LegalLiability

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					  Teaching Aids
Legal Liability in Recreation,
    Sport, and Tourism

 Hronek, Spengler, Baker
          Part 1- Foundation
 Introduction
 Trends
 Categories of Legal Liability
 International Issues
 Legal Research
 Legal process
 The Judicial System
 Civil Procedure
    Risk Management
 When you take the risk out of life,
 you take the life out of life. Risk
 must be managed and reduced, not
 eliminated.

 The playground swing has all the risk
 factors possible - immature users,
 velocity, height, and moving parts;
 yet, children will continue to use and
 enjoy playground swings.
        Trend in Federal Cases
(Same trend pattern exists in State Courts)

  1,600,000
  1,400,000
  1,200,000
  1,000,000                               Civil
    800,000                               Criminal
    600,000                               Appeal
    400,000                               Bankruptcy
    200,000
          0
              1980   1990   2000   2004
Trends in Federal Civil Litigation
 Year/           1885    1980      1990      2000     2004
 Category

 U.S. Dist.      <2200 112,734    241,992 259,517   281,338
 Court
 Cases Filed
 U.S. Court of <200     24,122    40,103   54,697   62,762
 Appeals Cases

 Authorized      No     156       156      167      167
 Judges          Data

 U.S. Cases in   <100   763,072   846,421 1,307,102 1,612,056
 Bankruptsy
    Legal Liability Categories in
   Recreation, Sports, and Tourism

                                    Legal Liability


Criminal Liability                      Civil Liability          Constitutional Torts


                                                            Tort
     Contract        Intellectual Law                                                  Other Categories
                                                      (Tort Claims Act)


                                                                      Strict Liability


                                                                     Intentional Torts


                                                                          Nuisance


                                                                          Negligence
     Categories of Damages
              (Court Awards)
   Compensatory Damage – damages awarded as
    compensation or restitution for harm done

   Punitive Damage – damages awarded to punish
    the defendant because of their outrageous
    conduct

   Consequential Damage (pain and suffering)-
    damages awarded for suffering because of the act
    of the defendant

*Under special circumstances attorney fees can be
  awarded
     Basics of the International
           Legal Systems
 Nations have different legal systems, some
  functioning on behalf of the people and
  some functioning on behalf of the rulers of
  the country.
 Tourism is becoming an important
  economic factor effecting GNP; therefore,
  equity is critical.
 Many countries have not recognized that
  legal liability and personal protection issues
  must be considered as an important
  component in attracting tourists.
        Basics of the International
              Legal Systems
   Countries who do not offer legal and personal
    protection to visitors will significantly reduce the
    economic benefits of tourism.
   International maritime (cruise ships) present a
    particularly complex legal problem.
      Nation of registry laws apply on the high seas
      When in territorial waters, the individual country
       laws apply
      Crime on the high seas is routinely ignored
          English Common Law
             (U.S. System)
   A system of laws derived from centuries
    of experience, study and tradition. The
    laws based upon the Judo-Christian
    beliefs in the Ten Commandments.
    Common law deals with legal
    relationships, powers, and liabilities. It
    recognizes the power of government lies
    with the common people not in an elite
    group.
          English Common Law
          (U.S. System) continued

   A judge under common law is an impartial
    referee of the dispute. Judges are bound
    to protect the rights of the parties to the
    dispute. English Common law is used for
    the legal basis of laws in Australia,
    Canada, England, India, Ireland, New
    Zealand, South Africa, United States, and
    other nations that were once part of the
    British Empire. i.e. Hong Kong.
    European Legal System
   The European Legal Systems are based
    upon the early Roman legal system. The
    laws are codified. In this system the laws
    are listed by crimes or civil offenses. The
    judgment and punishments are based upon
    precedent, on rulings that previous judges
    and juries have made. The early Roman
    Legal System significantly influenced the
    structure of English common law.
European Legal System
             continued

   The non-criminal legal system protects
    human rights, property, and allows actions
    in tort. Although there is some differences
    among nations the system is used in
    France, Germany, Belgium, Netherlands,
    Denmark, Spain, Portugal, Italy, Poland,
    Czechoslovakia, Sweden, Norway,
    Switzerland, and some other counties in
    South and Central America, and Africa.
Japanese Legal System


 Japanese   System – The modern
 legal system was initially based on
 the European legal system but
 significantly modified using the
 American/British legal system
 following World War II. The Japanese
 system includes a bill of rights and
 thirty-one articles related to human
 rights.
    Japanese Legal System
              continued

   There is one supreme court, eight high
    courts and fifty district and family courts.
    The nation is not litigious by nature, while
    many laws are codified, the social mores
    and desire to maintain harmony and
    subjugation dominate the culture. Most
    suits are related to business. Japan has
    both a civil and criminal court system. (The
    Korean Legal system is similar to the
    Japanese system)
     Chinese Legal System

 China’s legal system is made up of a
 complex group of custom and statue,
 largely criminal law with a
 rudimentary civil code. During recent
 years China has passed many new
 laws and regulations. The legal
 system tends to protect the rights of
 foreign investors as much as its own
 citizens.
      Chinese Legal System
                 Continued


   The Constitution (1954) is the basis of the
    codified legal system. Business related
    laws are implemented with international
    trade considerations. Tourism law is
    receiving much attention in the business
    community and the “rule of law” is
    adopted by the courts. The Chinese legal
    system could be described as a legal
    system in transition.
 Islamic Law System

 Islamic Law System (the Sharia) is
 based upon the rules and
 requirements found in the Muslin holy
 scriptures (Qur’an). The Sharia
 system dominates the legal system of
 the Muslim world. It forms the basis
 for relations between man and God,
 and among individuals.
        Islamic Law System
                  continued


   The Hadith and Sunna and codified laws
    follow in most part in accordance with
    generally accepted western jurisprudence.
    The Fiqh is rulings by Islamic scholars to
    direct the lives of the Muslin faithful. The
    Council of State or Majlis al-Dawla is the
    highest administrative court, usually
    headed by leading Muslin cleric.
                Maritime Law
               (Admiralty Law)

   Maritime Law is a complex and difficult
    area of law. In recreation and tourism
    activities cruise ships and ocean fishing
    activities are under the jurisdiction of
    admiralty laws unless the incident
    takes place in the territorial waters of a
    nation, in such case the laws of the
    nation would dominate.
         Maritime Law
     (Admiralty Law) continued

 There are separate courts
 (Admiralty Courts) that hear
 maritime cases. The basis of
 Maritime Law in the United States
 is known as the Jones Act. Under
 admiralty law the ship’s flag
 determines the source of law that
 applies to the crime, property loss,
 or tort.
    International Courts
       of Arbitration
 International  Court of Justice, also
  known as the World Court, Hague,
  Netherlands
 Maritime problems are referred to as
  private international law. Disputes
  and crime are regulated by the nation
  of ship’s registry unless the incident
  was within territorial waters.
     International Courts
     of Arbitration Continued
 International Intellectual Property
  (trademarks, patents, and
  copyrights) by international treaty
 International Courts Serving
  Individual Countries (Torts)
 International Court of Arbitration
  (International Chamber of
  Commerce, mostly related to trade)
    How Laws Are Created

