It is a sad but true statement that in today's park and leisure-service profession there are only two types of managers:
Those who have been sued, and
Those that will be sued.
Therefore, it is critical that park and leisure-service professionals have a good working knowledge of legal responsibilities.
The most common type of lawsuit in parks and recreation is a negligence lawsuit.
Types of Liability
Tort liability: Tort is a civil rather than a criminal wrong, not involving a breach of contract, which infringes on the rights of another and entitles the injured party to sue for
Contractual liability: These are legal claims based on
charges of failure to perform as contracted.
Legal Terminology and Concepts of Liability
The increasing rate of litigation involving leisure service organizations requires a working knowledge of liability concepts for all professional staff. The laws that deal with liability are based on common law rather than statute law. This means that the legal interpretation rests with the jury and subject to appeal.
Liability is that condition for which an individual or organization is answerable and out of which arises a responsibility to perform in specific ways, which obligation is enforceable by court action; hence, a legal responsibility. When an individual is injured or property is damaged through proven negligence on the part of an agent or a leisure service organization, that agent and/or the organization may be sued in order to obtain redress. Even though ordinarily protected from liability by reason of the nature of the function performed, the organization, its agents, and its employees can be held liable in the event of negligence. Courts have consistently held that reasonable diligence by members of governing boards or commissions in assigning duties is sufficient to absolve them of personal liability. Commission members act in a corporate capacity and not for themselves. They cannot be held personally liable for the acts of their agents or the doctrine of respondent superior (let the master answer). With respect to the existence of an attractive nuisance, it must be shown that they had prior notice of the condition before liability could be imputed to members of the governing commissions for the existence and continuance of the attractive nuisance.
Tort is a civil rather than a criminal wrong, not involving a breach of contract, which infringes on the rights of another and entitles the injured party to sue for redress. A tortious act is construed as a legal wrong resulting in some form of injury to another individual or damage to property. Torts may accrue as a result of malfeasance, misfeasance or nonfeasance.
Malfeasance: (Intentional Torts) Malfeasance is an act of commission, without legal justification, with malicious intent to hurt, cause harm, or otherwise injure another party of his/her property through
misconduct or abuse of power or position (bribery).
Misfeasance: Misfeasance is an act of commission with legal justification but performed in such a bungling manner as to engender harm or injury to another party of their property.
Thus misfeasance is the improper or incompetent execution of a lawful act without malicious intent.
Such as performing CPR but doing it incorrectly which results in injury to
Nonfeasance: Nonfeasance is the omission of a lawful act or failure to perform a legal duty, without malicious intent, which causes damage or injury to persons and/or property (failure to perform first aid).
In Loco Parentis
In Loco Parentis means acting in the place of a parent. When a child is injured in a recreational situation through some aspect of negligence, it is assumed that the degree of cared owed to the child by the individual acting as the guardian has a recognized obligation to use a high degree of care to prevent exposing the minor to risk.
Due care implies the acceptance and practice of a professional "standard of care." It includes three elements.
1) Conformance to area and facility standards set by appropriate sanctioning organizations.
2) Conformance to health, fire and panic, sanitation and other public safety codes and regulations.
3) Providing designated, functional emergency facilities.
Negligence is the failure to exercise reasonable and prudent care in relation to a situation. The duties and obligations that are imposed on the managing authority of any public/private facility concern the exercise of reasonable or ordinary care in its operation. Ordinary and reasonable care is the degree of care that would be exercised by a reasonably prudent person under similar circumstances. The question of whether such care has been exercised must be determined by a jury.
Negligence is the fundamental factor to be proved before liability is assessed for injury or damage. In negligence, the law attached great significance to the foreseeability of hazard.
Foreseeability describes the extent to which an event or action that could or should have been anticipated and prevented by reasonable and prudent action. Negligence in terms foreseeability, must be based on factual evidence. Recreation professionals should specifically strive to anticipate all possible risks in any given situation and make every effort to alleviate them. For example.
A child was visiting a relative in a city away from home. She visited a public
playground where two boys were throwing a ball between them. One of the boys threw a wild pitch that struck the child. The court held that the city was not negligent.
It was the court's opinion that "... The mere failure of the city to prevent a single dangerous act of some child or children on the playgrounds ... does not make the city liable when there is nothing to show that the city had reason to suppose that the act would be committed. To hold the city liable under the circumstances disclosed by this record, because the superintendent in charge of this playground did not instantly stop these boys from playing an innocent game of catch, but permitted it to continue for a few minutes, is, to my mind imposing upon the municipality an unreasonable burden. I do not think that this unfortunate occurrence is anything which the city, or its employees, could have foreseen in the exercise of reasonable care."
