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Risk of Management 579
Risk ManagementRonald A. Kaiser Practitioner Consultant
Texas A&M University Thomas R. Cole Cleveland Metro Parks
Risk management is a part of the everyday business of park and recreation agencies, associations, and business enterprises, not unlike customer service, maintenance, personnel, and marketing. The process of managing risk need not be daunting, overwhelmingly difficult, or complex. However, it is an ongoing process, requiring time and commitment from top management and all employees of the organization.
Law pervades every management function. Selected legal concepts are throughout this text. See, for example, Chapter 2 (Management and the Law), Chapter 3, (Legal Authority and Jurisdiction), Chapter 11 (Physical Resource Planning, section on Property Acquisition), Chapter 13 (Management Operations, sec‑tion on Maintenance), Chapter 16 (Human Resources: Employment, section on Equity in Employment), and Chapter 22 (Law Enforcement and Security). The cur‑rent chapter focuses on negligence law and related liabilities.
In this chapter, as well as all others with legal information, the intent is to provide practical informa‑tion and general legal concepts applicable to park and recreation organizations and not to furnish legal advice. State law varies, especially about negligence, so always check with an a+orney in your state when seeking legal advice. Most of the risk transfer strategies discussed require the assistance of legal counsel. Some academic curricula offer a separate course in laws. The basic legal concepts in this chapter should be further explained and detailed in such course. This is an overview only.
What Risks are Managed?
Park and recreation agencies manage a variety of risks that fall into five general loss exposure groups:
property loss exposures;liability loss exposures;personnel loss exposures;financial loss exposures; andcontractual loss exposures.
1.2.3.4.5.
Improving public safety by reducing the fre‑quency and severity of accidents that may occur as a result of the above exposures is an important goal of risk management. Achieving this goal by creating a safer environment has the secondary benefit of creating a favorable community image, and engendering public support for park and recreation services.
Reducing the frequency of accidents and severity of injuries is a responsibility shared between partici‑pants and park and recreation organizations. Although tort law may make providers accountable for injuries, it has not made them absolute insurers of participant safety. Negligence law requires providers to act with reasonable care and prudence, to prevent unreason‑able risks of harm to participants. Correspondingly, participants must exercise reasonable care and foresight to avoid known circumstances, hazards, and situations that pose risks of harm.
There is a linkage between reducing the frequency and severity of accidents and the minimization of costly litigation. Through increased aAention to prin‑ciples of risk management, the cost of litigation can be reduced, thus protecting the financial resources of the organization.
Risk management does not seek to eliminate all risk within an organization, but provides a framework for balancing and understanding the risks inherent within the programs and services of the organization and for empowering staff to make good choices in dealing with those risks. The basic principles outlined apply to federal, state, and local public agencies, as well as to private for‑profit enterprises and nonprofit associations.
What is Risk Management?
Risk management encompasses three phases that will minimize the negative impact of accidental loss on the entity:
risk identification and assessment—identify and analyze the loss exposure;
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580 Risk Management
risk response strategies—examine different risk control approaches and select the appro‑priate one; andimplementation of a risk management plan—adopt/facilitate the selected strategy and moni‑tor performance.
These three phases, together with pertinent legal concepts, are detailed in this chapter and are depicted in Exhibit 21.2. In Phase I: the risk assessment phase, the various types of hazards associated with park and rec‑reation services are identified and categorized. There is no specific method for risk identification that suits all entities; the method and tools used will vary, accord‑ing to the nature and extent of the operation. What is important, however, is that a systematic procedure be established to assure total assessment in order to avoid unexpected losses. Some risk identification methods include: personal inspections, questionnaires, loss his‑tory review, safety audits, and financial statements. Risk analysis should utilize any organization management information database, and include identification of risks and estimation of the extent of the risks.
Phase II: risk response strategies, covers the approaches to control the activity risks and techniques
2.
3.
to finance the risk. Risk control approaches include avoidance, transfer reduction, and retention, while risk‑financing techniques include retention in the provider’s budget and transfer to a third party, such as indemnification (exemption for loss or damage oGen through a waiver) or insurance that would cover the loss or damage. Organizations should identify alternate approaches for the control of risks and the expected effect of each. Management must select an approach to address identified risks.
Phase III: the management plan phase, involves forming an operational plan for implementing the selected risk response technique and monitoring its effectiveness. The details, policies and procedures addressing the risk management process should be in a risk management manual.
Who Should Engage in
Risk Management?
All organizations, regardless of size or type, need a cur‑rent risk management plan. For small organizations, the plan need not be complex, but should be thorough and cover the range of programs, services, and facilities,
Exhibit 21.1
Some Common Risk Management Terms
Risk managers generally define risks as a probability of suffering some type of harm from a hazard that can cause a loss.
Risk is the probability of an accident, or event.
Technically, risk is a concept describing a mathematical probability of an event. It can be generally defined as the uncertainty about outcomes that can be either negative or positive.
Risk assessment is the evaluation of the probability of accident multiplied by losses from the accident.
Risk is commonly used to describe not only the probability of the event, but also its consequential losses.
Harm may include personal injury, death, and property and environmental damage. Hazard is a thing that poses a level of threat to life, health, property or environment.
There are many types of hazards; but in the context of park and recreation there are three types:
natural;man‑made; andactivity related.
Natural hazards are anything in a park and recreation seAing caused by a natural process. Man‑made and activity hazards relate to infrastructure and specific recreation programs.
Loss generally refers to negative economic and financial harm to the organization.
Loss exposure is any condition that presents the possibility of loss, whether or not an actual loss occurs. In some instances, a loss can also affect the prestige and political standing of an agency, which eventually affects the economic condition of the agency.
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Risk of Management 581
Exh
ibit
21
.2
Ph
ase
s o
f R
isk
Ma
na
ge
me
nt
IDENTIFICATION
Types
Parties
Hazards
• To
rt
• Agency
• En
vironm
ental
• Con
tract
• Bo
ard
• Infrastructure
• Prop
erty
• Em
ploy
ees
• Prog
rammatic
• Bu
siness
• Vo
lunteers
• Em
ergency
• Hum
an Rights
• Tran
sportatio
n
ASSESSMENT
Probability Severity
Financial
• High
• Fatal
• Catastrop
hic
• Med
ium
• Severe
• Critical
• Lo
w
• Major
• Mod
erate
• Minor
• Minim
al
• Lo
w
ADOPTION
Acceptance
Evaluation
• Bo
ard
• Activity
• Director
• Re
sults
• Staff
• Vo
lunteers
RISK RESPONSE STRATEGIES
Avoid
Transfer
• Le
asing
Reduce
• Con
tractors
• Inspect
• Waivers
• Warn
• Re
mov
e Insurance
• Re
pair
582 Risk Management
including special events and partnership programs. Plans for larger organizations reflect their complexity. The plan is tailored to accommodate the structure and style of each provider. There is no standard model plan that can apply to all organizations. (See Compendium 21‑1 for generic table of contents for a risk manage‑ment plan and 21‑2 for Menomonie Risk Management Plan.)
Why Risk Management?
Risk management adds “value” to an operation in four dimensions:
it enhances participant experiences;it provides good stewardship of assets;it forestalls problems; andit encourages professional practices.
Risk management enhances participant experi‑ences as the quality of customers’ experiences increases, especially when providing for safety. Less fear of risk provides greater freedom for participation. The par‑ticipant experience deteriorates in direct relation to the exposure to unreasonable risks for injury. Also, the safer a program is, the more the stature and public image of the organization is enhanced in the community.
Risk management provides good stewardship of assets because financial, physical, and human resources are protected and conserved by good risk manage‑ment practices. Further, risk management determines the most cost‑effective operational strategies not only to reduce the frequency and severity of its potential liabilities, but to finance them.
Risk management forestalls problems, including legal actions. Risk management helps an organization have a beAer prepared defense if sued. A risk manage‑ment program should deal with the legal risks in a way that protects the provider and those who serve it from undue liability exposure.
Finally, risk management encourages professional practices. Risk management embodies excellent profes‑sional practices. It also increases employee and volunteer pride, loyalty, safety, confidence, and productivity.
Principles of Risk
Management Programs
The following guidelines should anchor agency risk management programs. Risk management should:
be an integral part of the organization;be part of agency decision‑making;address uncertainty;
1.2.3.4.