 Legislated Laws – Elected officials
  develop and pass laws
 Regulatory Laws – Civil servants write
  regulations that creates the rules by
  which the law is implemented
 Case Laws – Court decisions create a
  law for a particular subject area as a
  result of adjudicated cases
                Cites for Case Law
                       (Example)

   Navarro v. Country Home Association 654
    So.2d 167 (Fla.App.1995)
       Navarro                    Plaintiff
       Country Home Association   Defendant
       654                        Volume of reporter
       So.2d                      Case book name
       167                        Page Number
       (FlaApp.1995)              Location of trial
                                   and year tried
Some Selected Case Reporters

   U.S.       Supreme Court Cases
   A.2d       Atlantic Reporter 2nd Ed.
   P.2d             Pacific Reporter 2nd Ed.
   N.E.2d     North Eastern Reporter 2nd Ed.
   N.W.2d     North Western Reporter 2nd Ed.
   S.2d       Southern Reporter, 2nd Ed.
   S.E.2d     South Eastern Reporter 2nd Ed.
   S.W.2d     South Western Reporter 2nd Ed.
   F.2d       Federal Reporter
   F.Supp.    Federal Supplement
   N.Y.S.2d   New York State Reporter, 2nd Ed.
   Federal Judicial System
    (States have similar system)
 U.S. District Court
   Trial Court
 U.S. Circuit Courts of Appeal
   Divided into twelve judicial
    circuits
 U.S. Supreme Court
   Decisions become the law of
    the land
       Pre-trial Procedures

 Event – Property loss, injury, death
 Complaint/Summons – Issued by the
  court
 Answer – Defendant must respond
  within 21 days
 Motions – dismissal, summary or default
  judgment
 Discovery – Depositions, interrogatories,
  documents, medical exams
 Pre-trial Conference – 95% if cases
  settled, 5% proceed to trial
  Preparation for Trial

 Impaneling    Jurors-The clerk of
 the court makes a list of jurors
 who have been selected for a
 particular trial. The clerk
 determines the preliminary
 qualifications of the potential final
 jurors
               Voir dire
 Voir   dire – To Speak the Truth

 Thepreliminary examination
 which the court may make of a
 potential juror, where his or her
 competency, interest or
 objectivity may be challenged.
Trial Procedures
 Jury Selection – jury determines facts
 Opening Statement – outlines nature of
  the case
 Presentation of Plaintiff’s Case
 Presentation of Defendant’s Case
 Closing Arguments
 Jury Instruction – given to jury by judge
 Jury Verdict
 Judgment – given by judge
Civil Procedure
 An understanding of legal liability
 requires an understanding of civil
 court procedures. The federal
 civil procedures process
 constitutes the approach used in
 this section. Most state courts
 follow the general outline of
 procedures in the federal court
 system
Defendant Responds to Civil Complaint

     Must file an answer to complaint in
      order to avoid a default judgment
      against him.
         Demurrer – a statement by the
          defendant claiming that the plaintiff has
          not stated a “cause of action.”
         Admission and Denials – a defendant
          can admit the truth of some allegation
          and deny the truth of others.
         Counterclaim – defendant responds by
          stating he has his own “cause of action.”
Jurisdiction
  Federal subject matter jurisdiction
   includes, but it not limited to:
      Questions arising from the use of federal
       property
      Violation of federal laws or statutes
      U.S. Constitution questions
      International disputes
      Conflicts among states or among citizens of
       different states.
Venue
  The location of the court is important to
   jurisdiction as well as fairness to all
   litigants
  States have “long arm statutes that
   allows them to serve summons to
   persons outside their political
   boundaries
  Jurisdiction can include: criminal,
   bankruptcy, civil, military, contract,
   maritime, international, etc.
Pleadings
  Defendant may ask for dismissal of
  the case based upon:
      Lack of subject matter jurisdiction (i.e.
       bankruptcy)
      Lack of personal jurisdiction (i.e. military)
      Improper venue (court location)
      Insufficiency of process (court procedures)
      Insufficiency of service of process (mailed)
      Failure to state a claim (no damages)
      Failure to join an indispensable party
Counterclaim
 A counterclaim is a claim
  presented by a defendant to
  defeat the claim or charge of
  the plaintiff. If damage to the
  defendant’s interest arose from
  the same incident a
  counterclaim would be made
  by the defendant against the
  original plaintiff.
Cross-claims

A cross-claim is against a person
 or persons on the same side of
 the litigation stating that they
 may be more responsible than
 the complainant
Third Party Practice

 Thirdparty practice is a claim
 against another party that
 alleges that the third party is or
 may be liable for all or part of
 the damages.
Class Action

 Classaction claims provide a
 means by which a large group of
 persons may sue or be sued as
 representatives of the class.
Intervention

 Intervention is when a third
 party, not originally a part of the
 suit, comes into the case
Interpleader

 Interpleader  is when two or
 more persons claim the same
 funds or property from the
 defendant. This requires other
 plaintiffs to enter a case so the
 same facts do not have to be
 presented in court twice.
Amicus curiae

 Amicus  curiae is a person or
 party with strong interest, but
 not a litigant. Usually a Amicus
 curiae files a brief on broad
 public interest issues. Literally,
 they are a “friend of the court.”
Issue or Claim Preclusion
 Collateral   Estoppels
   When   an issue of fact has been
   determined that issue cannot be
   litigated again. The doctrine bars
   re-litigating an issued which has
   already been tried between the
   same parties The doctrine is also
   applicable to criminal cases and is
   referred to as “double jeopardy.
Full Faith and Credit
    State to State – Valid judgment in one
     state must be treated as valid judgment
     in reviewing state.

    Federal to State – Federal courts must
     give full faith and credit to state court
     decisions; however, federal cases
     dominate as precedent
        Pre-trial Summons
    The service (delivery of a
    summons) must comply with the
    following guidelines:
     Must  be delivered personally to the
      defendant
     Publication notice can only be used
      as a last resort
     The complaint must be delivered to
      an adult (not a minor).
            Trial Preparation
   Prepare subpoenas

   Prepare trial exhibits in order of their use

   Digest of oral depositions
     Introduce evidence unavailable at trial
     Establish facts
     Attack witness credibility
Pre-Trial Memorandum
  Listof witnesses
  Schedule of exhibits
  Disputed rules of law
  Special damages
  Statement of undisputed facts
  Proposed findings of fact
  Conclusions of law
     Limits on Discovery
 Must  be relevant matters
 No confidential matters (trade secrets)
 No attorney/client communications
 Prohibits mental impressions,
  opinions, legal theories
 Work products not discoverable
  (qualified)
          Post Trial Appeals
              Criminal or Civil

 Trialattorneys representing the
 litigant can appeal the decision of the
 court based upon:
   Abuse   of discretion in cases involving
    discretion
   Clearly erroneous findings of fact
   Mistakes in the application of law
   Collateral estoppels doctrine prohibits
    re-litigation of issues of fact.
Stages of Litigation – Appeals
 Motion to stay execution of judgment
  pending appeal
 Filing a notice of appeal
 Filling of Appellant’s brief
 Filing of Appellee’s brief
 Oral Argument
 Decision is rendered
 Appeal to highest court in jurisdiction
 Briefs filed, oral argument, decision
  rendered
             Recovery
 Recovery  - The final judgment or
 verdict in a civil action. This
 action obtains again the rights or
 restoration of a right or
 restitution by formal judgment
Categories of Recovery
  Money  Judgment
  Court Ordered Actions-
     Decree (Non-monetary requirement)
     Restraining order (permanent)
     Temporary restraining order
     Divorce order
Types of Money Judgments
   Compensatory – to replace losses ,
    such as wages, medical, property, etc.


