A Closer Look
Last year, PRB posted an online survey in response to a series of articles concerning preventative measures recreation agencies can take to protect themselves, their staff and participants from liability claims arising from negligence. Twenty-five (25) questions were asked in the survey, which was available online through the summer. And now the results are in.
Where possible, I have tried to generate some useful ideas and conclusions, which are entirely my own. Any agreement or disagreement is certainly welcome as we pursue knowledge that enables us to do our respective jobs well.
1. Are you aware of any potential negligence or liability exposure conditions in your programs, facilities, parks, land areas, playgrounds, pools, etc., that may be a cause for concern regarding exposure to liability for your agency?
Programs: yes--19, no--32
Facilities: yes--29, no--25
Parks: yes--30, no--25
Land Areas: yes--19, no--33
Playgrounds: yes--27, no--25
Pools: yes--18, no--31
Not surprisingly, facilities, parks and playgrounds are areas of concern. That pools scored lower suggests that the attention paid to pools is better than that paid to other areas of recreation. Of course, pools receive a great deal of regulatory attention and monitoring as technological advances for safety appear.
Facilities are a continuing area for concern. They are often not maintained well until something noticeable or serious occurs. My guess is the age of facilities is a variable as well. (One area that was not probed, but I suspect is still vulnerable, is compliance with ADA standards and regulations.)
2. Concerning the above (question 1), have you attempted to remedy any of these conditions in the past?
3. What has/have been the result(s) of your efforts? Check all that apply.
Area was fully addressed--52.5 %
Area was partly addressed--27.9 %
Nothing was accomplished--11.3%
Still trying to remedy the situation--31.1 %
This is good news -- the data suggest that responsible leadership is at work in trying to protect people.
4. What, if anything, has prevented you from being able to address liability or risk exposure issues? Check all that apply.
Lack of clear understanding of issue by decision-makers--42.6%
Lack of awareness of managers or staff--19.4%
This finding suggests that boards or governance structures are not responding to the direction of professional staff regarding the urgency of fixing items or replacing them. This is troubling because inadequate resources are not a legally sound defense in the face of litigation.
5. Do you stay informed of liability exposure to risks?
This bodes well for the professional staff and management doing their jobs well, yet the responses to question 4 are troubling, if decision-makers are not doing their part to get issues resolved.
6. If yes, what procedures or practices do you use to stay informed of liability exposure to risk? Check all that apply.
Routine risk-assessment procedures (not specified what types)--55.7%
Staff incident reports--87.1%
Some disturbing findings arise here. Since a high percentage is from incident and injury reports, it is apparent an injury or accident has already occurred. If agencies are using this information to ascertain liability issues, they are waiting too long. Such occurrences lend themselves to greater risk of litigation. The data collected from injury reports and accidents are hard evidence that can be used against an agency in court. If it is ascertained that a pattern of neglecting conditions existed and that an agency routinely waited until someone was hurt, that agency will have a difficult time defending inaction.
7. Is anyone in your agency specifically responsible for assuring that negligence and liability issues are assessed for exposure to liability?
8. Who, if anyone, is responsible for assessing the agency’s risks? Check all that apply.
Maintenance department manager--47.5%
Depending on the size and scope of the agency, this task is left to a variety of people. I suggest agencies with limited budgets consider collaborating with local schools, colleges and universities to see if students in recreation-degree programs or related areas can help conduct surveys. Seeking parents and other users of services to volunteer might also be useful. This can also be helpful when making a case for resources if input from the community has been used to identify issues. Perhaps this might help sway decision-makers to act on items that need attention.
9. Have you had any successful efforts at reducing risk and exposure to liability in your agency?
10. Are you confident your agency has done all it can to eliminate or limit its exposure to negligence or liability exposure?
This question drew a troubling response. Although it is impossible to determine whether this is a resource issue--as I suspect it may be--or whether it is related to failed systems or other issues identified in the survey, this lack of confidence is chilling.
11. How confident are you that you have in place adequate procedures to identify early on any risks that may be developing?