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be systematic and structured;be based on best available information;take into account human factors;be iterative and respond to change; andbe commiAed to continual updating.
Who Facilitates Risk Management?
The size, type, and complexity of a park and recreation organization dictate the internal process for preparing and implementing risk management. However, what‑ever the nature of the organization, there should be a risk manager, an organization risk management team, and supportive policymakers and administrators.
Risk Manager
There should be an employee with risk management responsibility and the authority to implement the poli‑cies established for risk management. It is essential to assign responsibility for this vital operation, so that the function of risk management receives the credibility and organization‑wide acceptance it warrants. The risk management team members must work closely with aAorneys and claims adjusters on mitigating the effect of claims and litigation, the business officer in selecting an appropriate financial course of action, and program staff in obtaining essential employee performance. It must not be perceived only as insurance purchase. (See Compendium 21‑3 and 21‑4 for two risk manager job descriptions.)
The structure and size of the organization will determine whether the risk manager doubles as finan‑cial officer, recreation director, the enterprise manager, or the like, or has no other responsibilities. Larger orga‑nizations and businesses, or agencies that are part of a large parent organization (such as a city) may have staff devoted to risk management, under which the parks and recreation risk manager works. In others, it may be an adjunct responsibility of a business manager, safety officer, administrator, or other staff member. Whatever the arrangement, someone in the organization should be identified as the lead person responsible for develop‑ing and implementing a risk management plan. This is not to imply that risk management is a one‑person job. It does mean that one person should be the leader of a team effort to reduce and manage risk. “Everyone’s responsibility is no one’s responsibility!”
Further, the risk manager should not be merely a safety director with a sophisticated title. Safety is not the only concern; there also are the financial risk management aspects and the issue of compliance with personnel and environmental and regulatory require‑ments. However, a safety director or specialist might work under the risk manager. In a small operation, both functions might be given to the same person.
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Risk of Management 583
Many public entities participate in joint risk man‑agement with other public agencies, such as munici‑palities, schools, or counties. An inter‑organization joint risk management system may be formed that has a management team with representation from each municipality or district, as well as its own manage‑ment personnel. The team will establish, implement, and monitor procedures to reduce the current level of losses. However, each individual agency still must have its own designated risk manager.
Risk Management Team
While one person may be given specific responsibilities for administering a risk management program, no per‑son should be expected to facilitate the program alone. The risk manager should recruit a multidisciplinary team, including aAorneys, insurance providers, safety specialists, and program, maintenance, and finance staff. Together they should examine risk issues, consider options for controlling risks, contribute to the risk man‑agement plan, and serve as a catalyst for action.
The risk management team should review all aspects of organizational policies, operations, and procedures that impinge on the organization’s risks. Typically the team would be expected to:
recommend goals and objectives for adoption by the policy body;guide management in seAing risk management policy;establish channels of communication on all maAers related to risk management;examine all critical risks;develop strategies for controlling losses;provide training of employees related to risk management;monitor implementation; andevaluate risk management efforts and options.
The initial preparation of a risk management plan takes extensive work. The plan details phase I and determines approaches of phase II. ThereaGer, the task is to monitor the program continuously and review the changing environment, current concerns, and the organization’s circumstances and capabilities regarding the approach to risks and implementation.
Policymaker and Administrator Support
Risk management requires policy and administrative support to ensure proper funding and implementation. It is important to remember that:
risk management goals and objectives should be adopted as a guide to the planning and implementation process, as illustrated in Exhibit 21.3;
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risk management is an ongoing process that does not end with preparing a plan; continued staff and financial support is necessary, and the plan must be a dynamic document reflecting the shiGing demands, needs, and capabilities of the organization; andthe governing authority must adopt a policy statement endorsing risk management and, as needed, adopt policies requisite to certain risk management decisions.
Phases of Risk Management
There are three phases of risk management.
Phase I: Risk Identification and Assessment
This phase of risk analysis has two steps: identification of the risks and assessment of their nature.
Step 1: Identification of RisksRisk identification is crucial, because it is not possible to manage and mitigate risks without an awareness of the nature of the risks. The risk management team should identify as many risks as it can. The team should examine the potential for legal‑based claims, hazards, and parties at risk; and prioritize those risks accord‑ing to their loss probability and then address them accordingly.
Legal‑based classes of loss. Just as each park and rec‑reation organization is unique, so too is the spectrum of legal losses that it has to manage. Most organizations must deal with five classes of exposure to loss.
1. Property loss exposures present the possibility of loss to the entity’s buildings, structures, and equipment, due to both natural and human causes of loss. Examples due to natural causes include snow, hail, rain, flood, lightning, tornado, hurricane, or earthquake (legal issues may arise as to coverage under agency insurance policies). Examples due to human causes include arson, vandalism, theG, riot, or acts of terrorism. Fire, a com‑mon loss of property, can occur as a result of natural or human causes.
2. Liability loss exposures present the possibility of loss to the entity resulting from a negligent act or omission (a tort), allegedly causing injury or damage to another party. Liability loss examples include:
premises‑related accidents, e.g., slip/fall, trip/fall;vehicle operation;product defects;
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584 Risk Management
intentional torts, e.g., assault, baAery, defama‑tion, false arrest;claims of nuisance based on unreasonable interference with the use and enjoyment of property, e.g., lighted athletic facility that casts light on adjoining property;employment practices liability stemming from violation of the Equal Employment Opportunity Law (EEOC) based on age, gen‑der, disability, religion, ethnicity; or based on claims of wrongful termination;human rights related liability related to sexual harassment, claims of physical or sexual abuse of children; violation of the Americans with Disabilities Act (ADA); andconstitutional rights liabilities, based on viola‑tions of rights to use the parks as public forum or the right to freedom of religion by employees and patrons.
3. Personnel loss exposures present the possibil‑ity of loss to an entity caused by an employee injury, disability, or death that deprives the organization of that individual’s services (usually covered by workers compensation insurance). Personnel losses may also include the services of volunteers who are injured in the course and scope of their volunteer duties. Depending on the venue, organizations may have the option to include volunteers under the entity’s work‑ers compensation coverage, usually for an additional premium.
4. Financial loss exposures present the possibility of loss to the entity due to a reduction in revenue, increase in expenses or a combination of both. Financial loss is oGen the result of a property liability or personnel loss, but may also occur as a result of burglary, robbery, fidel‑ity/embezzlement, breach of contract or disruption of service by a major supplier.
5. Contractual losses exposures present the possi‑bility of loss from breach of contract by the park and recreation organization, possibly resulting in damages,
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payments, or court orders to perform, and breach of contract by a contractor vendor resulting in losses to the organization
Hazards. There are five types of hazards common to park and recreation organizations. They include park land/premise, infrastructure, program, emergency care, and transportation hazards. Although these are the most common hazards, each organization will have its own challenges based on local conditions, facilities, and operating procedures.
Environmental hazards are associated with nature, or natural conditions. They may present a significant threat to park visitors and program participants. The critical consideration is the degree of danger posed to the participant. The risk management team should develop an understanding of the physical characteris‑tics of natural hazards, degree of danger, and visitor characteristics as factors contributing to risk. Physical factors contributing to risk commonly include:
slippery surfaces;holes or protrusions;falling objects;steep slopes or vertical drops;dangerous plants or animals;weather conditions;water hazards; andlighting (visibility).
The severity of accidents associated with beaches warrants special aAention. Hazards that are sources of legal risk to park and recreation agencies that maintain beaches include:
abrupt changes in water depth;inadequate depth for diving;submerged structures;rip currents and surf conditions;water quality and clarity;aquatic vegetation;floating debris;
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Exhibit 21.3
Goal/Objective Statements
Goal:To develop a risk management plan that seeks to provide the safest environment for all park visitors, while maintain‑ing the essential natural and recreation character of the park.
Objectives:To establish a risk management team by (specify month).To inform all employees of the program and to develop a process to solicit their input.To provide an annual training program on safety inspections for employees and volunteers and to ensure that all employees and volunteers aAend the program at least once every three years.
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Risk of Management 585
sharp objects and hot coals buried in the sand; andswimming and boating conflicts.