Four Elements Necessary to Prove Negligence
There must be a duty owed.
There must be a breach of that duty owed.
The breach of duty must have caused the
damage or injury (causation). There must be a real loss/injury.
Damages. The injury or property damage received.
Invitee. An individual who enters the property that does not benefit the landowner economically. See Recreational Use Statute.
Licensee. Someone who enters the property of another for a business purpose.
Last Clear Chance. Last clear chance is the final opportunity to prevent injury to another who, because of contributory negligence has placed himself in a hazardous
Damages: Financial compensation that the legal system awards to one who has suffered a loss or been injured by the actions of another. Damages may be actual or punitive.
Actual Damages: losses which can be proven such as loss of wages, and for which the injured party by right should be compensated.
Punitive Damages: Compensation above and beyond the actual damages, used to punish the defendant for wrongdoing.
Proximate Cause. Proximate cause is a specific act, directly producing events or a set of circumstances leading to some injury.
Res Ipse Loquitur. Res ipse loquitur means the facts speak for themselves. A self-evident condition or situation in which the factor of negligence is obvious.
Attractive nuisance is any dangerous device, instrument, equipment, contrivance, structure, or condition of land that is naturally dangerous and
where the hazard is a continuing one. The attractive nuisance doctrine applies to situations involving children whose immaturity prevents them from exercising ordinary
common sense. It is based on the theory that the condition, which is naturally and usually attractive to children at play but which may result in injury, is an attractive
nuisance - being attractive and a nuisance at the same time. Liability, in such cases, is based on the proposition that any person of reasonable prudence would foresee
that a child would be attracted to such a condition and that injuries or death might ensue from the child's attraction. The courts take the position that the doctrine of
attractive nuisance does not hold for a child ten years of age or older.
Defenses to Negligence Action
One method of dealing with the risk of liability is by eliminating or reducing the factors or conditions that may cause injury or
damage. The recreationist who acts in a competent manner, thereby fulfilling his functions in a reasonable and prudent manner, can expect to escape the burdens of
litigation for tortious acts. There are defenses, however, that may be utilized in cases in which the defendant has acted reasonably, the incident could not have been
prevented by any known means, or the plaintiff brought the injury on himself
Vis Major. Vis major is an uncontrollable act of nature (act of God) causing injury. It in an accidental occurrence caused by some superior and unforeseeable force beyond human control and one that could not have been prevented even with reasonable and prudent care.
Assumption of Risk
Assumption of risk is an individual's voluntary involvement in a situation with full and complete knowledge of the possibility of hazard to be encountered through participation in that particular situation. Thus, an individual who participated in body contact sports knowingly assumes a certain risk of injury. The plaintiff played softball on a public playground that had concrete benches and curbing near the playing field. The plaintiff was aware of the risks and fully assumed the hazards. Having done so, the plaintiff must suffer the consequences; his voluntary and knowing exposure of himself to risk precluded recovery from the defendant.
express assumption of risk: when risks are told or written.
implied assumption of risk: when knowledge of the risk comes
from a person's background, experience or common knowledge.
Assumption of Risk form
Contributory negligence is an action taken by an individual who, because of failure to perform properly, sustains personal injury of property
damage. People who foolishly expose themselves to danger are subject to contributory negligence. However, primary consideration is accorded to the age of the
individual involved and the action in which he was engaged at the time of the injury. Contributory negligence ensues when an individual performs on a lower level or
standard of behavior than is required for the activity. When the person fails to offer protection to himself, the courts ordinarily do not allow recovery for damages
sustained. If however, the recreationist in charge does not take advantage of a "last clear chance" to prevent the injury or damage, he may be held liable despite any contributory negligence on the plaintiff's part.
Negligence is Not Proximate Cause of Damage. When a minor was struck on the head by a baseball thrown on a playground by another minor to a third player who ducked the pitch, proximate cause of injury was unforeseen action of the child who threw the ball. The absence of the recreationist, who was handing out craft supplies from a nearby supply room, was not the proximate cause of the injury so as to impose liability for damage on the recreational service department.
Denial of Negligence. A denial of negligence on the part of the defendant would require a court proceeding thereby presenting a factual situation on which the court or the jury must decide. The defendant would have to prove that he acted in accordance with standard operating procedures universally accepted or known, that his actions were those of a reasonable and prudent person under similar or known, that his actions were those of a reasonable and prudent person under similar circumstances, or other evidence that would absolve him from liability.