   Consequential – damages that flow
    from the act, such as pain and suffering


   Punitive – also called exemplary, to
    punish for willful behavior


   Attorney Fees – are rarely granted to a
    successful litigant, except in civil rights cases
Settlement Documents
 Stipulations   for dismissal

 Releases


 Settlement   agreements

 Final   judgment (court order)
Dismissal of Case

A  dismissal without prejudice
 allows a new suit to be brought on
 the same action

A  dismissal with prejudice does not
 allow the issued to be brought to
 court again.
          Part 2 Negligence

 Cause of Action
 Strict Liability
 Defense
 Contractual Protections (Waivers)
Negligence Categories


                 Negligence
           Premises    Supervision

    Design                     Facilities

  Construction                 Programs

 Maintenance                  Employees

                                Training
              Negligence
       Elements of a Cause of Action
 1.A duty or obligation recognized by
 law
             Negligence
       Elements of a Cause of Action
 1. A duty or obligation recognized by
  law
 2. A failure on the part of the
  defendant to conform to the
  standard required
             Negligence
       Elements of a Cause of Action
 1. A duty or obligation recognized by
  law
 2. A failure on the part of the
  defendant to conform to the
  standard required
 3. A reasonable close causal
  connection between the conduct and
  the resulting injury
             Negligence
       Elements of a Cause of Action
 1. A duty or obligation recognized by
  law
 2. A failure on the part of the
  defendant to conform to the
  standard required
 3. A reasonable close causal
  connection between the conduct and
  the resulting injury
 4. An actual loss or damage
          Strict Liability


                Strict Liability
            Product        Water and     Dangerous
Animals
            Liability        Food         Activities

                                           Blasting
             Drugs
                         Potable Water   Automobiles
           Equipment
 Zoos                    Food Services     Aircraft
            Warranty
 Pets                     Dram Shop       Applying
           Appliances
                            Others        Chemicals
             Others
                                           Others
Strict Liability –Found Guilty
   Loose animals on another’s property

   Damage to crops by spray drift

   Infecting another with a know disease (herpes)

   Electrical emission causing interference

   Third person lets lion out of easily opened cage

   New toaster toasts toastee
             Strict Liability –
            Found Not Guilty
   Stampeding cattle caused by lightning

   Dynamite blasts hurtles rock long distance

   Bear mauls drunk teenager in bears cage

   Water poisoned by a third person
    (unforeseeable doctrine)

   Boxing glove causes injury, unrelated to
    construction of glove.
   Contemporary Strict Liability
          Questions
 Second    hand cigarette smoke

 Professionalliability in quality of
 tourist experience

 Seller   of defective product

 Coach directed actions that result
 in sports related injuries
Defenses to Negligence
  Assumption   of     Notice of Claim
   Risk                Statutes of
  Comparative          Limitations
   Negligence          Release/Waiver
  Failure to Proof
  Governmental
   Immunity
Exculpatory Documents

A document that relieves a person or
organization from liability that results
from negligence.

Does not relieve person or organization
from absolute liability resulting from
gross or wilfull and wanton acts.
Informed Consent
 Anagreement used to protect the
 provider from liability for the
 inherent risks of participation or
 treatment.
Waiver or Release

 An agreement between a provider and
  the participant signed prior to
  participation by which the participant
  agrees to excuse or absolve the provider
  of any fault or liability for injury resulting
  from the negligence of the provider.
 In some states “release” refers to a
  document signed after the injury or
  damage has occurred usually in
  connection with settlement.
Indemnification Agreement

 Sometimes referred to as a “hold
  harmless” agreement.
 Generally applies to permit and lease
  relationships.
 This agreement shifts the responsibility of
  an award to a third party. The third party
  agrees to be responsible for any court
  awarded damages or expenses caused by
  the third party.
    Agreement to Participate

 Generally applies to minors and is
  signed by their parents or guardians.
 An agreement by which the participant
  and the participant parents are
  informed of the inherent risk of the
  activity, what behavior is expected of
  the participant, and affirms that the
  parents know of and assumes the
  inherent risks of their child’s
  participation in the activity.
    Assumption of Risk Agreement
   This agreement is essentially the same as
    the agreement to participate and applies
    to both minors and adults. It generally
    informs the participant of the inherent
    risks and affirms voluntary participation
    and assumption of the inherent risks.
    Parental Permission Form

 A document by which the parent gives
  permission for a minor to participate in a
  designated activity.
 The document has no legal effect on the
  liability of the provider, but may have
  some public relations value in informing
  the parent of the activity.
 It can be used to gain permission for
  emergency medical treatment or assign
  financial responsibility for such treatment.
Comparison of Exculpatory Documents


Document         Risk             Parties      Activities         Legal Effect

Waiver &         Negligence       Adults       Voluntary          Lowers
Release                                        participation      standard of
                                                                  care owed
Indemnificatio   Contractual      Adults       Where waivers      Shifts risk to
n Agreement -                                  or contracts       third party
Hold harmless                                  are used
Informed         Contractual      Adults       Human subject      Strengthens
Consent                                        training,          assumption of
                                               therapy            risk defense
Agreement to     Inherent risks   Adults and   Any volunteer      Strengthens
participate      Negligence       Minors       activity –sport    assumption of
                                               or recreation      risk defense
Parental         None             Minors       Any volunteer      No legal effect
Permission                                     activity – sport   Medical treat-
                                               or recreation      ment approval
    Valid Waivers and Releases Must

 be clearly written
 be made obvious that it is a
 waiver
 be signed by an adult
 be signed voluntarily
 be specific as to what it covers
Waivers & Releases are Invalid When

 The language of the waiver is unclear
 The actions are contrary to public
  policy
 Minors sign waivers or their parents
  sign them on their behalf
 Participant does not have full
  knowledge as to what they are signing
 Participant is tricked or forced into
  signing
      Part 3 Intentional Torts

 Harm to Persons
 Trespass
 Defenses to Intentional Torts
      Intentional Torts

                       Intentional Torts
                       Property   Persons


Trespass to Property                              Assault


Trespass to Chattel                                Battery


    Conversion                                  False Arrest



                                                Defamation


                                             Intentional Infliction
                                            of Emotional Distress
       Defamation
The  act of harming the
 reputation of another by
 making a false statement to a
 third person.
Four Deadly Defamatory Statements
in which a defamation suit will likely be filed



 1. Dishonest Business Practices
 2. Child Molester or Spouse Abuser
 3. Deviate Sexual Behavior
 4. Loathsome Disease
Defenses to Intentional Torts

 Privilege            Recapture of
 Mistake               Chattels
 Consent              Forcible Entry on

 Self Defense
                        Land
                       Necessity
 Defense of others
                       Legal Process
 Defense of
  Property             Arrest Without a

 Discipline
                        Warrant
                     Nuisance



                         Nuisance
Noise           Health     Use of
                                         Odor      Unsightly
Light                      Property

  Obstruction            Inconvenience   Community Standards
             Criminal Liability


                       Legal Liability

      Crimes Against Persons             Crimes Against Property

                           Others:
                           Drugs
                                         Trespass      Trespass
Assault      Battery       Murder
                                          to Land     to Property
                            Rape
                            Etc.