Infrastructure hazards include all hazards relat‑ing to structures, such as facilities, buildings, roads, and trails. Although the improper design, layout, and construction of areas and facilities can pose a hazard to users, infrastructure hazards more oGen arise from improper inspection or maintenance, making safely designed or constructed facilities defective and danger‑ous. (See Chapter 12, Physical Resource Management, for more information about maintenance and inspec‑tion.) The more common infrastructure hazards include conditions such as:
slippery/uneven surfaces;stairs/steps in poor condition;protrusions/sharp edges;moving parts;overhead objects;design/layout defects;lack of fences or barriers; poor condition of fences or barriers; andinadequate lighting.
Over the last 25 years a number of organizations, including NRPA, have developed safety protocols and checklists for playground equipment design and main‑tenance. These protocols and checklists resulted from an analysis of playground injuries by the U.S. Consumer Product Safety Commission. (See Chapter 12, Physical Resource Management, for maintenance guidelines.) Hazards associated with playgrounds include:
falls to hard surfaces;falls to other equipment;defective equipment from inadequate main‑tenance;improper installation of equipment;inappropriate playground equipment;inappropriate playground layout; andinadequate maintenance or lack of fall‑absorb‑ing surface materials.
According to the National Safety Council, drown‑ing is the second leading injury‑related cause of death among children younger than 14 years old. Most of these deaths occur in residential swimming pools and not in public pools. However, there are hazards asso‑ciated with swimming pools that pose risks for park and recreation agencies. Facility and activity hazards include:
inadequate depth for diving;improper depth markings;condition and location of diving boards;inadequate pool depth related to diving areas;
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failure to separate swimming and diving;inadequate number of lifeguards;lack of vigilance of lifeguards; failure to prevent boisterous behavior;poor water quality; andfailure to close facility in dangerous weather.
Program hazards result from the fact that, if they are not organized and conducted properly, recreation programs can put participants at risk for injury. Hazards can result from failure to properly or/and adequately:
supervise based on location, competency, and number of supervisors, or the nature of their supervision;develop and enforce safety rules;train supervisors and instructors;screen and conduct background checks on employees and volunteers for sensitive posi‑tions in children’s programs;instruct participants;ascertain participant fitness;furnish or require use of proper safety devices and equipment;select appropriate activity for age, experience, and ability; andprovide a wriAen description of the program activities and the risks associated with the activities.
Emergency care hazards stem from the fact that park and recreation organizations have a legal duty to provide emergency care and first aid to visitors and program participants. Many factors influence the type of care to be rendered, including the nature and loca‑tion of the program or facility, the aAributes of users, expectations regarding range of injuries associated with programs or facilities, and proximity to medical facili‑ties. Some of the more common bases for negligence claims include failure to:
provide prompt aid;have communication in place to secure emer‑gency aid quickly;employ trained personnel;supervise or equip personnel rendering aid;provide appropriate treatment;transport injured persons appropriately; andhave emergency action plans in place and practiced.
It is imperative that park and recreation organiza‑tions have a crisis management plan for events signifi‑cant enough to cause a shutdown in services or close a facility. These are generally larger than emergencies although they may require some of the same types of responses as emergency care. Some of the most typical
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586 Risk Management
crises for which park and recreation must have crises plans include:
significant weather events such as tornados, hurricanes, thunderstorms, or flash flooding;natural hazards such as land subsidence(sink holes), mudslides and tsunamis;forest fires;terrorist aAacks;facility fires;chemical spills; andcommercial transportation disasters, e.g., plane crash, train derailment.
Transportation hazards must be considered by all park and recreation agencies. A number of recreation programs require participant transportation posing hazards for program sponsors. However, risks can be managed if transportation hazards are identified and minimized. Hazards associated with transporting par‑ticipants include failure to:
use the appropriate type of vehicle;maintain the vehicle;determine if the driver has a proper license;train and supervise the driver;have a policy regarding participants being drivers;develop criteria for determining employee acceptable/unacceptable driving record and conduct driving; andon all licensed drivers of organization vehicles.
Parties at risk. Although the focus is oGen on organiza‑tional risk, it is important to recognize that board mem‑bers, employees, and volunteers are subject to varying degrees of accident and liability risk while engaged in their respective duties. From a liability perspective, legal procedures, defenses, and economics compel the naming of all possible parties, including employees and volunteers, in lawsuits. The risk management plan should consider the respective interests of all at‑risk parties when forming risk management strategies.
The park and recreation entity. As a general rule, the park and recreation entity, whether a public agency, nonprofit association, or for‑profit enterprise, may be liable for the neg‑ligent acts of its board members, employees, volunteers, and agents, unless liability protection is extended by state law. Various legal doctrines allow for liability to be imputed to the entity providing the park and recreation services. These doctrines may be negated by some intentional torts, such as assault and baAery.
Governmental immunity is a legal principle, adopted from English Common Law that shields fed‑eral, state, and local governments from civil suits and criminal prosecution. It is an immunity doctrine that the
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sovereign, or state, cannot commit a legal wrong; hence the saying “the king can do no wrong.” However, the federal government and all states have passed statutes (tort claims acts) allowing lawsuits to be filed for certain types of governmental misconduct. The effect of many of these laws is waiving governmental immunity to a limited extent.
Federal agency immunity and liability. The federal government and its agencies have sovereign immunity. However, Congress has waived immunity, through the Federal Tort Claims Act (FTCA), allowing the federal government, and its agencies to be sued in federal court if a tortuous act of a federal employee, or person act‑ing on behalf of the United States, causes the damage. FTCA is not a broad waiver of sovereign immunity, but is limited to those instances where the United States is liable if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred. That means that the federal court must apply the state law where the injury occurred in determining federal liability. For example, Texas negli‑gence law and defenses would apply in seAing federal liability if the injury occurred at Big Bend National Park, which is located in west Texas.
State agency liability and immunity. All states have some type of tort claims act seAing forth the liability and immunity of public agencies—state, county, municipal, and schools. Typically, these statutes allow for lawsuits against public agencies based on negligent operation of motor vehicles, facility defects, and negligent supervi‑sion. In some states, there is liability only to the extent of the insurance coverage. Each state’s law is slightly different; there is no model law.
Most states provide immunity for the discretion‑ary acts of its officials and employees. A discretionary act is one where a choice is given to the public agency or official as to the performance or nonperformance of an act. It involves the exercise of evaluation rather than an implementation of a policy. For example, a decision to have, or not have, lifeguards at a beach is a discre‑tionary act.
Local agency liability and immunity. Municipalities, boroughs, townships, counties, and school districts have traditionally been immune from tort liability. However, state tort claims acts generally provide that local governments and their agencies may be liable for the negligent acts of their employees and agents.
State recreational user statutes. To encourage private landowners to make their land available to the public for noncommercial recreation use, all states have enacted laws limiting landowner liability for injuries suffered by the recreation user. The effect of these statutes is to reduce the standard of care that the landowner is required to provide to the recreation user. Generally, under these statutes, a landowner is under no duty to:
Risk of Management 587
inspect the property to discover hidden dan‑gers;warn the recreation user of hidden dangers, except known ultra‑hazardous conditions;keep the property reasonably safe for use; orprovide assurances of safety to the recreation user.
Landowners must avoid injuring the recreation user through gross negligence or willful and malicious misconduct. Liability can aAach to landowners when these two types of misconduct cause injury to the rec‑reation user.
In spite of the fact that these laws were craGed to protect private landowners, some state court decisions have extended this protection to state and local public agencies. Check with your aAorney as to the applica‑tion of recreation use statutes to public agencies in your state.
High‑risk recreation activity statutes. In order to provide more recreation opportunities for people, espe‑cially high‑ risk or adventure/challenge activities, many states have enacted statutes that share the responsibil‑ity for injury between the provider of the facility and the participant engaged in the activity. These statutes encompass a broad range of outdoor activities, and gen‑erally provide that the recreation participant assumes all the normal and customary risks associated with the activity. These statutes have allowed communities to build skate parks where once they were afraid to offer such facilities. Another example is the ski responsibil‑ity laws enacted by many states. These laws generally define the ski operator duties and provide that the skier assumes risk for injuries related to risks of skiing.