Trespasser. A trespasser is one who is in a given location without invitation or right to be present in a given situation. Trespass is a clear violation of the right of protection from infringement on one's person or property through unauthorized presence. An exception to the rule of non-liability to the trespasser is the attractive nuisance doctrine and generally applies to children. Swimming facilities, for example, should be enclosed by high fences and the entrance secured by gates kept locked during the off-season or whenever the facility is closed. Children are likely to visit unfenced and unguarded pools and injury or even death could be the consequence.
This could raise the question of contributory negligence as well as trespassing. A very young child who has not yet reached the age of discretion cannot be guilty of contributory negligence: however, he can be a trespasser regardless of age.
In the case of a young child who enters a pool area by climbing a fence or crawling under a gate and then falls into the pool and drowns, two points may be made.
First, negligence on the part of the swimming facility authority for not constructing a better
Second, trespassing by the child on the ground that the facility authority has no obligation other than to refrain from willfully injuring the child. Recent court decisions, however, indicate that public authorities owe more to the trespassing child than mere refrainment from willful injury. The authority must use reasonable care to prevent exposing the child to unreasonable risk or injury.
Recreation professionals are expected to guide, direct, and operate the various activities under their immediate- supervision in a safe, reasonable, and prudent manner. If precautions are not taken, they risk their employer and themselves to exposure to litigation for redress of tortious acts owing to negligence. Recreational activities at playgrounds and other recreational places involve many unpremeditated hazardous situations. Elimination of all possible hazardous situations would be tantamount to the
very denial of the right and opportunity to participate in recreational experiences. Recreational activity is so important to the growth and development of children that departments responsible for playgrounds and other recreational facilities should use all reasonable precautions, including adequate supervision at all times.
Supervision should be exercised not only in reference to people, especially children, but to physical facilities and are as well. Unsafe conditions must be removed or repaired with reasonable diligence. To perform incompetently or in a manner that indicates negligence in any way invites litigation and places a greater administrative burden on the department and the citizens of any community.
Recreational Use Statue
Many states have implemented recreational use statutes in an effort to protect landowners who allow others on their property, without charge, for recreational purposes. Recreational Use statutes are intended to protect landowners from liability for simple negligence, but not from gross negligence, willful or malicious acts.
Additional Reading: Arizona Recreational Use Statute
Tucson Commercial Trail Ride
Example of a Recreational Use Statute Case:
In Bishop v. Beckner, 2002 Tenn. App.
Lexis 678 (September, 2002), 14-year-old Jesse Bishop was killed when he fell off of a ledge while exploring inside a cave on Helen Beckner's property. Jesse and some friends had trespassed on Beckner's property to explore the caves - they had not asked permission to enter the property.
A lawsuit was filed by Jesse Bishop's mother and brother against Helen Beckner, claiming that she was negligent in failing to post signs at or near the entrance to the cave and this negligence caused Jesse Bishop's death. Helen Beckner filed a motion for summary judgment, which in essence is asking the court to dismiss the case because it has no merit. She claimed that Jesse Bishop was a trespasser, and as such, she owed no duty to warn him of dangers. She also claimed that under Tennessee's recreational use statute, she owed no duty of care to those entering her property to engage in "recreational activities" such as this caving expedition. The lower court granted Helen Beckner's request for a summary judgement and dismissed the case on both grounds.
When the case was appealed, the court of appeals upheld the lower court's ruling to dismiss the case on the strength of Tennessee's recreational use statute. It noted that "caving" was a "recreation activity" named under the statute. The court stated that under the Tennessee statute, it does not matter whether those entering another's property for recreational purposes ask permission to enter or not. In both instances, a landowner owes no duty to inspect the land, provide warnings, or keep the premises safe for entry or use by others for ...recreational activities.
The Tennessee statute and most other state recreational use statutes, does not protect the landowner from liability for gross negligence, or willful or wanton conduct. However, as charged in this case, the Court found that Beckner's failure to post signs at the boundary of her property and at the entrance to the cave did not amount to "gross negligence" (as defined under Tennessee law a ...negligent act done with utter unconcern for the safety of others, or in ...reckless disregard for the rights of others... ).
The Court also noted that Beckner had not created the condition since the caves were a natural condition.
Additional Reading: Flagstaff wins immunity in sled accident case
CHAPTER 12. LIABILITIES AND DUTIES ON PROPERTY USED
FOR EDUCATION AND RECREATION
ARTICLE 1. GENERAL PROVISIONS
§ 33-1551. Duty of owner, lessee or occupant of premises to
recreational or educational users; liability; definitions
A. A public or private owner, easement holder, lessee or occupant of premises is not liable to a recreational or educational user except upon a showing that the owner, easement holder, lessee or occupant was guilty of wilful, malicious or grossly negligent conduct which was a direct cause of the injury to the recreational or educational user.