                                               Robbery
                                               Burglary
                                                Fraud
                                                 etc
  Purposes of Law Enforcement in a
Recreation, Sports and Tourism Setting

    Protect   people from other
     people

    Protect   the environment from
     people

    Protectthe people from the
     environment
    Governmental Immunity Limited
       (States have similar legislation)
   The doctrine of Sovereign Immunity (the King
    can do no wrong) essential disappeared upon
    passage of the Federal Tort Claims Act of 1946.

   Provisions
      Allows citizens to sue the government
      Suits must begin within 2 years of injury
      Suit must relate to operational questions


   Exceptions:
      Policy decisions cannot be challenged
      Fiscal decisions cannot be challenged
      Government exempt from punitive damages
             State Recreation
            Land Use Statutes

   Forty-eight states have enacted
    laws providing legal protection of
    private and public landowners who
    allow their land to be used for
    public recreation

   The other states have case law
    precedent that essentially
    accomplishes the same result.
            General Provisions of
   State Recreation Land Use Statutes
 Protection   not applicable if fee is paid

 Plaintiffmust prove gross negligence
  or willful intent if no fee is paid

 Some   state statutes vary in content

 Some   states apply the laws differently
 Good Samaritan Laws

 One who helps a person in peril
 cannot be charged with
 contributory negligence. Under this
 doctrine, negligence of a volunteer
 rescuer must
 worsen condition of a
 person in distress
   Who is legally liable

 Employees         Contractors


 Volunteers        Sponsors


 Supervisors       Manufacturers


 Administrators
                   Duty of Care
   Classification of               Level of Care Owed
    User
                                        Owed highest degree of
       Invitee (pays fee to             care
        enter)                          Owed reasonable and
       Licensee (enters by              ordinary care warning
        permission – business            of hidden conditions
        or social                       Owed least amount of
       Trespasser (enters               care – reasonable and
        legally without paying           ordinary standard.
        or without specific
        permission
Deep Pocket Doctrine

    Suits are guided by the doctrine of:
        Sue all wrong doers
        Collectability

     This simply means it is important to sue all
       parties involved and it is plain dumb to sue
       someone who does not have the assets to
       pay the court judgment.
Legal Duty Based Upon the Plaintiff’s

     Physical Characteristics
         Age
         Gender
         Disability
     Mental Capacity
         Age
         Disability
     Skills and Knowledge
         Training
         Education
         Language
    Part 4 Constitutional Rights
 Human Rights
 Due Process
 Privacy
 Discrimination
         Constitutional Torts

       Constitutional Torts and Protection of Individual Rights

Due Process         Bill of Rights                  Human Rights

          Liberty               Privacy       Religion


         Property               Search         Speech

                                Right to       Race
         Hearing
                                Counsel      Gender, Age

                                  Self-
                                              Disability
                             Incrimination
Elements of Rights of Privacy

 An   act by the defendant
  1. Constituting a serious and
   unreasonable invasion of privacy
  2. Causing the invasion to occur
  3. Resulting in damages
         Four Distinct
       Forms of Invasion

 Appropriation
 Intrusion
 Public Disclosure of Private Facts
 Placing a Person in False Light in
  Public (Defamation)
                Part 5
           Risk Assessment
 Risk Management Process
 Risk Assessment Overview
 Approaches to Risk assessment
 Insurance
Risk Management Process

                Risk Identification
                         Tort
                      Contract
                       Fidelity
                    Property Loss


Risk Evaluation                       Risk Implementation
    Frequency                                 Policy

     Severity                               Procedure
                 Risk Treatment             Timeliness
                        Retain
                        Reduce
                       Transfer
                     Avoid or close
Risk Management Process

                                            Avoid
 high>
                                              or
                                            Close
                  Retain
                    or
 Frequency
 of               Reduce
 Accidents
                                          Transfer



 low>

             low^ Magnitude of Loss in Dollars high^
       Two Most Important
       Risk Considerations
Be   alert to unsafe conditions

Take  reasonable and timely
 action when you become
 aware of hazardous
 conditions
       Agency Responsibility
       (as determined by the courts

 To use ordinary and reasonable
 care to keep the premises reasonably
 safe for the visitor and to warn the
 visitor of any known danger.
                      Rule of Seven

   Age of Child                         Responsibility of Child
     0-7                                  Not responsible for
                                            their actions
       8-14                               Partly responsible for
                                            their actions
                                           Mostly responsible for
       14-18 (21)
                                            their actions
                                           Responsible for their
       Adult                               actions


    Note: The Rule of Seven provides a basic framework and is rapidly
    being considered as part of the comparative negligence legal theory.
    Degrees of Negligence
 Ordinary Negligence- the failure to
  exercise such care as would be
  expected by the majority of people
  under like circumstances
 Gross Negligence- The disregard of
  life and property of others. It consists
  of conscious acts of negligence
 Willful and Wanton Negligence- The
  conduct so gross as to have something
  of a criminal character, evil intent,
  wantonness or recklessness, indicative
  of malice
     Common Sense Rule –
Office of General Council, USDA
   By taking risk management actions
    under the following circumstances
    successful suits can be significantly
    reduced –

     1. Where accidents have previously
         occurred
     2. Areas of high public use
     3. Areas that pose extraordinary
         danger
Reasonable Care Doctrine

 Compares   the actions of the defendant
 to that of a reasonable man or women
 in the same or similar circumstances
                 Part 6
             Workplace Risk
 Employee Termination
 Sexual Harassment
 Employee Safety and Health
 Americans with Disabilities Act
 Employee Evaluations
       Important Legislation
     Applicable to Employment

 Fair Labor Standards Act of 1923
 National Labor Relations Act 1935 as
  amended by the Taft-Hartley Act of 1947
 Civil Rights Act of 1964
 Age Discrimination Act of 1967
 Rehabilitation Act of 1973
 Equal Pay Act of 1982
 The Americans with Disability Act of 1990
 Fair Labor Standards Act of 1923

      major act to protect workers
 First
 from abuses by employers
National Labor Relations Act of 1935
           as amended