Board members. The general rule is that board mem‑bers are not individually liable for the collective actions of the board or for the tortuous acts of organization employees. However, board members can be individually liable for:
collective acts of the board or individual acts of board members that are outside their legal scope of authority;breaches of statutory and/or fiduciary duty or violation of participant/employee constitu‑tional rights;violations of open meeting and open records acts; andintentional torts, such as assault and baAery, slander, or libel.
Employees. The general rule is that employees, includ‑ing administrators and supervisors, are individually liable for their own tortuous misconduct; however, administrators and supervisors may not be liable for the tortuous acts of their subordinate employees. Managers and supervisors are
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liable for their own negligence and the failure to carry out their own supervisory or administrative responsi‑bilities, which might enhance a subordinate’s likelihood of being negligent. For example:
failing to employ competent personnel;failing to train employees properly;failing to provide proper supervision;failing to establish and enforce safety rules;failing to staff adequately;failing to warn of, remedy, or remove defective and dangerous equipment;failing to follow the standards of a reasonable professional as related to a specific program, activity, or service;failing to properly facilitate maintenance, aGer notice of dangerous conditions (see Chapter 13, Management of Operations);deliberate disregard when complaints are made of sexual harassment or child abuse by an employee (see Chapter 16, Human Resources: Employment); andnegligent hiring, that is, failure to do proper background checks for an applicant’s propen‑sity for violence (see Chapter 16).
The immunity afforded public entities under the tort claims acts, for the most part, does not give protection to public employees. However, there are exceptions. For example, the Ohio Political Subdivision Tort Liability Act (Ohio Revised Code 2744) provides that an employee is immune from liability, unless the employee’s actions were malicious, wanton, or reckless, or manifestly outside the scope of employment. Other tort claims acts do authorize indemnification of employ‑ees, particularly through carrying insurance.
In some situations, there is “qualified immunity” and “absolute immunity,” because of the nature of the task being performed by the employee. This is par‑ticularly applicable to law‑enforcement personnel and some administrative or supervisory responsibilities.
A few states provide some damage limitations for employees of nonprofit associations. In Texas, for example, the Charitable Immunity and Liability Act limits an employee’s liability to $500,000 in damages for each person, $1,000,000 for each single occurrence of bodily injury or death, and $100,000 for property damage. Employee liability is not limited for intentional torts (assault, baAery, false arrest), willful and wanton misconduct, gross negligence, or for acts commiAed beyond the scope of employment.
Volunteers. The general rule is that volunteers may be liable for their own tortuous misconduct, unless they can qualify under the federal Volunteer Protection Act or a state volunteer statute. Many states have enacted laws provid‑ing negligence liability protection for volunteers for
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588 Risk Management
certain acts or omissions resulting in death, damage, or injury if the volunteer was acting in good faith and in the course and scope of his or her duties. Protection is limited to ordinary negligence; volunteers remain fully liable for any gross negligence, willful and wanton mis‑conduct, or intentional tort. A limitation of these state laws is that protection is afforded only to volunteers providing services to nonprofit organizations.
Some states specifically reference youth sport, including both coaches and officials. These youth sport laws generally require the completion of a training course as a prerequisite to receive protection.
In 1997, Congress passed the Federal Volunteer Protection Act (P.L. 105‑19, 11 Stat. 218) extending coverage to volunteers of both governmental entities and nonprofit associations. One condition to protec‑tion is that volunteers are only covered when provid‑ing services for which they have qualifications. If a volunteer does not have the skills or qualifications and an injury results, the volunteer could face liability risks. For example, an organization that uses volunteer lifeguards should require that these volunteers have the same qualifications as those for paid lifeguards. It should be noted that, while the volunteer is protected, the agency that uses the volunteer is not protected under the Volunteer Immunity Act. The agency must get its protection from other sources, such as immunity statutes or insurance discussed above.
As added protection for volunteers, organizations, agencies, and associations may provide indemnification or insurance coverage for their volunteers. The differ‑ence between indemnification and insurance coverage should be noted. When an individual is indemnified, the organization pays the judgment (award) a=er the award has been made. When an employee or volunteer is covered by insurance, the insurance carrier defends the suit from its initial filing, which is of considerable benefit to individual employees or volunteers, who oth‑erwise would have to secure their own lawyer to defend themselves. Individuals at risk may carry their own pro‑fessional insurance. A number of national organizations make this available at a nominal cost, such as NRPA, AAHPERD, state teacher education associations, and some associations for specific sports.
Step 2. Assessment of RisksAGer the risks have been identified (step 1), they must be evaluated by the risk management team as to 1) “risk probability,” or frequency of occurrence, and 2) “conse‑quence severity,” or the severity of injury to participants and the financial impact on the organization. Since no two risks are alike, they must each be evaluated indi‑vidually. For example, statistics suggest that there are far more accidents and injuries on playgrounds than at swimming pools. The severity of playground injuries,
however, is oGen less than at pools. There are a num‑ber of data sources to aid in the assessment of accident probability and consequence.
Organizational data. The park and recreation organization may have an accident record keeping or documentation system. If there is not one, one should be established. Existing data on frequency and severity of accidents and risks can be used to develop a risk profile for the organization. Incident and accident reports are very important and should be used to develop hazard profiles for facilities and programs. (See Phase III, Adoption and Facilitation, below.)
Incident and accident reports from other park and recreation organizations provide a data source that is oGen overlooked. Although organizational comparabil‑ity is desirable, it is not a necessity. Data from park and recreation agencies with more facilities, larger staffs, and bigger budgets also can be used to develop risk profiles.
Staff assessment. Staff members with experience in particular facilities and programs can exercise their own judgment in estimating probabilities and consequences in order to evaluate agency risks. This is particularly useful when frequency and severity are low, when there is not much data available, or when an activity or ser‑vice is new to the organization. Use staff to gather both qualitative and quantitative data. Of course, the risk management team will have excellent insights into risk assessment. In addition to the profiles, the risk manage‑ment team should rank the risks, assigning priorities.
National and state data. A number of national and state agencies and associations have data on accident and injury rates. Three national organizations have information on park and recreation injuries. The U.S. Consumer Product Safety Commission (CPSC) main‑tains a National Injury Information Clearinghouse that has a treasure trove of data. In dealing with playground safety, the CPSC analyzed injury data, and published the safety handbook that is widely referenced and used. The Center for Disease Control and Prevention (CDC) also tracks injury data and has a database Center for Injury Prevention and Control. Finally, the National Safety Council is a nonprofit national organization with a mission to prevent accidental injury and death. The council has extensive material on injuries and drowning at swimming pools and beaches.
A number of states have agencies and organiza‑tions that deal with accident and safety statistics. One source is the state municipal league. These organiza‑tions oGen provide risk pool insurance to member cities and can be a source of data.
Risk probability and frequency. Probability reflects how frequently a risk occurs. Many organizations rate risks as high, medium, or low. This represents a simple
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way to characterize and understand risks (see Exhibit 21.4). The three categories of frequency could be further delineated by using a point scale, for example, a three‑ or five‑point scale. Regardless of the scale used, the com‑parative frequency designation should reflect sound judgment, based on the best available data.
Consequence severity. To determine how severe the consequences could be, consider both the severity of the injury as related to the participant, and its financial impact on the organization. It can be useful to express injury and financial severity on a scale. The scale for injury severity usually ranges from fatal to low (see Exhibit 21.4). User injuries may financially affect the provider agency and its ability to function. The more severe the participant’s injury, the more profound the financial consequences for the provider agency tend to be (see Exhibit 21.5).
Using the ratings for the various risks on the three scales (e.g., low‑low‑minimal), the risk management team can prioritize the risks.
Phase II: Risk Response Strategies
Once the risk management team has identified the risks and determined the probability and consequences of those risks, it can begin considering available risk response strategies. The strategies can be classified as risk control (actions to deal with the risk itself) and risk financing (techniques for paying for the result of the risk). See Exhibit 21.6 for a matrix outlining a framework for selecting a risk control strategy.
Risk control strategies. There are three strategies available to the park and recreation organization: avoid‑ance, transfer, and reduction. The risk management team must use subjective appraisal and exercise professional judgment to select risk control strategies. The aAributes of the organization, its mission, and its financial status must be matched with the type, frequency, and severity of risk exposures.
