Risk Management

Preventing Injuries or Preventing Lawsuits?

By Jim Moss

Risk management is always a hot topic. It is my full-time job. However, after watching risk management change for 25 years, I am becoming either a little jaded or very concerned about the direction of our industry.

Risk management used to mean to prevent claims or lawsuits. You wanted to run your program, design your park or build your playground in a way that prevented you from paying out money. Nowadays risk management means no injuries.

At some point, the goal and definition of risk management changed from preventing claims to preventing injuries. We went from worrying about paying money for a bruised elbow or a scratched knee to totally preventing them. Our patrons either went along with this idea or encouraged it, so that now they too believe that the places they play should be safe.

The reality is we cannot make anything safe. No matter how low to the ground, how padded or how well designed, someone will figure out a way to use it differently or in a way that allows them to get hurt. This idea that humans encourage getting hurt has even been given a name: Risk Homeostasis.

Risk Homeostasis, or as it was first known, Target Risk, is the theory that humans are not meant to be comfortable when they are safe. Target risk is defined by Gerald Wilde, Ph.D., as "the level of risk a person chooses to accept in order to maximize the overall expected benefit from an activity." Once we find a safe spot in our world, we push the boundaries to make it unsafe again. The examples are taxi drivers in Munich, Germany, who had an average stopping distance with their older model cars and braking systems. When they got new cars with antilock brakes, the average stopping distance decreased significantly. However, accidents stayed relatively the same, although there were slightly more accidents with the new ABS brakes. Studies have shown that skiers wearing helmets ski faster than when they ski without a helmet.

The opposite of that is also true. A study from Leeds and Bolton universities found drivers traveled closer to cyclists in bike lanes then when there were no bike lanes. Another study found drivers traveled 6 inches closer to cyclists wearing helmets than those not wearing helmets. If we think you are safe, we will put you at greater risk.

When you apply this theory to a park, playground or camp, it explains why health centers and emergency rooms always have patrons. Safe is not what we want life to be. Look at the idea this way: The person who was satisfied eating mice did so because there was a low degree of risk in hunting mice. The person who ate the mastodon had a much higher degree of risk and probably a higher return for his efforts. He received more protein for his family and had a lot of food. Our ancestor who went out and took greater risks probably increased his family's chances at life. Are we preprogrammed to go for greater risk? If so, how can we make something safe?

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.


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.

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