 Primary body of federal law controlling
  labor-management relations in private
  industry.
 Regulates collective bargaining, strikes,
  worker rights to labor unions, etc.
      Civil Rights Act of 1964
 Title   1Voting rights
              -
 Title   2Equal access to public facilities
              -
 Title   3Equal access to accommodations
              -
 Title   4Discrimination in public education
              -
 Title   6Discrimination in federally
              -
           assisted programs
 Title 7 – Discrimination in employment
    Civil Rights Act of 1964 continued

 Coverage - 15 or more employees
 Protected Classes
       Race
       Color
       Sex (Gender, not sexual orientation)
       National Origin
       Religion
       Alienage
       Opposition and Participation
    Civil Rights Act of 1964 continued
   Defenses
     Bona fide occupational qualifications
     Seniority
     Good faith reliance
     Undue hardship
     Religion practice
     Statutory defenses
        Veteran’s preference
        Security clearances
Civil Rights Act of 1964 continued
 Remedies     for violations
   Injunctive relief
   Monetary relief
   Remedial seniority
   Attorney’s fees
   Affirmative Action – snap shot of racial
    and ethnic population of workforce as
    compared to area population
Age Discrimination Act of 1967

   Protects older workers from
    discrimination. Basically provides relief
    from:

       Unfair Pay differential
       Early dismissal
       Arbitrarily Set Age Limits on Employment
       Other Age-Related Exclusions (i.e.
        insurance, retirement, etc.)
   Rehabilitation Act of 1973

 Thisact protects the rights of the
 disabled by reducing
 architectural barriers that limit
 access in public facilities.
       Equal Pay Act of 1982

 Noemployer can discriminate
 between employees doing the
 same work on the basis of
 gender.
      Equal Pay Act of 1982 continued

   Enforcement and Remedies
     Public and private court actions
     Back wages can be awarded
     Employers pay both compensatory and
      punitive damages
     Must be brought within 2 years of
      incident
     Pays successful plaintiff’s attorney fees
     No retaliation against plaintiff
     Equal Pay Act of 1982 continued

 Defenses   to discrimination charges
  Seniority
  Merit (training, etc.)
  Production quantity or quality
  Differential not based on gender
   (education)
       Constitutional Protection
           in Employment

 1st Amendment – speech and religion
 5th Amendment – no person shall be
  deprived of life, liberty and property
  without due process
 States cannot violate Constitutional rights
 Right-Privilege Doctrine – rights may be
  suspended due to security and federal
  law.
    Other Employment Protections

 Abuse by government (Bivens v. Six
  Unknown Named Agents)
 Freedom of Information Act (1976)
 Privacy Act of 1974 (Economu v. Butts)
 Pregnancy (Geduldig v. Aiello)
 Residency (Shapiro v. Thompson)
 Association (NAACP v. Alabama)
    Americans with Disabilities Act of 1990



   Provides both protection in employment
    and access to all public facilities for a
    number of disability classifications.
    Significantly expands the Rehabilitation
    Act of 1973.
         Performance Appraisal:
             Seven Concerns
 Evaluating an employee’s job
  performance is important to the vitality of
  the organization, the employee, and the
  supervisor.
 How else can we learn about expectations
  and perceived performance except
  through a performance appraisal.
               Concern 1
      Lack of Policy Enforcement


   Each employee should have a private
    discussion related to personal
    performance with their supervisor at least
    once a year.

Dell v. Montgomery Ward, 811 F.2d 970
             Concern 2
     Improper Evaluation Criteria

   Valuations criteria should be directly
    related to those task necessary to perform
    a particular job. Job analysis is highly
    desirable when selecting evaluation
    criteria.

Griggs v. Duke Power Company 721 US 430
                         Concern 3
Communication Leading to Defamation
 Communications between an employer
  and employee should not involve a third
  party that is not in a direct “need to know”
  category of supervisor.
 The real reason for dismissal should be
  given the employee, not a lie.


Gaines v. Cuna Mutual Insurance Society 681 F.2d 982
      Concern 4
Lack of Communication

   Managers should discuss the
    performance appraisal process
    with all newly hired employees.
    Failing to discuss deficiencies to
    protect the feelings of an
    employee can prove to be
    legally devastating.
   Employees must read and sign
    performance evaluations.

      Wollery v. Brady 741 Ff. Supp 667
    Concern 5 Nonexistent or
    Inadequate Rater Training

 Raters  need training in evaluating
  employee performance. A rater
  training procedure should be in
  place.
 The key to having a legally correct
  appraisal is a thorough study of
   the employee job description.
             Concern 6
      Non-use of Minority Raters

   There is a need for minority raters which
    reflect the diversity of the workforce.

Rowe v. General Motors 457 F.2d 348
              Concern 7
    Failure to Monitor the System
 Employers must see that there are
  safeguards to insure that the system in
  not discriminatory.
 There must be a formal appeal process


Loiseau v. Department of Human Resources
of the State of Oregon 567 F. Supp 1211
      Insurance

    Insurance is a vital part of
 transferring legal responsibility
for property loss or negligence to
 someone else. Insurance does
  not transfer personal criminal
             liability.
Types of Policy Coverage
 Owners and Tenants liability
  (homeowners, renters, business, etc.)
 Automobile
 Product liability
 Professional liability
 Theft and Dishonesty (fidelity)
 Participant Accident
 Contractual Liability
 Errors and Omissions (CPA, Lawyers, etc)
Structure of an Insurance Policy
   Declarations


   Insuring   Agreement

   Exclusions


   Conditions


   Payment    Plan
Life and Health Insurance
   Life Insurance
       Whole life insurance (pay all your life)
       Ordinary life insurance (specific number of
        years)
       Endowment life insurance
       Term life insurance (cheapest, not savings
        value)
   Health Insurance
       Cost depending on high or low options, family
        or individual, age
       Coverage varies considerably, hospital,
        doctors, dentists, long term care, etc.
          Life Insurance
        Settlement Options
   Lump Sum – pays recipients in a
    single payment. Taxes may be
    considerable on annuity plans

    Interest Option – pays recipients
    in monthly payment for the rest of
    their life, amount of payment based
    on percentage and total value
Managing Insurance Costs

 Shop for insurance and get quotes
 Join with similar businesses or
  organizations to reduce cost
 Review who and what is covered
 Season or time of day of insurance
  applicability can be limited
 Increase deductibility
 Include a risk management plan
                Part 7
    Outdoor Recreation Management
 Natural Hazards
 Concessionaires, Leases and Contracts
 Protection Issues
Natural Hazards – and the list goes on
   Weather
       Lightning. flooding, temperature extremes, wind,
        humidity, tidal conditions. etc
   Terrain
       Falls, fatigue. rock slides, caves, lost, etc
   Animals
       Predators, being part of their food chain, etc
   Insects
       Poisonous, disease carrying, etc
   Plants
       Poisonous, physical damage (barbs), etc
              Thunderstorms
   Thunderstorms affect relatively small
    areas when compared with hurricanes and
    winter storms. The typical thunderstorm
    is 15 miles in diameter and last an
    average of 30 minutes. Nearly 1,800
    thunderstorms are occurring at any
    moment around the world. That’s 16
    million a year.