Risk avoidance. One way to manage certain risks is to avoid them. Although the laws sometimes require agencies to offer certain services with which come certain risks, for the most part, organizations choose what risks they assume. For example, a park department may be required by law to own and manage land, but the activi‑ties and services offered on the land are at the discretion of the park department. Likewise, if a nursing home, whether public or private, wants certain state funding, and to qualify it must hire an activity director and offer recreation, then it must offer recreation activities, but the choice of activities offered is discretionary.
Risk transfer. This strategy involves the contractual transfer of risk to a third party. Three of the commonly used transfer strategies are:
leasing;independent contractors; andliability waivers
Leasing and rental agreements. These practices are widely used in the private sector to transfer liability
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Exhibit 21.4
Injury Frequency & Severity Scales
Injury Frequence Scale
High—Future incidents are expected recurrently, more or less on a routine basis. For some risks, these might be yearly, monthly, or weekly in occurrence. Medium—Occurrences are infrequent or will seldom happen. They could be described as occurring more oGen than desirable.Low—Incidents will be unusual and unexpected, but not impossible.
Injury Severity Scale
Fatal—One or more deaths possible. Severe—Injuries to one or more persons, extensive hospitalization required, permanent disability, disfig‑urement, or loss of bodily functions; injuries may be life‑threatening (e.g., broken back, loss of limb, perma‑nent brain injury).Major—Substantial injuries, though non‑life‑threat‑ening, temporary disability and/or loss of bodily func‑tion, hospitalization required (e.g., skull fracture, loss of kidney). Minor—Injuries that require first aid, or minimal hos‑pitalization, short‑term discomfort, no permanent dam‑age (e.g., broken arm, sprained ankle, minor sutures).Low—Incidents requiring no first aid.
Exhibit 21.5
Financial Consequences Scale
Catastrophic—Losses that require major tax or fee increases; private enterprise would declare bankruptcy. Critical—Losses that would require major service cut‑backs, reorganization, facility closings, major program cancellations. Moderate—Temporary service reductions, minor fee increases, or financial reallocation. Minimal— Losses can be absorbed with current opera‑tion revenues. No program reductions.
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risks to a tenant or user of a facility. They are increas‑ingly being used by park and recreation organizations. While many organizations allow groups to use areas and facilities by signing a reservation, they should also consider using the agreement to transfer risk of harm to the group. Unless the agreement or lease specifi‑cally transfers the custodial care and maintenance of the area or facility to the lessee, the provider remains legally responsible for the condition of the facility. However, one may transfer the liability for the activity being conducted on an area or in a facility to the renter or lessee by so stipulating in the wriAen agreement or lease. Further, it is desirable to include a stated transfer of liability for the behaviors of the participants engaging in such activities to the organization that is renting or leasing the area or facility. With these two provisions, the provider of the facility/area is liable only for the condition of the facility or area itself.
A common practice for financial risk transfer is to include an indemnification agreement or clause, or require a certificate of insurance in the lease or rental agreement and require additional insured status on the lessee/renter(s) liability insurance policy.
Independent contractors. Using independent con‑tractors to provide services is another way to transfer
risks. As a rule, organizations that hire independent contractors generally are not liable for the negligence or tortuous conduct of the independent contractor. This means for example, that an organization can hire aerobics or weight training instructors as independent contractors to conduct fitness classes in its community center, and not be liable for negligent acts of the instruc‑tor. Organizations that use independent contractors do not have to withhold taxes, provide health insurance, or give other benefits to them.
If using this approach, it is imperative that the organization understand and follow the requisite conditions for establishing and maintaining the independent contractor relationship. Generally, an independent contractor is a person, partnership, business, or corporation that provides goods or services to another. The contractors retain control over their schedules, number of hours worked, and method and manner of performing their jobs. While the park and recreation organization can set outcome criteria, it cannot dictate the methods and manner for meeting the outcome criteria. Efforts to direct or control the manner in which the program or service is conducted could negate the independent contractor status.
Exhibit 21.6
Risk Matrix as Guide for Risk Management Strategy
Low HighSEVERITY
Retain and Reduce Transfer is option Avoid
Retain Work on Reducing
Transfer Work on Reducing
FREQUENCY
Low
High
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The Internal Revenue Service suggests examining three aspects of the employment agreement: behavioral control (does the contractor have the right to control method and manner of doing the job?), financial control (does the contractor have control over their wage rate?) ,and contractual terms (are taxes withheld and benefits provided?). Entities must weigh all these factors when determining whether a worker is an employee or inde‑pendent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor, and no one factor stands alone in this determination. Also, factors that are relevant in one situation may not be relevant in another. The keys are to look at the entire relationship, consider the degree or extent of the right to direct and control, and finally, to document each of the factors used in the determination. Some organiza‑tions call the employment an independent contract, when it is not. (See Chapter 16, Human Resources: Employment.)
Park and recreation organizations can retain a nonprofit or profit‑based organization to provide inde‑pendent contractor services. If the organization does not wish to assume the liability risks of adventure activities (horseback riding, raGing, ropes courses, climbing, etc.), it can use independent contractors to provide that service to its constituency. Organizations may also con‑tract for other services, such as concessions, premises maintenance, or security.
Reasonable care should be used in selecting competent independent contractors. The credentials of the independent contractor, for whatever service is being contracted, must be carefully and systemati‑cally checked. As with leasing and rental agreements, independent contract agreements should include an indemnification clause. In addition, evidence of liability insurance, with adequate limits, should be provided utilizing a standard certificate of insurance, including additional insured status for the entity.
Liability waivers and releases. These agreements transfer injury and liability risks from the program sponsor to the participant. As a general principle, most states permit participants in privately sponsored recre‑ation programs to surrender their rights to recover in tort for the negligence of others through waivers and releases. In state cases dealing with publicly sponsored park and recreation programs, the legal efficacy of waivers is more varied. For this reason, it is important to consult an aAorney in your state regarding any case law on liability waivers used in the public sector.
When using waiver and release agreements, the following principles should be followed. The agreement:
should be voluntarily signed by an adult;should state in explicit language the conduct that is being waived;should acknowledge the participant is aware of and accepts the inherent risks of the activity and will not hold the sponsor liable for them;should extend the waiver to the sponsor, its staff, and employees; andshould include language so the participant is aware that they are signing the waiver.
Waivers are an effective strategy to transfer liability risk, however they are not “ironclad.” Waivers and releases pit two bedrock legal concepts against one another: the right to contract for performance and behavior against the tort obligation to answer in dam‑ages when one injures another by breaching a legal duty of care. This has troubled some state courts and a number of cases can be cited in which courts have invali‑dated the release on a technicality or because it offends state policy. However, the majority of states recognize and enforce waivers and releases. (See Compendium 21‑5 for sample waiver.)
Waivers signed by a minor will generally not be enforced. Parents cannot sign away a child’s rights, but can sign away their own rights if their child is injured. A minor may ratify the waiver upon reaching major‑ity. In dealing with minors, an acknowledgment of risk form, or an agreement to participate form can be used. Such a form describes the inherent risks and thus gives an express, wriAen verification by the participant regarding knowledge and appreciation of such risks. A participation form should set forth the expectations of the participant, the requirements to participate, the behavioral expectations, and the responsibilities which, if violated, give some evidence of secondary assump‑tion of risk and thus contribution under comparative fault laws. These forms should be signed by the par‑ticipant and, if a minor, by the parent or guardian. (See Compendium 21‑6 for sample warning.)
Risk reduction. This strategy seeks to reduce both the frequency and the severity of a risk. Accident fre‑quency may be reduced by risk prevention, such as installing a railing on a stairway; or severity may be reduced by providing timely first aid to someone who falls on the steps. Inspections, preventative maintenance, employee competency, and supervision are imperative when adopting this approach.
Areas and facilities. Organizations can practice area and facility risk prevention and reduction by:
anticipating the occurrence of “risky” activities;inspecting areas and facilities to discover hid‑den defects and hazards;warning users of hidden risks once they are discovered;
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instituting timely repairs of hidden defects;removing facilities or equipment from service if repairs cannot be made in a timely manner;contracting an independent safety audit; andinstalling fire protection/sprinkler system.