B. This section does not limit the liability which otherwise exists for maintaining an attractive nuisance, except with respect to dams, channels, canals and lateral ditches used for flood control, agricultural, industrial, metallurgical or municipal purposes.
C. As used in this section:
1. "Educational user" means a person to whom permission has been granted or implied without the payment of an admission fee or any other consideration to enter upon premises to participate in an educational program, including but not limited to, the viewing of historical, natural, archaeological or scientific sights. A nominal fee that is charged by a public entity or a nonprofit corporation to offset the cost of providing the educational or recreational premises and associated services does not constitute an admission fee or any other consideration as prescribed by this section.
2. "Grossly negligent" means a knowing or reckless indifference to the health and safety of others.
3. "Premises" means agricultural, range, open space, park, flood control, mining, forest or railroad lands, and any other similar lands, wherever located, which are available to a recreational or educational user, including, but not limited to, paved or unpaved multi-use trails and special purpose roads or trails not open to automotive use by the public and any building, improvement, fixture, water conveyance system, body of water, channel, canal or lateral, road, trail or structure on such lands.
4. "Recreational user" means a person to whom permission has been granted or implied without the payment of an admission fee or any other consideration to travel across or to enter upon premises to hunt, fish, trap, camp, hike, ride, exercise, swim or engage in similar pursuits. The purchase of a state hunting, trapping or fishing license is not the payment of an admission fee or any other consideration as provided in this section. A nominal fee that is charged by a public entity or a nonprofit corporation to offset the cost of providing the educational or recreational premises and associated services does not constitute an admission fee or any other consideration as prescribed by this section.
Amended in 1998.
Supervision is cited in the majority of lawsuits in the recreational setting. There are two types of supervision.
General: The recreation center manager or director would be an example of general supervision. They may set policy and guidelines but do not directly supervise
Specific: Program and activity leaders who are working directly with the participants are providing specific supervision.
Child Abuse Issues in Parks and Recreation Agencies
Unfortunately, some individuals are attracted to jobs in park and recreation organizations with criminal intent. Pedophiles and child abusers are a real concern in park and recreation organizations because they represent a real threat to individuals in their care and a major liability exposure to the organization.
Ways to reduce improper hiring:
Always conduct a criminal background check on all staff and volunteers.
Always conduct an extensive reference check on all job applicants.
What Constitutes Child Abuse?
Any [person listed
above under Who Must Report] who reasonably believes that a minor (someone under
18) is or has been the victim of one of the following crimes or events that
appears to have been inflicted on the minor (1) by other than accidental means
or (2) that is not explained by the available medical history as being
accidental in nature, shall immediately report or cause reports to be made of –
1. Physical Injury: This is not defined in § 13-3620, but § 13-105(29) defines physical injury for these purposes “unless the context otherwise requires” as “the impairment of physical condition.” Section 13-3623, below, includes a broader definition of physical injury as one form of reportable child abuse. Arizona Attorney General’s Opinion I82-086 concluded that “injury” as used in the pre-2003 version of § 13-3620 includes all non-accidental injuries, even “incidents in which children injure each other while on school grounds.”
2. Abuse as defined in § 8-201: Infliction or allowing of physical injury, impairment of bodily function, disfigurement, or infliction of or allowing another to cause serious emotional damage (evidenced by severe anxiety, depression, withdrawal or untoward aggressive behavior) which emotional damage is diagnosed by a medical doctor or psychologist and is caused by acts or omissions of a person having care, custody and control of a child. Abuse expressly includes, but is not limited to, inflicting or allowing sexual abuse (§ 13-1404, below), sexual conduct with a minor (§ 13-1405, below), sexual assault (§ 13-1406, below), child molestation (§ 13-1410, below), commercial sexual exploitation of a minor (§ 13-3552, below), sexual exploitation of a minor (§ 13-3553, below), incest (§ 13-3608, below) or child prostitution (§ 13-3212, below).
3. Child Abuse as defined in § 13-3623: Causing a child to suffer physical injury (impairment of physical condition, including bruising, pressure sores, bleeding, failure to thrive, malnutrition, dehydration, burns, fractures, subdural hematoma, soft tissue swelling, injury to any internal organ, or any physical condition that imperils health or welfare) or abuse (§ 8-201, above); or someone with care or custody of a child causing or permitting the person or health of a child to be injured; or causing or permitting a child to be placed in a situation where the person or health of the child is endangered. This expressly includes permitting a child to enter a structure or vehicle where chemicals or equipment for manufacturing dangerous drugs is located.