   Heavy rain from thunderstorms can lead
    to flash flooding. Strong winds, hail and
    tornadoes are also dangers associated
    with thunderstorms.
       Who’s Most At Risk From
          Thunderstorms?
   From Lightning - People who are outdoors,
    especially under or near tall trees, in or on
    water, or on hilltops

   From Flooding – People who are in
    automobiles when flash flooding occurs
    near them

   From Tornadoes – People who are in mobile
    homes and automobiles
    When Are Thunderstorms
         Most Likely?
 Spring and summer months during the
  afternoon and evening hours.
 Along the Gulf Coast, Southeast, and
  Western states, during the afternoon.
 In the late afternoon and at night in the
  Plains and Lake states.
 Thunder and lightning occasionally
  accompany snow or freezing rain.
             Downbursts
    Straight Line or Shear Winds
 A small area of rapidly descending air
  beneath a thunderstorm
 Can cause damaging winds in excess of
  100 mph
 Usually approach from one direction and
  are known as “straight-line” winds
 Can reach wind speeds equal to a strong
  tornado
 Winds may or may not be accompanied by
  rain
         Straight-line Winds
      Sometimes call shear winds
   Responsible for most thunderstorm
    damage

   Winds exceed 100 mph

   Extremely dangerous to aviation

   Produce little rain, but very strong dust
    storms
                        Hail

   Large Hail

       Causes over one billion dollars in damage to
        property and crops annually

       Known to have killed livestock and humans
                Large Hail
   The strong rising currents of air within a
    storm, called updrafts carry water droplets
    to a height where freezing occurs

   Ice particles grow in size, finally becoming
    too heavy to be supported by the updraft
    and fall to the ground

   Large hailstones fall at speeds faster than
    100 mph.
Last Year, People Were Killed by
       Lightning While:
   Boating
   Swimming
   Golfing
   Bike Riding
   Playing Sports
   Fishing in a Boat
   Standing Under a Tree
   Talking on a Cell Phone
   Mountain Climbing
   Riding a Lawn Mower
                 Lightning

   Occurs with all thunderstorms

   Causes hundred of million dollars in
    damages to property and forests
    annually

   Results in dozens of deaths each year
      Lightning and Forest Fires

   Most fires in the western United States and
    Alaska are started by lightning.

   Over 1,500 fires per year are started by
    lightning and result in an average of over
    20 million dollars suppression cost per
    year.

   The air near a lightning strike is heated to
    50,000 degrees Fahrenheit.
                Tornadoes

   Natures most violent storms

   Winds can exceed 200 mph

   Result in an average of 80 deaths and
    1,5000 injuries each year

   Most fatalities occur when people do not
    leave mobile homes and automobiles
              Flash Floods


#1 Weather Related Killer in the United States
River Floods are Historic


Flooding along rivers is a natural and
inevitable part of life. Some floods
occur seasonally when winter or spring
rains fill river basins too quickly.
            Historic Floods
 Johnstown, Pennsylvania – 1889 worst
  flood in U.S. history – dam broke 36-40
  wall of water killed 2,200 people
 South Central Texas – 1992 wide spread
  river flooding on Guadalupe, Brazos,
  Trinity, and Colorado river basins- 17
  inches of rain fell, 15 dead, 100 million
  d0llars damage.
 Shadyside, Ohio, 1990, 4 inches of rain in
  an hour, 30 feet wall of water, 26 dead, 8
  million dollars damage
    Coastal Floods – usually the result of
    hurricanes or winter storms

   Winds generated from tropical storms
    and hurricanes or intense offshore low
    pressure systems can drive ocean water
    inland and cause significant flooding

    Coastal flooding can also be produce by
    underwater earthquakes that create sea
    waves or Tsunamis.
    Weather Warnings Available
             From the National Weather Service

   General Weather Forecasts
   Hurricane Warning (Typhoon in the Pacific Ocean)
   Tornado Warning
   Severe Thunderstorm Warning
   Heat Advisory
   Cold Temperature Advisory
   Maritime Weather
   Drought Predictions
   Fog Advisory
   Flood Watch
   Flash Flood Warning
   Rip Tide Advisory
   Severe Thunderstorm Watch
   Small Craft Advisory
   Air Quality Advisory
            Contracts
A voluntary promise between
 competent parties to do (or not
 to do) something

 Anagreement, oral or written,
 that is enforceable in the courts.
        Types of Contracts
 Contracts   Under Seal (Formal)

 Contracts   of Record (Court Imposed)

 Simple   Contracts
   Expressed Contract (oral or written)
   Implied Contract (by act or conduct)
   Quasi-contract (obligation)
Remedies for Breech of Contract
   You can revoke the contract (cancel your
    obligations)

   You can bring action for damages against
    the person who breeched the contract.
    (file a suit)

   You may bring suit to obtain specific
    performance. (force them to complete
    the contract).
           Voiding Contracts
     How do you get out of the rotten contract?


 Deliberate  Delays
 Misrepresentation
 Quality of Product
 Failure to Perform
 Illegal Act By Other Party to
  Contract
          Agreement Offer
 BilateralContract - one promise is
  made in return for another
 Unilateral Contract - an obligation
  is made only when something is done
  by another (i.e. reward)
 Requirement of an offer:
   Contractual intention
   Definiteness
   Communication to intended offeree
    Termination of an Offer
 Revocation  of the offer by the offeror
 Lapse of time
 Rejection of offer by the offeree
 Counter-offer by the offeree
 Death or disability of either party
 Subsequent Illegality
 Statute of Frauds (common law)

 Oral contracts cannot be enforced by
  witness statements
 Written contract is required if
  performance is longer than one (1)
  year
 Contracts to sell land, buildings, or
  interests in land shall be in writing
          Statute of Frauds
          (common law) continued


A  promise to pay the debt or default
  of another must be in writing
 Marriage agreements must be made
  in writing
 Parole evidence (spoken words) are
  not allowed to modify the terms of a
  written contract
 Contract Considerations
 Legal contracts require mental
  health and maturity
 A person can transfer their duties
  under a contract, unless the
  contract specifically says they
  cannot be transferred
 In order to modify a contract there
  must be consideration on both sides
 A promise of a gift is not a contract
    Contract Considerations
              (Continued)
 Validcontracts are binding and
  enforceable
 Voidable contracts may be rejected
  by one or both of the parties
 Lack of intention voids contracts.
   Social Invitations
   Offers made in jest or excitement
   Invitations to negotiate
How does an organization protect
itself from poor quality work?