Recreation programs. Recreation program risk pre‑vention and reduction practices include:
hiring competent personnel to supervise and conduct activity programs; this includes insuring that they possess the appropriate cre‑dentials based on education, experience, and certifications;communicating expected performance mea‑sures and safety obligations;completing a background check, particularly on individuals working with children;inspecting facilities and equipment to discover defects, and removing hazardous facilities and equipment from use;monitoring conformity to performance mea‑sures and safety obligations;correcting improper performance;providing safety training and education to staff;establishing and enforcing safety rules and regulations; andproviding the appropriate level of first aid to injured users/participants.
While this list is not exhaustive, it presents a starting point for further refinement of program risk prevention and reduction practices. The listing is based on a history of park and recreation litigation and out‑lines basic legal obligations for providers of services and programs.
The focus of a risk management operational plan is on reduction. See the section on Manual of Policies and Procedures, below.
Risk retention. Risk retention strategy involves carefully determining whether an activity is worth keeping, even though it presents a risk. This may be done if the risks are minimal and rare or if the risks are more than minimal, the benefits are worth the risks. One must consider the risk transferring and risk reducing strategies along with retention. This might include warning participants. The City of FayeAeville, Arkansas, has a castle created by an artist and has both historical and aesthetic value. They have chosen to keep the castle even though there are some risks identified with it.
Risk financing strategies. Paying for the losses that do occur is another component of risk management. Risk financing involves either retention (paying for losses
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from the organization’s budget) or transfer (having a third party pay for the loss).
Retention. There are several techniques for financ‑ing retained risk available to park and recreation providers.
Current expensing. This is also known as the “pay‑as‑you‑go” system. The organization pays for the losses as they arise out of the ongoing budget. This works well if the loss expenses are small; however, it may result in insufficient funds to respond to unexpectedly large losses.
Unfunded reserves. An accounting technique known as the unfunded reserve may help respond to large losses by noting the likelihood of future loss pay‑ments on the organization’s books. It keeps manage‑ment aware of future expenses for financial losses.
Funded reserves. Money is set aside in the provid‑er’s budget to pay for future losses. The use of funded reserves requires a strong commitment from the organi‑zation’s senior management and policy board not to use these seemingly “idle funds” for other projects. With the help of actuary tables, the risk management commiAee can demonstrate the amount needed for future losses. Funded reserves need substantial assets far in advance of the time benefits are to be paid.
Borrowing. When an organization does not have sufficient assets to pay for losses, it can borrow money from other sources. It is oGen difficult to borrow from an external source to respond to a loss, and so this strat‑egy is limited, and generally not recommended in the industry. It also may be necessary for a public entity to levy taxes or float a bond, if a damage award is in the millions of dollars.
Self‑insurance and joint pooling. Most states in their tort claims acts authorize municipalities and schools to not only self‑insure but also participate in joint pooling. Most joint pooling is done through an intergovernmen‑tal contractual agency that self‑funds predetermined levels of loss with provision for catastrophic losses through the purchase of excess and reinsurance and, if necessary, issuance of bonds. The way a joint pool works is that there is a formula for the annual base membership contribution. Then, at the end of the year, there is a debit or credit applied to this annual base contribution based upon how the individual member’s losses compare to the group as a whole.
An example is the Illinois Park District Risk Management Agency (PDRMA), which has a risk man‑agement program providing broad liability coverage and workers compensation coverage for employers. The organization also provides extensive loss control, safety information and services, and staff risk manage‑ment training and education. Many states offer similar programs for municipal park and recreation agencies through their state municipal league.
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Transfer of financial risk to a third party. It is com‑mon to divide transfer techniques into two categories: 1) transfers to parties that are not commercial insurance companies, but are in some way a party to the provision of services; and 2) transfers to commercial insurance companies.
Contractual transfers: releases and indemnification agreements. A release is an aGer‑the‑accident contract. It ordinarily establishes that a participant is giving up an existing claim, and usually is used in out‑of court seAlements. Releases are intended to bring closure to disputes between participants and providers.
An indemnification clause, also known as a hold‑harmless clause or agreement, provides that one party (the indemnitor) agrees to assume the liability of a second party (the indemnitee). Indemnification clauses may be added to various contracts, e.g., leases, permits, concession agreements, construction contracts. In addi‑tion to indemnification language, the entity should require proof of insurance, with adequate liability limits, and include the requirement that the entity be named as an additional insured on the other party’s insurance policy.
Commercial insurance companies. Liability insur‑ance is a cornerstone of most park and recreation risk management programs. Through the purchase of insur‑ance, a provider transfers to the insurance company the financial risks it cannot afford for a premium it can afford. The provider pays the insurer a known amount at the start of the policy year, in exchange for the prom‑ise that the insurer will pay losses of potentially much larger amounts for the entire policy year. While the premiums may be lower than the losses paid in certain years, they will usually be higher than the losses in an average year. Over an extended time frame, purchasing insurance is generally the most costly risk management strategy. However, because of the reliability of com‑mercial insurance, it remains one of the most popular techniques for transferring financial risk of loss.
Insurance does not protect the provider from an injury or damage occurring, nor does it protect against personal anxiety or professional embarrass‑ment. It only protects the insured from the financial losses arising from the covered risk. It must be noted, though, that the amount that an insurance company will pay is only to the limits of the insurance coverage. For example, if a court awards $5 million and the coverage is only $2 million, the insurance company pays only $2 million.
Determining the insurance needs for a park and recreation organization is a complex task that can be made easier by the risk management program. Some risks are so small—low frequency and low sever‑ity—that the organization may choose not to insure them, while others may be so large that insurance or
avoidance is the only reasonable strategy for the pro‑vider. Insurance adequacy should be reviewed annually with an insurance agent, broker, or risk management consultant.
While most entities include their employees and volunteers, when acting within the scope of their responsibilities, within their insurance policy, some professionals do take out their own personal insurance coverage. This second policy provides extra protection for the employee in the event that the employer’s policy denies coverage or is not enough to cover the loss.
Claims management. The claims management process is a critical loss control element of risk management. Determining what and how much to pay for a claim may appear to be reactive; however, successful claims management is based on a risk manager’s proactive initiatives. Education is key. Managers and employees alike should know in advance what to do in response to property loss, employee injury, or patron accident on park or recreation property. Education regarding prompt reporting and fact gathering are essential.
Organizations that successfully manage risk publish information at each reporting location on how to report an accident and what is required to start the claims process and they then monitor for compliance. A proactive public entity should require all claims (and potential claims) be reported within 24 hours. This can be accomplished via the Intranet, fax, or phone report‑ing. Late reporting can prejudice the fact‑gathering process, and ultimately cost the entity more money, diminish employee confidence, and create negative publicity. Regardless of whether claims are adminis‑tered internally, through a third party administrator, or through an insurance company claim department, prompt reporting and communication with an injured worker or entity patron can assist in avoiding distrust and create an environment in which facts can be gath‑ered quickly and hasten the claim disposition in a timely manner.
Successful claims management programs require close monitoring and periodic audits to measure the performance against pre‑determined claim manage‑ment standards and performance goals. In addition to claim reporting performance, claim audits should offer the opportunity for identifying weaknesses in the program, such as inadequate investigations, improper payment, over‑payment, poor reserving, high ratio of lawsuits to claims, failure to pursue recovery when appropriate, and sloppy file documentation. Audits should be performed at least annually and spot‑checked throughout the year.
Many organizations adopt an administrative policy to limit exposure to lawsuits by seAling claims rather than litigating. Many insurance companies also
594 Risk Management
take this approach—i.e., seAle a claim, even though there may be technically no liability—because it is more economical. It takes a great deal of money to prepare materials, investigate, and pay aAorneys’ fees—in other words, to litigate. For small claims, it is usually much less expensive to seAle. There is also the publicity that goes with a trial, which usually is unfavorable to the school, municipality, nonprofit association, or private for‑profit enterprise. On the other side, however, is the psychological trauma of the employee, in an injury suit, of having a seAlement inferring negligence and guilt when there is none. And, some individuals, knowing an entity is seAlement‑prone, will file just to get money. The policies established for claims seAlement are very important to discouraging unfounded claims, protect‑ing the morale of the employees, and providing the best financial benefit for the organization.
