Water recreation facilities offer visitors the exciting action-packed experience of riding gravity-defying slides, swimming in wave pools, and running around silly fountains squirting and dumping water on visitors. Unfortunately, it’s not all fun and games – sometimes visitors get hurt.
Of course, those who participate in any form of recreation that involves physical activity risk being injured. When people are injured at a water recreation facility (pool, splash pad, waterpark, municipal lake, etc.), they often file a liability claim or attempt to sue the facility on the grounds that the activity or premises was not reasonably safe. The law does not impose absolute liability on the operator of a water recreation facility or any recreational facility whenever a customer is injured. However, the operator IS required to take reasonable measures (emphasis on “reasonable”) to make an activity safe. The law does recognize that people who swim, jump, and climb risk sprains, broken bones, heart attacks, and even death, and that some of the risks cannot be eliminated by reasonable measures.
So, what are the reasonable steps an operator of a water recreation facility can take to avoid or reduce the risk of customer injury? What are the practices that will appear careless or unreasonable in a courtroom? What actions will demonstrate to a jury that the operator cares about injury to its customers, has taken reasonable steps to avoid or minimize the risk of injury, and should not be blamed when a customer is injured? The following “best practices” can help water recreation operators avoid liability:
Training, training, training. Nothing looks worse to a jury than a young, inexperienced, seasonally employed lifeguard or operator who has little to no training in preparing customers for a potentially hazardous activity, or recognizing problems, or taking action when problems arise. Even worse is someone who learned their job from watching another casually trained, inexperienced employee. All workers should be trained at the beginning of their employment in the safe operating procedures for all activities that can cause injury. They should specifically be trained regarding activities that could be deemed hazardous that they are assigned to supervise. They need to be trained on what to do if an injury occurs and how to get quick medical assistance. It might be a good idea to hire an outside company certified in the safe operation of water recreation facilities. It could avoid the argument the operator is not qualified (by credentials, training, or experience) to train its staff in safety procedures.
Check and double check. It looks good when a supervisor, manager, or loss prevention person periodically monitors operations, both to ensure that staff are doing what they have been trained to do and are appropriately positioned at their post, and are not doing what they should not be doing, like using their phone or visiting with people when they are supposed to be observing the environment. While there is no hard and fast rule on how often a supervisor should do a walk-around, unscheduled visit several times a day/week, depending on the facility, is preferable. Periodic monitoring also reinforces training and informs management what messages are not getting through to staff and customers concerning safety.
Keep detailed records. Witnesses often forget or have different recollections of how an accident happened, who said or did what, and other details. Having a supervisor or manager identify, interview, and record the names and experiences of eyewitnesses is critical to recreating the incident at a review or court case later. The same holds true with respect to the injured person: Where possible, it is important to get their account of what happened in case the story changes later.
Incident reports are always evidence in a lawsuit. The objective of the report is not to have the person who creates it “play detective” and form opinions about who is at fault or how the incident could have been avoided, the goal is to record the identity and factual reports of eyewitnesses and any information provided by the injured person to the extent they are well enough to provide it. The incident report should be completed by a manager, supervisor, or loss control personnel, not an entry-level employee.
Documenting the scene with photographs, taken as soon as possible after the incident are critical. Photographs serve as additional evidence. If the condition that is believed to have caused the accident could change (i.e. the water level could return to normal or a piece of equipment could be replaced), it should be photographed soon after the incident. Digital photos cost nothing, so take a lot of them. Surveillance video of an incident should also be preserved.
Routine facility equipment inspections and work orders should be kept on file. If the injured person claims they were hurt because something malfunctioned, the operation or attraction (diving board, slide, etc.) should be checked as soon as possible after the incident by a qualified repair person. If the injured person or an employee reports something broke and caused the incident, that part, broken or not, must be taken out of service immediately and preserved for later inspection. Often, a maintenance person will throw away a broken part that may later be used in a litigated claim against the municipality. If a defendant disposes of evidence without realizing it may be needed in a court case, the plaintiff’s lawyer can suggest to the jury the defendant was trying to hide the truth.
Use liability waivers. Although not enforceable in some states and enforceable in limited circumstances in others, liability waivers can be a useful tool, but they must be worded as clearly and concisely as possible. Many people do not know what a “release” or “waiver” is or have only a basic understanding of what they mean. Courts will determine whether the average person would have been able to understand that by signing the waiver they have given up the right to sue. If the average employee does not understand the language of the waiver, chances are the customer will not understand it either. Thus, a judge is likely to dismiss the waiver protection on those grounds. Use plain language and simple concepts in your waiver agreements.
Accidents happen, and with them come liability claims and possible lawsuits. Most courts are fair to operators, and while they may feel sympathy for an injured person, they are less likely to decide a case against a recreational facility if they believe the facility took reasonable steps to avoid or reduce the risk of injury. Most people recognize that risk is a part of life. To that end, every water recreation facility must take reasonable steps to avoid customer injury and liability through staff training, monitoring, inspecting, and documentation. If you have any questions about this article, contact Kip Prichard, OMAG Risk Management Specialist kprichard@omag.org or (800) 234-9461.
