Promises, Claims and Rules Can Increase Liability
Doyice J. Cotten
The case for Helping Hands Inc. was further complicated by the shelter's personnel manual on policy and procedure. The manual stated that staff responsibilities included that they 1) must ensure client safety, 2) must supervise clients at all times, and 3) are expected to take breaks only when it will not interfere with the daily routine of the children, supervision or activities of the children. The listing of these specific, far-reaching duties resulted in an appellate court ruling (overturned later) against the shelter for failing to supervise at all times (Cunningham vs. Helping Hands Inc., 575 SE2d 549 [S.C. 2003]).
MOST BUSINESSES AND organizations make promises and claims to their clients and potential clients, as well as establish rules for their personnel. Promises and claims are frequently made in advertisements, flyers and promotional materials. Rules or regulations are found in personnel handbooks and signage.
These are necessary components of running a business. However, care must be taken in the wording of promises and claims, and in the selection of material included in a personnel handbook, because overly broad claims and very specific regulations can become the basis of a lawsuit. Violation of internal policies can be strong evidence of a breach of duty and of negligence.
Promises and claims should be worded in such a way that they are general in nature. Rules and regulations should be worded in such a way as to give employees flexibility in their actions. Both claims and regulations should allow for subjectivity in standards of achievement. Some guidelines to follow include the following:
Make certain that the claims and promises in your promotional materials can be achieved. Promises such as "Your child will be supervised at all times," can be interpreted as part of a contract. It would be much safer to say, "Our supervisors are well-trained and qualified." Then be certain that they are. Claims such as "All clients will increase their strength by 50 percent within three months" or, "We guarantee that you will lose weight," may leave you open to litigation. Much safer claims would be, "Many of our clients increase their fitness and lose weight" or, "Lose weight and get fit exercising on modern equipment and in pleasant surroundings."
Have operational rules and regulations to govern the behavior of your employees. Be certain a rule is doable. The first Helping Hands rule above, "Must ensure client safety," is not possible. "Take steps that will promote client safety" or "Always be safety-conscious" would be better policies. Helping Hands' policy that says employees "Must supervise clients at all times" sets a very high standard that may be impossible to meet. A better rule might be, "Always provide the best supervision possible."
Have rules that govern the behavior of your clients. Three guidelines are suggested:
1. Decide if the rule is important. If it is not, do not have the rule.
2. Communicate all rules to your clients. Announce it, have it in membership information and post it.
3. Enforce the rule. If you are not going to enforce it, do not have it. If you have a safety rule and do not enforce it, a violation of the rule leading to injury could leave you liable.
The South Carolina Supreme Court remanded the above case to trial to determine, among other things, if the organization's staff was negligent. It is apparent from Helping Hands' rules that it feels that supervision of clients is crucial, yet the staff failed to supervise. The rules may well have an important bearing on whether the organization is found to be negligent.
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