Somewhat similar to claims seAlement, but much more formalized and set forth in the initial agreement or contract, is arbitration, sometimes referred to as alternative dispute resolution (ADR). A provision in a lease, a contract for services, or a participant form may state that for any dispute, including an injury claim, the parties will go to arbitration rather than bring a lawsuit. In arbitration, each party presents its “case,” and a third person arbitrates or determines the rights of each. Arbitration may be legally binding. This should be distinguished from mediation, which is non‑binding effort by a third person to negotiate between the two parties. There are firms that engage in the business of arbitration, and there is a professional organization, the American Arbitration Association.
Phase III: The Risk Management Plan
Phases I and II provide the background analysis nec‑essary to create a risk management plan that can be integrated into the operation of a park and recreation agency. There are three aspects to this third phase:
adoption and facilitation;creating a manual of policies and procedures; andmonitoring the performance of the plan.
Adoption and Facilitation
The policy body of the entity adopts the underlying policies on which the risk management plan is based, to integrate the plan into the operation. These policies especially include the financial transfer of insurance or other strategies, and the risk control transfers related to leases and rental agreements, independent contractors, and waivers. The organization must commit financial resources. Senior management must accept the plan and support employee effort to facilitate it. Budgeting
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and risk management are flip sides of the same coin. Funding to undertake the risk management process, along with financial resources to purchase insurance, fund contingencies, or to pay damage claims must be included in the provider’s annual budget.
The implementation of the plan depends on man‑agement and staff. To be successful, employees must accept the plan, and feel that they are truly a part of the risk management team with opportunity for valued input. For this reason, the management team should have a process for staff input and develop a training and education program for employees. Employees should be involved in the goals and objectives of the plan.
The risk management plan should involve active interaction among employees at all levels, including with administrators or supervisors. This interaction is essential, because all facets of the operation must be included, and the line‑level employees have insights to risks and are critical to implementation of risk man‑agement procedures. Employees must be assured of their importance to successful risk management, and understand the operational procedures.
There must be commitment by both management and employees. Just as it is desirable to have the policy board involved in the establishment of risk management policies, so must employees be involved in determina‑tion of desirable practices in implementing policies. Particularly in medium‑ to large‑sized agencies, an employee risk management commi+ee is highly desirable to augment the risk manager. The commiAee should:
continuously monitor the risk management program, recommending changes;review operating safety manuals and emerg‑ing plans;foster a safety‑conscious attitude among employees, and encourage participation in staff training including first aid;review accidents and claims, analyzing the nature, possible action to ameliorate, and the cost incurred;make periodic inspections/tours of programs and premises; andannually present the risk management opera‑tional plan results to management and employ‑ees summarizing the risk identification and response efforts.
In especially large operations, there might be prac‑tices to pinpoint problem areas, recommend changes, and project trends and possible future losses. It must be made very clear to employees that the practices requested and recommended are not only to provide a safe program so participants will not be injured, but also are for their own well‑being.
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Risk of Management 595
A risk management information system maintains data for risk management and keeps it available in case of lawsuits. Responsibility is established for input of the information/documents, for maintaining the system, and for determining the method and format of record keeping, including how long it should be kept. The records are kept at least until the statute of limitations has run out. This system should include such docu‑ments as:
registration identification information;accident forms;health forms, if appropriate;participation forms and waivers;rental agreements and leases;program data and documents;operations information; andloss analysis reports.
The Nonprofit Computer Assisted Risk Evaluation System (Nonprofit CARES™) is a powerful Web‑based tool designed to help nonprofit organizations protect themselves. Information can be found at www.non‑profitrisk.org.
Policies and
Procedures Manual
It is one thing to adopt policies based on Phases I and II, but just what does that mean to the employees, and just what is it that they are to do to manage the risks? It is one thing to say that reduction is the strategy to be used to control risks, but how are the risks to be pre‑vented or reduced in frequency and severity? For this, every park and recreation program needs a policies and procedures manual, which functions as the agency’s operational plan. The manual systematically sets forth procedures for doing so. OGen, an insurance company will have specific procedures that must be followed for insurance to be provided on a specific activity or facility. The public entities may belong to a risk management authority, either specific to parks and recreation, such as the Park District Risk Management Agency (Illinois), or one related to the parent organization, for example, the Michigan Risk Management Authority for municipali‑ties in that state. Nonprofit entities have access to the national Nonprofit Risk Management Center.
The accreditation standards of the American Camping Association for camps, and of the Association for Experiential Education for adventure or challenge programs, provide some specific procedures for con‑ducting these programs. However, most accreditation standards are not so detailed. There are a considerable number of manuals and books on specific services, such as fitness and health centers, aquatics, and golf courses.
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The professional personnel in charge of conducting these services should know of these resources and be able to develop the section of the manual related to their service. Maintenance and security staff can help develop proce‑dures for reducing the frequency and severity of risks. (See Chapter 12, Physical Resource Management, and Chapter 22, Law Enforcement and Security).
Risk management is not only preventing both staff and participant injuries, but also incorporating practices related to employees, business operations, and property. Some call the manual a “safety manual,” but it is much more than that. The manual lists the operating procedures for carrying out risk management policies. And as such, all administrative and supervisory personnel should have a copy and other employees need the sec‑tions pertinent to their responsibilities.
Specific operational procedures are an important element in a risk management plan. Guidelines for implementing the procedures for risk management approaches can be collected into a risk management manual that provides an authoritative guide and is immediately available for reference to everyone. The manual can cover such operational information as what automobile insurance coverage the organization has and, if a car is rented, what insurance should be purchased; periodic inspections regarding risk potentials; supervi‑sion system, emergency action plans; the accident and incident reporting system; and many other aspects.
Particular aAention should be given to crisis plans and procedures for such large‑scale natural disasters as earthquakes, tornadoes, hurricanes, forest fires, and floods. Evacuation procedures, inventory and location of equipment and materials, displacement plans for facility residents and activities, and psychological aid for staff affected by a crisis should be included. Plans also should be prepared for civil disturbances, for emer‑gency care at special events with a large number of par‑ticipants and/or spectators, and for ongoing activities in the park and recreation facilities. Special cooperative arrangements should be made with public departments and agencies, private contractors, and community organizations. (See Compendium 21‑7 for a crisis plan manual, Compendium 21‑8 for sample crisis plan, and Compendium 23‑9 for a crisis communications plan.)
Of course, an organization must focus the manual on the services, programs, facilities, and areas under its jurisdiction or control. However, all manuals share common elements, and Exhibit 21.7 is a generic table of contents to be adapted in accord with the nature of the provider and the programs/services/facilities it offers.
Monitoring Performance
Once the plan is adopted and put into practice, it should not be forgoAen. The plan should be assessed
596 Risk Management
at least annually, to measure progress toward the purposes, goals, and objectives. (See Exhibit 21.2.) The performance of risk management programs is oGen assessed by seAing goals at the beginning of the year and comparing them with the outcomes at the end of the year. When risk management outcomes take lon‑ger than a year to assess, incremental measures may help determine whether the program is on track to meet expectations. Risk management efforts should be judged by a combination of procedural and results goals and objectives.
Procedural Goals and Objectives
These are measures of actions taken to achieve program goals, without considering the actual results. For exam‑ple, a procedural goal might be that “all playground equipment will be inspected quarterly,” to reduce the risk of injury from defective equipment. This means that the standard is met if the equipment is inspected, even if injury is not reduced. Because these goals and objectives focus on the procedure, what people have been doing, rather than on a specific outcome of these efforts, they oGen neglect actual cost savings for the organization.
