A Risk Management Plan Starts with a Facility Audit
John T. Wolohan
As the owner or operator of a recreation facility, you hope that when patrons open the front door and move from the lobby to the locker room, then out to the fitness center or the pool, they see the best that your facility has to offer.
If you're at all concerned about the potential liability the center could face if someone is injured while using your facility, however, it is up to you to see things in a more negative light. Viewing your facility critically is the first step in the development of a risk management plan.
Since not all organizations are the same, there is no one-size-fits-all risk management plan. In fact, each organization must specifically tailor the plan in order to anticipate the particular risks it might face. That said, there are three steps that all should follow:
The first stop on your tour is the locker room. As you walk among the banks of lockers, taking note of some of the more excluded aisles, you make a note to reevaluate your locker room security. One of the most common areas of liability involving locker rooms is lack of supervision. For example, in Velez v. Freeport Union Free School District [292 A.D.2d 595; 740 N.Y.S.2d 364 (2002 N.Y. App)], a student was injured when a fellow student assaulted him in the locker room. Since a portion of the people using rec centers are minors, you want to make sure that your facility is properly supervised and that it is safe for everyone using it.
Farther into the locker room, you notice that the walkway adjacent to the shower room, whether due to the accumulation of water or soap, could be in a potentially dangerous condition. Anytime there is water on the floor, there will be the risk of people slipping and falling. However, it is the additional presence of soap, as the court noted in O'Neil v. Holiday Health & Fitness Centers of New York Inc. [5 A.D.3d 1009 (2004 N.Y. App. Div.)], that could elevate the shower area floor to an unreasonably dangerous condition. In order to mitigate the danger, you make a note to check the shower drainage.
Walking past the showers and out onto the pool deck, you quickly notice the presence of minor algae growth. You make a note to have the deck cleaned, and rightly so. In Capri v. L.A. Fitness [136 Cal. App. 4th 1078; 39 Cal. Rptr. 3d 425 (2006)], the court ruled that while those who utilize a swimming pool assume the risk of slipping and falling on the deck, the pool owner must not increase the danger, and therefore has a duty to keep the deck clean.
As you walk around the pool deck, you take note of a hose running from the wall to a hydraulic chairlift, which is used to help elderly and disabled members get in and out of the pool. To prevent people from tripping on the hose, the pool manager has covered it with a rubber mat, creating a bump about an inch and a half high. Even though the manager was trying to reduce the risk of injury, you realize that since everyone getting in or out of the pool has to step over the hose to get to the locker room, the mat may actually increase the potential risk of someone tripping — as it did in Mower v. City of Rialto [2005 Cal. App. LEXIS 11653]. As long as you're taking detailed notes, write down that you may want to find out whether there are alternative methods to get water to the chairlift.
Next, you examine the pool's diving board and discover that the board's fulcrum might be improperly positioned. If one side of the board were unsupported, a diver could be propelled upward in an unstable manner and in an unexpected direction. That's what happened in Howard v. East Texas Baptist University [122 S.W.3d 407 (2003 Tex. App.)]. In order to protect anyone who might use the board, tell the lifeguard to close down the diving area until he has had a chance to correct the problem.
Before leaving the pool area, you also notice that the lifeguard on duty appears to be a bit distracted. The sight concerns you, and for good reason. In Atkins v. Swimwest Family Fitness Center [691 N.W.2d 334 (Wisc. 2005)], the court invalidated a waiver signed by a member who drowned while using the pool. You make a point to meet with all the lifeguards to discuss their duties and to ensure that they all know how to contact emergency care if needed. You also note that the pool should have more emergency warnings and information posted for bathers.
Moving on from the facility's wet areas, you enter the fitness center, where the portion devoted to strength training is large enough to accommodate both free weights and selectorized equipment. As you walk around the free-weight area, you notice that one of the members is lifting weights without a spotter. Sensing that this is an injury waiting to happen — in fact, weights falling on a user's head was at the crux of Ebuzoeme v. City University of New York [10 Misc. 3d 1079A; 814 N.Y.S.2d 890 (2005)] — you instruct your employee to spot the member. To help reduce the potential risks to members, you make a note to have all instructions on proper lifting techniques posted near the weights and a warning posted on the walls requiring a spotter anytime certain lifts are attempted.
Moving into the area containing weight machines, you notice that on one piece of equipment a cable connecting the weight stack to the handle looks defective. As you inspect the cable, you wonder what might happen if it broke in the middle of an exercise. That's what happened in Flores v. 24 Hour Fitness [2005 Cal. App. Unpub. LEXIS 207], so you put a sign on the piece of equipment warning members not to use it and decide that you'll have the cables on all machines checked and replaced if any are found to be defective.
Looking around, you also see that some of the pins used to engage the desired number of weight plates are not properly locked into the equipment. This is reminiscent of an injury a club member suffered when she attempted to exit a squat machine without properly locking the weights. In that case, Morrill v. Cedar Valley Pro Fitness & Martial Arts Club [(2006 Iowa App. LEXIS 130)], the member was injured when she tried to exit the machine and the weights came down and fractured her left tibia and fibula. To help ensure that such an injury doesn't occur at your center, make a note to have all instructors keep an eye on the machines and their users to make sure that all weight pins are properly locked. In addition, post signs around the room reminding members not to remove safety pegs from the machines — among other precautionary warnings.