   Surety  bonds
   Performance bonds
   Warranties
   Specific specification in contract
    language
   Insurance
 Doctrine of Promissory Estoppel


 That which arise out of a
 promise (contract) that requires
 the individuals making the
 promise to fulfill their obligations
            Negotiable Instrument
                     A type of contract
   Personal Check
   Certified or Cashiers check (issued by bank on
    itself)
   Bank draft (check drawn by a bank on another
    bank) It can be passed from person to person
    as if it were money
   Certificate of Deposit - acknowledges the
    deposit of money that will bear interest
   Order or promise to pay money (IOU)
    Note: A check is payable on demand if-
       No stop payment order is issued
       Sufficient funds are available
       Check is not post-dated
        Promissory note
           (a legal I.O.U.)
A signers written promise to pay
 the recipient a specific sum of
 money on or before a certain
 date. (Commonly used to pay
 loans)
       Bill of Exchange
            (A draft)

A written order from one person
 to another, requiring that the
 recipient pay a certain amount of
 money to a third person. The
 third person may be named or
 may be designated as the
 bearer.
         Leases and Permits
 Must include actual occupancy
 Can specify tenancy for a specified
  number of years
 Can specify tenancy from year to year
 Can specify tenancy at will – either party
  can cancel lease or permit
 Illegal occupancy of a lease is considered
  land trespass
Leases and Permits (continued)
 Legal   leases and permits must include:

   Date of execution
   Identification of parties
   Description of premises
   Terms of the lease
   Financial arrangement
   Obligation of the parties
   Signatures of the parties
Leases and Permits (continued)
 Classification   of Tenancy:

   Tenancy for years – lease designates
    the duration of the contract
   Tenancy from year-to-year – holds
    tenancy for an indefinite period, pays an
    annual rent as determined by the
    contract
   Tenancy at will – can be terminated at
    any time by either party.
       Part 8 Managing Events
      and Recreational Activities
 Personnel
 Facilities and Equipment
 Security Issues
 Playgrounds
 Aquatics
Tour and Event Managers Must:

   Identify situations which may make
    organizations vulnerable to professional liability
    claims

   Reduce the frequency and severity of
    professional liability claims – false marketing

   Warn passengers and those with whom they are
    contracting about potential dangers.
       Travel warnings
       Weather cancellations
       Dangerous facility situations
       Health issues, etc.
      Provider Responsibility

 Clearly disclosure of conditions and
 situations that the customer will/may
 face is the single most important
 step in avoiding legal liability.

 Disclosureshould be in writing and if
 possible, acknowledged by the
 customer
             Supplier Liability
   Most hotels, restaurants, airlines, cruise
    ships, motor coaches, etc. carry their own
    risk insurance; however, the travel agents
    may be responsible for injury/death or
    property loss if they know of hidden or re-
    occurring problems and do not tell their
    customer

   Suggestion: Be prudent in selection of
    service suppliers.
Tourism Business Legal Obligations

   Will your organization be able to fulfill all
    obligations promised?

   Does your organization represent all
    products fairly without exaggerations as to
    quality or scope of services?
 Important considerations to reduce
        litigation in tourism
 Read service provider contract carefully
 Examine indemnity provisions (hold
  harmless clauses)
 Formalize office/operating procedure
 Employee training
       Client refunds
       Reactions to a claim
       Care and treatment of minors
       Americans with Disability Act
                  Travel Insurance

   Travel Insurance important to deter small
    nuisance suits
   Travel insurance can cover cancelled trips,
    injuries, death, medical expenses, etc.
   Insurance can be purchased by the provider or
    the participant or both
   Insurance provides a peace of mind factor for
    organization and client
   Hosting functions (usually not covered)
       Best to have third parties host food and alcoholic
        beverage service
              Case Example
   A travel company contracted a van company to
    transport groups in a third world nation. An
    accident occurred causing severe injury to
    several passengers. The driver was not
    properly licensed. The operator’s insurance
    would not cover the incident. The passengers
    sued the tour company for negligence in
    selection of an unsafe supplier.

   Results: $430,000 indemnity payment and
    $45,000 in legal expenses .
                Case Example
   Every year a “newcomers Club arranges for a
    weekend trip to Atlantic City through a local
    travel company. In an effort to save on the cost
    of the trip the travel company contracted with a
    bus company with whom they had not dealt
    before. Although four buses were chartered only
    two arrive for the departure time, leaving half
    the group in town. Other arrangements were
    made quickly, but one of the replacement buses
    became disabled en route. The passengers
    missed the dinner show. An accident with
    injuries occurred to one of the buses on the
    return trip. Suites were filed against the bus
    company, its driver, and the travel company.

   Total damages exceeded $4,000,000
           New Developments
   A serious injury accident occurred at the
    swimming pool on a Caribbean Carnival
    Cruise Ship sailing outside of U.S.
    territorial waters. The courts allowed the
    case to be tried in the Federal District
    Court in Chicago, Illinois. It was tried
    under U.S. tort law rather than Maritime
    Law. Compensatory damages were given
    the plaintiff.
ADA Application on Cruise Ships
   In a U.S. Supreme Court case, Spector v.
    Norwegian Cruise Line LTD, the courts
    determined that the ships must make
    “reasonable” accommodations to meet
    ADA requirements. The requirement
    would not apply if removal of barrier
    would bring the vessel into non-
    compliance with international maritime
    safety standards.
Activity Management
 Safety and Risk Management
            Issues
Responsibilities of Activity
Managers and Supervisors
 Duty   to Provide Emergency Medical
  Care
 Duty   to   Provide Safe Facilities
 Duty   to   Warn
 Duty   to   Supervise Properly
 Duty   to   Instruct Properly
 Duty   to   Provide Safe Equipment
Duty to Provide Emergency
Medical Care
     Kleinknecht
     Be trained in CPR and First Aid
     Or have someone on staff in program area
      with training
     Have communication system in place with
      emergency numbers-
         Communicate plan
     Emergency Action Plans (EAPs)
         Comprehensive written emergency plan
Duty to Provide Safe Facilities
      Be aware of prior accidents
      Be aware of areas of greatest potential
       risk
      Think about all possible uses
Duty to Warn
    Hammond
    Waivers and Agreements to participate
    Be aware of age, knowledge and skill
     level considerations
Duty to Supervise
   Stay within sight and hearing of players
       Vision, Hearing, Position
   Provide an adequate replacement if required to
    leave
   Have a plan in case of an emergency
   Don’t be put in a situation where you are not
    qualified
Supervision
   General vs. Specific Supervision
   Depends on level of risk, participant skill,
    participant maturity
       Specific Supervision: Highest Level
            higher-risk activity and/or less experience and/or
             lower maturity: close supervision, experienced
             teacher
       General Supervision: Lowest Level
            lower-risk activity and/or more experience and/or
             higher maturity:
            observational duty- general control, accessible, be
             within sight and hearing of participants
Duty to Instruct
    Instruction and supervision are closely related
     concepts
    Never instruct to injure
    Teach proper technique and correct improper
     technique
    Use progression
         Start with safety instructions
         Teach basics
         Only put in high risk situation when ready
Duty to Provide Safe Equipment