4. A “Reportable Offense” as defined and listed in § 13-3620(P)(4). This definition was added in 2003, and refers to a long list of other provisions of Arizona criminal law, as follows. Some are very unlikely to occur involving schoolchildren (e.g., sexual assault of a spouse, adultery), but are listed here for complete coverage of these laws:
a. Any Offense Listed in Chapter 14 of Title 13, the Arizona Criminal Code. These are Sexual Offenses, and include:
i) Indecent Exposure as defined in § 13-1402: A person exposing his or her genitals or anus or a woman exposing the areola or nipple of the breast with another person present, when the exposer is reckless about whether the other person, as a reasonable person, would be offended or alarmed by the act.
ii) Public Sexual Indecency as defined in § 13-1403: Intentionally or knowingly engaging in any of the following acts if someone else is present, and the actor is reckless about whether the other person, as a reasonable person, would be offended or alarmed by the act: (a) sexual contact (any direct or indirect touching – indirect could include over clothing – fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or any object, or causing a person to engage in such contact; § 13-1401(2)); (b) oral sexual contact (oral contact with the penis, vulva or anus, § 13-1401(1)); (c) sexual intercourse (penetration into the penis, vulva or anus by any part of the body or by any object, or masturbatory contact with the penis or vulva, § 13-1401(3)); or (d) an act involving contact between the person’s mouth, vulva or genitals and the anus or genitals of an animal. Public sexual indecency to a minor is a separate offense, and is committed if the actor commits any of the listed acts and is reckless whether a minor under 15 is present.
iii) Sexual Abuse as defined in § 13-1404: Intentionally or knowingly engaging in sexual contact (see definition in para. ii, above) with any person 15 or more years of age (1) without consent of that person (“without consent” includes but is not necessarily limited to (a) coercion by the use or threat of force against a person or property, (b) being incapable of giving consent because of mental disorder, drugs, alcohol, sleep, etc., when such condition is or should be known to the perpetrator, or (c) intentional deception as to the nature of the act, § 13-1401(5)), or (2) with any person who is under 15 years of age if the sexual contact involves only the female breast. * [See page 8 for a Reporting Exception] *
iv) Sexual Conduct With a Minor as defined in §13-1405: Intentionally or knowingly engaging in sexual intercourse (see definition in para. ii, above) or oral sexual contact (see definition in para. ii, above) with any person who is under 18 years of age. * [See below for a Reporting Exception] *
* [Reporting Exception: Note that §13-3620(B) adds that “a report is not required under this section for conduct prescribed by §§13-1404 and 13-1405 if the conduct involves only minors who are 14, 15, 16 or 17 years of age and there is nothing to indicate that the conduct is other than consensual.” This does not mean that the conduct is not prohibited – only that no mandatory duty to report exists.] *
v) Sexual Assault as defined in §13-1406: Intentionally or knowingly engaging in sexual intercourse (see definition in para. ii, above) or oral sexual contact (see definition in para. ii above) with any person without consent of such person (see above, para. iii, re: “without consent”).
vi) Sexual Assault of a Spouse as defined in § 13-1406.01: Intentionally or knowingly engaging in sexual intercourse (see definition in para. ii, above) or oral sexual contact (see definition in para. ii above) with a spouse without the spouse’s consent by the immediate or threatened use of force against the spouse or another. (see above, para. iii re: “without consent”).
vii) Adultery as defined in § 13-1408: A married person having sexual intercourse (see definition in para. ii above) with someone besides his or her spouse, or a single person having sexual intercourse with a married person.
viii) Molestation of a Child as defined in §13-1410: Intentionally or knowingly engaging in or causing a person to engage in sexual contact (see definition in para. ii above), except sexual contact with the female breast, with a child under fifteen years of age.
ix) Sexual Misconduct by a Behavioral Health Professional as defined in § 13-1418: A licensed behavioral health professional, psychiatrist or psychologist who intentionally or knowingly engaging in sexual intercourse (see definition in para. ii, above) with a client currently under the professional’s care.
x) Unlawful Sexual Conduct by Corrections Personnel as defined in § 13-1419: Oral sexual contact, sexual contact or sexual intercourse, (see definitions in para ii, above) between a minor prisoner in custody or on release status and an employee or a person contracted to provide services to the Department of Corrections, the Department of Juvenile Corrections, a private prison or a city or county jail.