Stull v. Corrigan Racquetball Club [17 Mass. L. Rep. 388 (2004 Mass.)], in which a member was injured when the bar of the weight equipment he was holding onto detached from the spring clip, causing the member to rapidly pull the bar down onto his head, provides further incentive for due diligence in the weight area. You vow to reiterate to your staff the importance of performing daily, weekly and monthly inspections. By documenting periodic inspections on all the equipment in the room, you should be able to prevent most, if not all, injuries due to defective or worn-out equipment, as well as protect yourself in the event of a lawsuit.
Upon entering the cardiovascular area, one of the first things you notice is that instead of facing the wall or window, the treadmills face the center of the room. While not necessarily a problem for you so far, it was for the principals in Xu v. Vital Power Fitness Center [257 Mich. App. 263; 668 N.W.2d 166 (2003)], a case involving a club member who fell while jogging on a treadmill and was thrown into a wall that stood just 2 1/2 feet behind him. You move reconfiguring the cardio layout to the top of your priority list, ensuring adequate safety clearance around each piece of equipment. If moving the treadmills isn't a desirable option, padding could be added to the low portions of nearby walls.
Before heading to the outdoor fields, you cross the lobby to the impressive climbing wall, which has proved to be a very popular component in the two years you've had it. During that time, however, the number of lawsuits involving climbing walls has grown significantly, with suits reaching jurisdictions from Colorado [Pollock v. Highlands Ranch Community Association Inc.; 2006 Colo. App. LEXIS 929] to New York [Lemoine v. Cornell University; 2 A.D.3d 1017; 769 N.Y.S.2d 313 (2003)]. Many of the cases have hinged on negligent supervision, so you make a note to double-check that all climbing instructors have the proper training to supervise the activity. While you're at it, take a look at the waiver you've been using and thoroughly check its wording. You also decide that every climber must now climb with a partner. If the wall is well supervised, all users take part in a climbing wall orientation and everyone involved follows the center's detailed climbing usage rules, you should be able to cut down on almost all injuries — and litigation.
If your rec center is like most state-of-the-art facilities, it features built-in security for the climbing wall — a closed room with a door that can be locked (whether made of glass walls or standard walls with windows), or at the very least stanchions with chains and signage making it clear that the wall may not be used without supervision. And so you feel confident that anyone using the wall unsupervised does so at his or her own risk, and not yours.
All walls are specified with some sort of surrounding safety surface, but it pays to check what you have and ensure it can adequately cushion a falling climber. A case settled in Missouri paid $700,000 to the parents of a young woman who died after falling 25 feet — so it can happen. If your surface is a rolled good or made up of mats, it might be wise to check how the different pieces are laid out and/or attached to each other. In Ledgends Inc. v. Kerr [91 P.3d 960 (2004 Alas)], a climber was awarded $150,000 after she dropped from a climbing wall and landed on the tape that overlaid the seams between mats. When she landed, her foot penetrated one of the seams, causing her to suffer a fracture of her right knee.
Outside, it's the same drill. While walking around the adjacent soccer field, you notice what looks like a small animal hole. In Nebraska, in Range v. Abbott Sports Complex [691 N.W.2d 525 (Neb. 2005)], a soccer player running on the field stepped in a hole and ruptured his patellar tendon, and then successfully sued the center. If a field has any dangerous conditions that the owner should have noticed when properly inspected, it is the owner's duty to correct any defects it discovers. You make a note to have the hole filled as soon as possible — certainly before another game is played on the field.
After checking the field surface, you take a quick look at the bleachers. In particular, you are trying to see if the open spaces between seats, floorboards and guardrails are large enough for someone to fall through, whether the hand rails are secure [Brewer v. City of Wyandotte; 2006 Mich. App. LEXIS 613], or whether there are any supports or protrusions that might cause an injury. This last circumstance was the basis for Griem v. Town of Walpole [Civil Action No. 04-00726 (Aug. 16, 2006)], in which a Massachusetts court allowed a negligence case to continue after a 10-year-old boy, while playing with his friends under the bleachers, crashed into an angled support beam and suffered a severe neck injury.
Scared yet? Ready to close the facility? Before you begin to think you'll never be able to protect yourself financially, you should remember that the courts recognize that it is impossible to eliminate every possible risk associated with exercise and recreation. Individuals who participate in these activities assume all inherent risks; therefore, the facility will only be liable when it creates an unreasonably dangerous environment or fails to correct a defect that should have been discovered.
Simply walking around the facility periodically and conducting an extensive risk evaluation will help you spot potential danger areas and diminish your exposure to liability. Establishing a system of inspection, including documenting the dates of inspection, any potential problem areas and all necessary corrective measures, also can help dramatically cut down on a facility's potential liability.
Beyond taking the grand tour, three additional steps can help reduce your exposure:
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