Exhibit 21.7
Generic Contents of a Risk Management Manual
Organizational structure The team (who’s in charge; role of employees)
Goals and objectives Priority risks and prioritizing risks Policies related to contracts LicensesLeasesInsurancePermitsRentals
Conduct of programs and services Program and facility standards for conduct (e.g., playground, aquatics, fitness) Type of participants, ADA Special events (security, liquor, etc.) Warnings (importance and role) Medical/health exams Joint sponsorships Use of waivers Participant forms (registration, entry, agreements to participate, photo permissions)
Human resources policies Occupational safety standards Hiring and discharge Sexual harassment Violence in the workplace Sexual and physical abuse of children, elderly, disabled
Supervisory functions The supervisory plan (who supervises what, when; by function and area, not person in charge)WriAen management of behaviorDiscipline, crowd control for large eventsViolence in sport Use of drugs Intoxicated participants, spectators, visitors Rules and regulations (establish, communicate, enforce) General behavior use
continued
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Exhibit 21.7
Generic Contents of a Risk Management Manual (continued)Emergency plans and procedures Personal injury of participants, spectators, users, visitors Rendering of first aid (kits, supplies, personnel) Hierarchy of service (person in charge, calling 911 or other transport)Medical services policies Accident reports and disposition
Emergency plans and procedures Large‑scale natural disasters (earthquakes, tornadoes, hurricanes, forest fires, and floods) Inventory and location of equipment and materials Evacuation procedures Displacement plans for facility residents and activities Psychological aid for staff affected by emergency Civil disturbances, bomb threats, fires, and power failures
Emergency plans and procedures (continued)Special events with a large number of participants and/or spectators Ongoing activity in the parks and recreational facilities Runaway children Wandering seniors Releasing minors to proper parent/guardian Crisis management How to deal with other participants, with the families of participants, with the clientele from a marketing (confidence in) perspective Dealing with the lawyers on both sides, and with other staff Special cooperative arrangements with other public departments and agencies, private contractors, and community organizations.
Protection against criminal acts and security Safety of persons and property in the parks and other areas Security in buildings Law enforcement for special facilities and areas and large public events
Transportation and vehicles Travel regulations: who can drive, checking licenses, for what can vehicle be used Driver safety Vehicle maintenance Traffic and pedestrian circulation paAerns
Equipment Purchase and/or rental Authorization to use Proper fiAing to user Repair
Environmental conditions (undeveloped natural environment) Dispersed recreation safety (e.g., mountain bike trails, cross country ski trails)Hazards and warnings
Developed areas and facilities Inspection system Lighting Signage Sanitation Reporting premise defects
598 Risk Management
Results Goals and Objectives
These measures usually focus on a decrease in the severity or frequency of accidents. For example, an objective might be: “playground accidents requiring first‑aid treatment shall be reduced by 10 percent over the calendar year.” A limitation of this approach is that it tends to judge a program without considering the randomness of many accidents. Thus, the causes of the accidents are not addressed. Further, results goals and objectives should be used with the understanding that a “bad year” may not be entirely the risk management team’s responsibility, any more than a “good year” is entirely to their credit. Results goals and objectives are more reliable when used over a longer period of time, during which trends can be documented.
When goals and objectives have been achieved, they may need to be adjusted upward to encourage continued improvement. When they are not met, the reasons for the shortfall must be determined. It is natu‑ral to think that those responsible for meeting the goals and objectives may need to improve their performance. But it is possible that unrealistic goals and objectives may need to be reduced to a more aAainable level or the tools needed to reach the goals and objectives may need to be provided to the staff. (See Compendium 21‑10 for Elmhurst Safety Forms, Compendium 21‑11 for a sam‑ple employee safety manual, 21‑12 for an Emergency Operations Manual, and 21‑13 for Emergency Action Plan of Blue Valley Recreation.)
Risk of Management 599
Resources
American Camping Association. (2008, periodic revi‑sions). Accreditation standards for camp pro‑grams and services. Martinsville, IN: American Camping Association.
Berlonghi, A. (2001). The special event risk management manual (Rev. ed.). Dana Point, CA: Alexander Berlonghi.
Borkowski, R. P. (1998). The school sports safety handbook. Horsham, PA: LRP Publication.
Christiansen, M., & Vogelsong, H. (Eds.) (1996). Play it safe: An anthology of playground safety (2nd ed.). Ashburn, VA: National Recreation and Park Association (see Chapter 9 resources for further information on playgrounds).
Coalition of Americans to Protect Sport (CAPS). (1998). Sports injury risk management and the keys to safety (2nd ed.). North Palm Beach, FL: CAPS.
CoAen, D. J., & CoAen, M. B. (1997). Legal aspects of waiv‑ers in sport, recreation & fitness activities. Canton, OH: PRC Publishing.
Coutellier, C. (1993). Management of risks and emergencies, a workbook for administrators (Rev. ed.). Kansas City, MO: Camp Fire.
DeCoster, J. V. (n.d.). Risk management for golf. Canton, MO: RIMAGO Co.
Garvey, D., Leemon, D., Williamson, J., & Zimmermann, W. (1999). Manual of accreditation standards for adventure programs (3rd ed.). Boulder, CO: Association for Experiential Education.
Head, G. (Ed.) (1991). Essentials of risk management (Vols. 1–2). (2nd ed.). Malvern, PA: Insurance Institute of America.
Head, G. (Ed.) (1995). Essentials of risk control (Vols. 1–2). (3rd ed.). Malvern, PA: Insurance Institute of America.
Head, G. (Ed.) (1996). Essentials of risk financing (Vols. 1–2). (3rd ed.). Malvern, PA: Insurance Institute of America.
Jackson, P. M., White, L. T., & Herman, M. L. (1997). Mission accomplished: A practical guide to risk man‑
agement for nonprofits. Washington, DC: Nonprofit Risk Management Center.
Kaiser, R. (1987). Liability and law in recreation, parks and sports. Englewood Cliffs, NJ: Prentice Hall, Inc.
Mack, M., et al. (1998, April). Playground injuries in the 90s. Parks & Recreation Magazine, 89–95.
Minnesota Office of Volunteer Services. (1992). Planning it safe: How to control liability and risk in volunteer programs. St. Paul, MN: Minnesota Office on Volunteer Services, Dept. of Administration, State of Minnesota.
Morrison, D. (1989). Risk management and loss control manual for local government. Washington, DC: Local Government Inst.
Nonprofit Risk Management Center. (1996). State liability laws for charitable organizations and volun‑teers (3rd ed.). Washington, DC: Nonprofit Risk Management Center.
Peterson, J., & Hronek, B. B. (1997). Risk management for park, recreation, and leisure services (3rd ed.). Champaign, IL: Sagamore Publishing, Inc.
Practical risk management. Alameda, CA: Practical Risk Management. (Manual with quarterly updates).
Public Risk Management Association. (1997). Public sec‑tor risk management. Arlington, VA: Author.
Riskfacts. Washington, DC: Nonprofit Risk Manage‑ment Center. (A 3‑ring notebook , documents #1–21 issued 1997, #22–31 issued 1998).
Risk management, a guide for nonprofits (1987). Washington, DC: Prepared for United Way by Public Risk and Insurance Management Association.
U.S. Consumer Product Safety Commission (1997). Handbook for public playground safety. Washington, DC: CPSC.
van der Smissen, B. (1990). Legal liability and risk manage‑ment for public and private entities. Cincinnati, OH: Anderson Publishing Co.
Williamson, J. E., & Gass, M. (assemblers) (1999). Manual of accreditation standards for adventure programs (3rd ed.). Boulder, CO: Association for Experiential Education.
600 Risk Management
Authors, Consultants, and Contributors
Ronald A. Kaiser is a professor in the Department of Recreation, Park and Tourism Sciences at Texas A&M University and an aAorney. He has taught graduate and undergraduate courses on park, recreation, and sports law and risk management at a number of universities. He has authored a number of books, journal articles, technical reports and popular publications dealing with park and natural resource law. Kaiser is the founding editor of the Entertainment & Sports Law Journal, a publication of the State Bar of Texas.
Thomas R. Cole joined Cleveland Metroparks in April 1998 as the Risk Manager, aGer having served the 15 years as the Director of Risk Management for CVS Drugstore and 25 years in the insurance industry. He is responsible for property/liability insurance purchases and self‑insured program administration, administration of liability claims and litigation against Cleveland Metroparks, administration of the Park District’s retrospectively rated workers compensa‑tion program, assessment of risk exposures and development of risk‑financing strategies, review insurance contract provisions for concession, license and other agreements, and consults with and assists all Park District divisions on safety issues and regulatory compliance standards.
Previous Chapter Author
Ken Robinson, risk manager, City of Cleveland Metro Parks, practitioner for the first and second editions.
Contributors
Special thanks to the following reviewers, who took time from their busy schedules to review the manuscript and offer constructive comments and reviews.
Arthur Graham, SUNY College at BrockportBeAy Kutska, manager, Park District Risk Management Agency (IL)Robert Lee Jr., Pennsylvania State UniversityDoug Kennedy, Virginia Wesleyan CollegeJames Peterson, Indiana UniversityDean Zoerink, Western Illinois University