b. Any Offense listed in Chapter 35.1 of Title 13, the Arizona Criminal Code: These are crimes involving Sexual Exploitation of Children, and include:
i) Commercial Sexual Exploitation of a Minor as defined in §13-3552: Knowingly using, employing, persuading, enticing, inducing or coercing any minor, or permitting a minor under the person’s custody or control, either (1) to engage in or assist others to engage in exploitive exhibition (actual or simulated exhibition of the genitals or pubic or rectal areas for the purpose of sexual stimulation of the viewer) or other sexual conduct (actual or simulated sexual intercourse – genital-genital, oral-genital, anal-genital or oral-anal – penetration of the vagina or rectum by any object, bestiality, or masturbation, sadomasochistic abuse or defecation or urination for the purpose of sexual stimulation) for the purpose of producing any visual, electronic or print depiction or live act depicting such conduct, or (2) to expose the genitals or anus or the areola or nipple of a minor female’s breast for financial or commercial gain, or transporting or financing the transportation of any minor with the intent that such minor engage in prostitution, exploitive exhibition or other sexual conduct for the purpose of producing a visual or print depiction or live act depicting such conduct.
ii) Sexual Exploitation of a Minor as defined in §13-3553: Knowingly recording filming, photographing, developing, duplicating, distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual, electronic, print or other depiction, in which a minor is engaged in exploitive exhibition or other sexual conduct (see definitions in para. B.i above).
iii) Luring a Minor for Sexual Exploitation as defined in § 13-3554: Offering or soliciting sexual conduct (see definition in para. i above) with another person knowing or having reason to know the other person is a minor.
iv) Admitting Minors to Public Displays of Sexual Conduct as defined in § 13-3558: An owner, operator or employee of a business admitting a minor to the business where persons expose their genitals or anus, or the areola or nipple of the female breast.
c. Furnishing Harmful Items to Minors Via the Internet as defined in A.R.S. § 13-3506.01: With knowledge of the character of the item involved, intentionally or knowingly transmitting or sending to a minor by e-mail, personal messaging or any other direct internet means an item harmful to minors when the sender knows or believes at the time of transmission that a minor in Arizona will receive it. The definition of “harmful to minors” in § 13-3501(1) is complex, and legal counsel should be consulted if this issue arises.
d. Surreptitious Photographing, Videotaping, Filming or Digitally Recording of a Minor as defined in § 13-3019: Knowingly photographing, videotaping, filming, digitally recording or otherwise using a device to secretly view or record another person without consent (1) in a restroom, bathroom, locker room, bedroom or other location where the person has a reasonable expectation of privacy, and, (2) while the person is urinating, defecating, dressing, undressing, nude or involved in sexual intercourse or sexual contact.
e. Child Prostitution as defined in § 13-3212: Knowingly causing a minor to engage in prostitution, using a minor for prostitution, permitting a minor under a person’s custody or control to engage in prostitution, receiving any benefit from procuring, placing or agreeing to participate in the proceeds of a minor’s role in prostitution, financing, managing, supervising, controlling or owning an interest in prostitution activity involving a minor, or transporting or financing the transportation of a minor through or across this state with the intent that the minor engage in prostitution.
f. Incest as defined in § 13-3608: Knowingly committing fornication or marriage between persons 18 or more years of age who may not legally marry – in Arizona first cousins or closer relatives. It is unknown why this law was included in the list of reportable abuse, since the statutory definition of incest in Arizona now expressly applies only to adults – those 18 or older.
5. Neglect as defined in § 8-201: The inability or unwillingness of a parent, guardian or custodian to provide a child under that person’s care with supervision, food, clothing, shelter or medical care, if that inability or unwillingness causes substantial risk of harm to the child’s health or welfare, unless the inability to meet the needs of a child with a disability or chronic disease is solely due to the unavailability of reasonable services.
6. Denial or Deprivation of Necessary Medical Treatment or Surgical Care or Nourishment With the Intent to Cause or Allow the Death of an Infant Who is Protected Under § 36-2281, as defined in § 13-3620(A): An infant (1) born with a handicap, (2) not wanted by the parent(s) or guardian, (3) born alive by natural or artificial means, or (4) in need of necessary lifesaving medical or surgical care. This is not directly relevant for most school personnel, but potentially could be seen if information about a student’s child or other relative came to school personnel.
7. Presence of Alcohol or Drugs in a Newborn as defined in § 13-3620(F): Although not directly relevant for most school personnel, a requirement was added in 1998 that any licensed health care professional whose examination of a newborn under 30 days of age, or review of toxicology results for the newborn, discloses reasonable grounds to believe the newborn is affected by alcohol or prohibited drugs must report this information to C.P.S.
