules. If someone doesn't follow them, [ordinances] can be relied on for a legal defense." For example, with a good blanket of snow on the ground, sledders may choose their hills poorly and rocket down steep embankments near busy roadways. "We'd recommend putting up a No Sledding sign, but also enact an ordinance," Hoffman said. "Then even if they don't see the sign, you have a non-intended use law in place to protect the agency."
Ornelas agrees that signs and other markers should be placed everywhere they can. "On bleachers or stairs, paint yellow or red as appropriate. If stairs are steep or slick, put a surface on the walkway, but also a sign to indicate this," he said. "Even for obvious things, it's still a good idea to have signage, [such as] 'play at your own risk.' If you don't have that and get sued because someone gets hurt, you could make the argument that they're assuming the risk [when they choose to play], but [the argument is] stronger if you have a sign or someone there supervising.
"Every little bit helps." he added. "Risk management is a cost/benefit thing. As an attorney I recommend doing it all, but as a practical matter it's not always that easy because of money. The more you can do with your budget the better."
Make sure your warnings are appropriate to the situation, Spengler added. "Let's say it's a playground. You want to have signs indicating, where appropriate, that parental supervision is required, the age limits for equipment use, and warnings for areas that are considered to be likely areas of injury…. It's not wise to rest on an assumption of risk, but warnings—verbal, via signage and in waivers for activities or events taking place—can all help put the user on notice that there are risks involved. [This is essential] not just from a legal standpoint, but also an ethical one. You want people to know the risks so they can decide to do or not do [the activity] and know the possibilities to have a fun and safe experience."
Q: Is it essential to have an attorney involved in developing your risk management protocols and documents?
"Any contracts or waivers [you're creating], you want an attorney to do it," Ornelas said. Legal experts are most likely to know what will hold up in court. For instance, rather than tossing in a provision for everything you can think of and creating a giant document, Ornelas and his firm recommend a smaller contract, and also a separate waiver document that is brief and to the point. Make sure the average person can wade through the amount of information you're presenting and clearly understand what they're signing.
Beyond legal documents, policies and procedures could be drafted by your risk manager, but then send them to an attorney for review, suggested Ornelas. "You'll save money by not having an attorney draft these documents."
An attorney advisor can also be helpful when it comes to staying current with playground and equipment standards and ever-changing laws, particularly those that apply in your state, Hoffman noted. This is a big part of the services PDRMA and its two in-house attorneys offer their members in the state of Illinois. "What you spend on an attorney for a good opinion in an area of sensitivity can pay dividends," he said. "You want to be compliant and on the right side of law. If you have a bad incident, involvement of an attorney early on is crucial so you can develop a good, solid defense."
Q: Are there common mistakes made or challenges encountered by park districts and recreation facilities when it comes to having adequate risk management?
"An obvious [mistake] is if they're not maintaining things properly," Ornelas said. "Say there's a broken swing at the playground. You need to take it out of service. If there's exposed metal on a jungle gym, close it until that's fixed."
Ornelas also mentioned again how important recordkeeping is to risk management. "[Once] you have it fixed, you need to establish documentation to show/prove you were doing it, and this needs to be followed and filed away in a professional manner," he said.
In addition, be mindful of the way you are following the procedures you've established. Ornelas recalled a visit to a motor speedway where he was presented with a waiver to sign before entering a restricted pit area. However, "they had folded it over because the clipboard wasn't big enough. I just saw the part where I needed to sign," he said. "I could fight that in court."
Instead, patrons should sign an attorney-approved waiver, after having a chance to read and understand it, and you might even give them a wristband or other identification that indicates they have signed.
Hoffman noted that park districts may make the mistake of failing to be adequately informed about their insurance options. Always choose "current form" coverage, rather than a claims-paid or claims-made policy, he said. "With current form, when you buy a policy for a year, if anything happens in that year you have coverage. Then, five years later—a kid can file a claim until the age of majority—that year is insured forever."
Spengler added that one of the challenges of risk management is that the issues facing any given park or aquatic center are likely specific to that location. Geography and weather conditions can be factors. Urban areas face different risks than rural ones. However, "there's a real thirst for more information about risk management and the types of things that can or should be done," he said. "You have good, conscientious people working in these programs, but it's a matter of getting this information on their radar."
Hoffman agrees that staying informed is a constant endeavor. "Things keep changing, and there are new laws and regulations," he said. "If you have a loss and the cause is noncompliance with the law, you really don't have a defense. Tort laws have a lot of defenses if you blow it or do something dumb, but if you break the law, courts are not very forgiving."
All types of organizations—from the National Athletic Trainers Association to the National Weather Service to the Consumer Product Safety Commission—are now coming out with recommendations relevant to recreation risk management, Spengler said. "Those sources are not [related to] parks and recreation per se, so they're not sources within our world, but they're sources we have to know about," he said.
Making risk management a priority and broadening your scope can be a big step toward staying informed and keeping your programs and facilities as safe as possible. "There's lots coming out and coming out quickly," Spengler added. "[Parks and recreation managers] need to know where they can find that information."
Taking these words to heart? See the Risk Management Resources sidebar for tips on how to get started in your quest for current risk management information and a strategy to make your facility as safe as possible—for you and your patrons.
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