     Product liability
     Duty of Manufacturer
         Strict Liability if defective
         Or inherently dangerous
     Duty of Recreation Manager
         May be liable if alter
              Even with good intentions
         May be liable if don’t inspect and there are obvious
          defects
         May be liable if take warnings off products
Other Management Issues
   Facilities and ADA Compliance
       New buildings must comply- post 1990
       Old buildings- financial considerations
   ADA and reasonable accommodation
       Workplace issues-
 Duty of Care for
  Supervisors/Management
 Inclusion: Participants, Coaches,
  Referees
Disabled Participants
    Duty of Care Owed
    Case Law:
    Association for Retarded Citizens v. Fletcher 741
     So.2d 520 (Fla. App. 1999)
    Waechter v. School District No 14-030, 773
     F.Supp 1005 (W.D. Mich. 1991).
Medical Information
   Issues
       Be aware of disabilities and medical
        conditions
       Communicate, but
       Be aware of confidentiality concerns
       How should you acquire, treat sensitive
        information?
Participation Issues
   In July 1990 Congress passed the Americans with
    Disabilities Act prohibiting the discrimination against
    citizens with disabilities in such matters as employment,
    transportation and access to public facilities. Section 302
    read in part: “No individual may be discriminated against
    on the basis of a disability in the full and equal enjoyment
    of goods, services, facilities, privileges, advantages and
    accommodations of any place of public accommodation
    by any person who owns, leases, or operates a place of
    public accommodation. "This is significant for because most
    places where people recreate are considered places of
    “public accommodation.”
Competing Issues
 ADA Compliance
 Negligence Lawsuits
 Ethical Responsibility


   What we Know:
       Anderson v. Little League Baseball Inc.,
        794 F. Supp. 342, (D. Ariz. 1992) and
        recent unpublished decisions
Consequences
 “Individualized Assessment” required
 Never a blanket policy
 Must develop safety rationale:
       Coaching
       Participation
       Officiating
       Spectators
PLAYGROUND SAFETY
STATISTICS
    Over 200,000 children are taken to the
     emergency room each year due to accidents on
     playgrounds
        76% are on public playgrounds
    147 deaths in the past 10 years
    Fast Food Establishments
        Set the stage
Playground Safety Guidelines,
Standards and Recommendations
   Guidelines:
      Consumer Product Safety Commission (CPSC)
            www.cpsc.gov
            www.google.com
               Handbook for Public Playground Safety
     American Society for Testing and Materials (ASTM)
   NRPA- NPSI (national playground safety institute)-
    CPSI (certified playground safety inspector)
   Audits, Experts
       Expert Opinion
   Legal Cases
   Statutes/Laws
Top Ten Playground Hazards
     1. Improper Playground Surface
         75% of all playground accidents are from falls
         Not Recommended: astroturf, blacktop, packed
          earth
         Recommended:
              Rubber Mats
              Loose Fill
              Relates to Height
Surfacing


Determined by
 Height
 Depth
 Type
     Top Ten Playground Hazards
   2. Protrusion and Entanglement Hazards
       Protrusion
            cuts or impales
            may cause strangulation
       No open “S” hooks


   3. Inadequate Fall Zone/Equipment Spacing
       area under/near a piece of equipment where a child
        might fall
Equipment Spacing and Fall Zones
 Minimum requirements:
 6 feet from Single Stand Alone piece
  of playground equipment.
         Why?
   9 feet between two pieces of
    equipment?
         Why?
Top Ten Playground Hazards
   4. Entrapment in Openings
       head and shoulders
       General Rule: there should be no openings
        on playground equipment that measure
        between 3.5 inches and 9 inches
       look for openings- e.g. between rungs
           Why?
Clark v. Fair Oaks Recreation and Park
Dist.

   California case
   Injury: Broken Leg (entrapment)
   Mfg: Columbia Cascade
   1991 CPSC guidelines (for head
    entrapment):
       <3.5” or >9”
       Actual space: 4.5”
Top Ten Playground Hazards
   5. Fall Prevention Issues
       Guide rails
       Handrails should be age appropriate (i.e.
        thickness)
       Ladder rungs should be evenly spaced.
Top Ten Playground Hazards
   6. Trip Hazards
       exposed concrete footings
       surface changes
       borders
       tree roots, stumps
       rocks
Top Ten Playground Hazards
   7. Lack of Supervision
       design should allow line of sight
       > 40% of playground injuries are related
        to lack of supervision
Top Ten Playground Hazards
    8. Age Appropriateness
        separate areas for pre-school age and school
         age children- use appropriate equipment
    9. Crush Points, Shearing, Sharp Edges
        e.g. slides, turn about
    10. Lack of Maintenance or Modification
     of Equipment
        check surfacing, wear, secure hardware
Other Hazards
   Lead paint
   Arsenic in Wood
     Suspended Hazards -        should be 7’ above
      highest surface (tree branches, wires, cables, ropes,
      etc.)
     Burn hazards (slides)
             southern facing?, covered?
Recommended Exclusions
      Trampolines
      Animal Figure Swings
      Glider Swings
      Multiple Occupancy Swings
      Rope Swings
          may loop or fray (create a noose or break)
      Exercise Rings, and Trapeze Bars
          swinging hazard
Inspections and Audits
   Inspections and routine maintenance:
       frequent
       common problems
   Audit
       less frequent
       in depth
Risk Management/ Safety
Assignment
   Locate the “Handbook for Public Playground
    Safety”
   www.google.com keyword search; or
   www.cpsc.gov
   1. Locate six hazards at the playground(s) of your
    choice.
   2. Photograph and describe these hazards.
   3. Reference these hazards by the appropriate
    section number and text in the Handbook.
   4. Explain what needs to be done to correct this
    hazard.
   5. Submit this information in typed form with
    photos included.
Aquatics Safety
Facts and Figures

  99.4 million participants (1998).
  3.3 million in-ground pools.
  Public schools operate > 25,000.
Aquatics Facts

  Approx. 6-7,000 drownings per
   year
  3rd leading cause of accidental
   death
  Near drownings
  Diving #1 cause of sport paralysis
  Standard judgment: $6-9 million
Provide safe facilities and
equipment
 Be aware of pool occupancy standards
  and comply with them
 Comply with water quality
  requirements
       observe and fix unsafe conditions
 Remove diving boards if unsafe
 Secure facilities when not open for
  use
       attractive nuisance
RECOMMENDATIONS
BASED UPON CASE LAW
 Comply with statutes and ordinances
 Warn patrons of injury risks &
  dangers
 Formulate and enforce safety rules
 Read and acknowledge the applicable
  standards
    Swim Site Administration Considerations
         Natural Water and Beaches Only
 Post Safety           Use Lifeguards
  Messages               Where Appropriate
 Install Depth         Post Signs When
  Markers where          Lifeguard Not On
  Appropriate            Duty
 Define Swim Site      Analyze Use of
 Install Regulatory     Docks, Rafts, and
  Buoys                  Diving Platforms
 Monitor Water
  Quality
Swim Site Design Considerations
    Natural Water and Beaches Only
  Underwater  Debris
  Current Velocity
  Undertows and Riptides
  Water Level Fluctuation
  Water Quality