Who May Report Child Abuse
Any person other than one required to report or cause reports to be made under subsection A of this section who reasonably believes that a minor is or has been a victim of abuse, child abuse, physical injury, a "reportable offense" or neglect may report the information to a peace officer or to child protective services of the department of economic security, except if the report concerns a person who does not have care, custody or control of the minor, the report shall be made to a peace officer only.
Failure to Report Child Abuse
The organization and/or the individual could be sued for a failure to report abuse is a real possibility if a perpetrator later injures the same child again, or harms another child.
‘Reasonable grounds’ [since 2003, the legal threshold for reporting is a reasonable belief] as used in A.R.S. § 13-3620 means that if there are any facts from which one could reasonably conclude that a child had been abused, the person knowing those facts is required to report those facts to the appropriate authorities. ‘Reasonable grounds’ is a low standard. [W]e believe that the policy of encouraging people to report child abuse mandates the determination that the trial court did not err in finding that [the counselor] had reasonable grounds to suspect abuse and therefore to report it. The statute does not contemplate that a person must fully investigate the suspected abuse before making a report. All the person must do is make the report. It is the responsibility of Child Protective Services and the police to investigate the allegations. . . . [W]e do not believe our legislature intended persons with knowledge of alleged child abuse to conduct their own investigation to decide whether enough evidence of abuse exists to warrant a report.
Reporting Child Abuse
When reporting is mandatory (see Who Must Report, above), § 13-3620(A) requires that someone under a duty to do so “shall immediately report or cause reports to be made of this information to a peace officer or to Child Protective Services in the Department of Economic Security, except if the report concerns a person who does not have care, custody or control of the minor, the report shall be made to a peace officer only.”
LAW ENFORCEMENT RESPONSIBILITIES
Many park and recreation agencies have established their own police or ranger units to enforce laws and protect visitors and staff members. Several issues are important for these officers to deal with.
right of free speech
search and seizure procedures
sexual assault or harassment
Legal Issues in Employment
It is also important the every park and leisure-service agency has non-discriminatory policies (Civil Rights Act, 1964 and Equal Employment Opportunity Act, 1972, Americans with Disabilities Act, 1990). These policies usually relate to the following issues:
racial and ethnic discrimination
persons with disabilities - Americans with Disabilities Act (ADA)
persons with HIV/AIDS
participation by non-residents
individuals with disabilities
Basic points of sexual harassment, sexual harassment is:
|unwelcome sexual advances|
|not desired by the employee (victim)|
|conduct that creates a hostile or abusive work environment|
|can arise from either verbal or physical conduct.|
Americans with Disabilities Act (ADA, 1990)
ADA was passed to make places of public accommodation accessible to people with disabilities. People with disabilities must be able to physically access certain places but they must be allowed to freely participate in those places.
This law prohibits employment discrimination on the basis of age for people at least 40 years old.
|substantive due process, is that the Constitution protects basic rights such as freedom of speech, religion and rights to property.|
|procedural due process, identifies how the government can go about taking away a person's freedom or property (ie. eminent domain).|
Managers owe a duty to employees to provide a safe work environment.
These are broad policies and specific procedures designed to reduce injuries and accidents by staff members, participants, and visitors and reduce liability exposure of the agency or organization.
Four stages of risk management
Risk-management planning includes the following areas:
participant safety briefing and preparation
waivers/assumption of risk forms
environmental and weather procedures
|Every agency needs adequate insurance coverage. Many
municipalities are self-insured or have a commercial "umbrella"
policy. Self-insured means the municipality is responsible for paying any and
all judgements or claims against it. They may be self-insured but have
commercial coverage for lawsuits over a specific amount. For example, a city may
self-insure up to 10 million dollars and have a commercial liability policy
coverage for any amount over 10 million. Many recreation related injury
judgements can be in the millions of dollars.
One example is a school system in Arizona had a 28 million dollar judgement against it for injuries sustained by two students in a school bus crash. The school had a ten million dollar commercial policy but had to pass a bond, which increased the city resident's property tax, to cover the outstanding 18 million dollars.
It is also important for individual's to have their own professional liability insurance, usually for one million dollars in coverage. These policies are affordable and may be purchased through a professional association.
CONTRACT LAW AFFECTING LEISURE-SERVICE AGENCIES
Contract: an agreement between people that is enforceable by law if certain conditions are met. To have a valid and enforceable contract you must have an offer and acceptance.
Principles for Contract Management
Read and understand the contract.
Document events, meetings, and conversations.
Head off disputes or performance failures
Ensure requirements of contract are complied with.