Full confidence--26.2 %
Together, nearly 87% of respondents had “full” or “some” confidence that procedures are in place to help them avoid exposure to some degree. This is reassuring, unless respondents are incorrectly overconfident as the responses to other questions seem to indicate.
12. How confident are you that you could adequately defend your agency’s conduct in assessing risk in the event your agency was sued for negligence?
It is difficult to decipher exactly what confidence means until one is on the stand under cross-examination from a plaintiff’s attorney. Then, I suspect, confidence may come from legal counsel’s preparation. Of course, court is hardly the place to feel terribly confident.
13. Have you had any formal training that helps you address liability risk completely? Check all that apply.
Need more training--57.4%
These responses suggest people are aware that more training is important. They may also cast some additional doubt on confidence levels, and seem to contradict the earlier responses about confidence.
14. How would you rate your overall satisfaction with risk-management efforts in your agency?
Not at all satisfied--6.5%
15. What is the most difficult area for reducing risk in your agency? Specify only one.
Training was mentioned several times, for both seasonal and full-time employees. Budget limitations also were cited. Human errors by users or groups of users were cited as problem areas, as were vendors, contractors and subcontractors. As might be expected, playgrounds were mentioned more than once as a site that often posed challenges. There seems to be frustration in getting people up to speed.
16. Upon whom do you rely for advice and information regarding risk and liability? Check all that apply.
These responses suggest that few agencies are trying to go it alone. Some may not have the luxury of counsel, but all should be able to tap insurance carriers to help with risk reduction.
17. Has your agency ever been sued for negligence?
18. If you answered yes to question 17, what was/were the result(s) of the litigation?
What is missing is the costs of winning as compared to the costs of losing. The idea behind proactive assessment is to avoid court, or at least minimize its effects if you are sued by demonstrating the prudent use of all the tools available, and to find and correct problems before they rise to the level of injury and negligence. No one really wins in the sense that there are real and hidden costs that never show up in court documents but which nonetheless hit you in the pocketbook with higher premiums, legal retainers and time spent away from other important management matters.
19. If you answered yes to question 17, please briefly explain.
The majority of incidents cited were slips and falls, but several drowning accidents also were reported. One, a bridge collapse from overweight equipment, sounded quite serious. In another, an amputation of a finger resulted from a gate malfunction. Sadly, in the drowning cases, which occurred at a boat ramp where signs were posted stating, “No Lifeguard on Duty,” indicate that signage is never enough to assure that risk is limited. Human beings will often engage in dangerous behaviors when self-preservation instincts are not apparent. In one case, an ADA lawsuit caused the updating of a park.
20. What is your annual agency operating budget?
The smallest agency budget was $300,000, with the largest respondent indicating an $80-million budget. Many were over $1 million, including a cluster of those in the $25-million to $40-million range annually.
21. How many people do you serve in a typical year?
Responses ranged from a low of 2,000 to a high of 9 million, while most were in the several 100,000 range.
22. How many full-time employees do you have?
The range was from 2 to 1,100, but most were grouped in the hundreds.
23. How many part-time employees do you have?
The range was from zero to 1,250; many had 200-500 part-time staff.
24. What is your highest level of education?
High school degree--9.8%
25. Describe your agency:
This sample is certainly not large enough to reach sweeping conclusions, but we must continue to explore the issues around risk assessment, exposure and agency procedures, while advocating for appropriate resources. Safety is, and will always be, the paramount concern for those we serve. Moreover, agency self-protection is an ongoing management imperative, too. As long as we continue to educate ourselves, train our staff, and conduct research, we can elevate the discussion in order to make things better for all concerned. Participants, staff, anyone who comes into contact with any recreation agency, ought to do so with the greatest confidence that he or she will be safe from preventable injury. We can expect no less from ourselves, as we seek to serve the needs of our communities.
Joseph A. Panza, Ed.D., is an Associate Professor for the Recreation & Leisure Studies Department at Southern Connecticut State University. He can be reached via e-mail at firstname.lastname@example.org
Note: Thank you to everyone who participated in the survey!