Other Contract Areas
property uses and/or conversions
COMPONENTS OF A RISK MANAGEMENT PLAN
1. Identify all sources of potential risk:
Personnel: A complete review of all staff
backgrounds. the review should include education, training, prior work experience and a police
background check for any arrests or convictions. A growing trend is random or pre-condition of hiring, drug testing. A majority of on-the-job injuries and civil lawsuits are directly attributable to
improper employee training or the failure of employees to follow company operating policies.
Facilities: A poorly designed or maintained facility can cause injury to staff and participants. Facilities should be inspected on a routine basis for broken or worn
equipment and building repairs. Inspection records should be kept on file. Any injuries
occurring in the facility should be documented and kept in a file for review.
Leadership: A majority of lawsuits in the parks and recreation profession cite improper supervision as a cause or contributing factor. Leadership includes direct
supervision of participants and staff and indirect supervision. Indirect supervision refers to management responsibilities in
setting policy and procedures for the organization.
Participant behavior: In many instances the behavior of the participant has caused an accident or injury to themselves or others. This is referred to as contributory negligence. Poor judgment or improper behavior may precipitate an injury. Clearly established and enforced rules help reduce this type of loss.
2. Develop policies and procedures to reduce, transfer, eliminate or accept the risks identified.
A thorough review of all program accidents and incidents (an
incident is where an dangerous situation occurred but no injury resulted). The review process will determine which programs or
activities should be re-designed to reduce the possibility of injury or litigation.
Determining what programs to reduce, transfer, eliminate or accept risks from will depend on the frequency and severity of injuries incurred. Most sport leagues may have a high frequency of sprained ankles (low severity). This would be a program you may try to improve the playing field's surface to reduce the frequency but would probably accept the continued risk of offering the program. Rock climbing may result in few injuries but they may be catastrophic in nature (high severity). This program you may want to transfer to a private contractor.
Reduce risks by implementing new policies or procedures for the activity. When the number of injuries
increased from flag football, creating a no rush rule reduced the injuries form the activity. Requiring safety equipment such as helmets, eye guards or surfacing materials.
Transfer risks by contracting out programs or activities to other private businesses or organizations. Hold your golf program on a public course or use a commercial
rafting company for outdoor raft trips.
Eliminate risks for programs which may have a high frequency and high severity of injuries.
Accept risks for programs with low frequency, low severity or high frequency with low severity injuries.
3. Implement the policies and procedures, then evaluate them on a continuous basis.
Implement policies to reduce the frequency or severity of injuries then
monitor the success of the policies. Continual review and improvement of policies will reduce injuries and legal
On-line Resources: Parks Canada Visitor Risk Management Handbook
A Risk Management Lesson
Our scout master told us all write to our parents in case you saw the flood on TV and worried. We are OK. Only 1 of our tents and 2 sleeping bags got washed away. Luckily, none of us got drowned because we were all up on the mountain looking for Chad when it happened. Oh yes, please call Chad's mother and tell her he is OK. He can't write because of the cast. I got to ride in one of the search & rescue jeeps. It was neat. We never would have found him in the dark if it hadn't been for the lightning.
Scoutmaster Webb got mad at Chad for going on a hike alone without telling anyone. Chad said he did tell him, but it was during the fire so he probably didn't hear him. Did you know that if you put gas on a fire, the gas can will blow up? The wet wood still didn't burn, but one of our tents did. Also some of our clothes. John is going to look weird until his hair grows back. We will be home on Saturday if Scoutmaster Webb gets the car fixed.
It wasn't his fault about the wreck. The brakes worked OK when we left. Scoutmaster Webb said that a car that old you have to expect something to break down; that's probably why he can't get insurance on it. We think it's a neat car. He doesn't care if we get it dirty, and if it's hot, sometimes he lets us ride on the tailgate. It gets pretty hot with 10 people in a car. He let us take turns riding in the trailer until the highway patrolman stopped and talked to us. Scoutmaster Webb is a neat guy. Don't worry, he is a good driver. In fact, he is teaching Terry how to drive. But he only lets him drive on the mountain roads where there isn't any traffic. All we ever see up there are logging trucks.
This morning all of the guys were diving off the rocks and swimming out in the lake. Scoutmaster Webb wouldn't let me because I can't swim and Chad was afraid he would sink because of his cast, so he let us take the canoe across the lake. It was great. You can still see some of the trees under the water from the flood. Scoutmaster Webb isn't crabby like some scoutmasters. He didn't even get mad about the life jackets.
He has to spend a lot of time working on the car so we are trying not to cause him any trouble. Guess what? We have all passed our first aid merit badges. When Dave dove in the lake and cut his arm, we got to see how a tourniquet works. Also Wade and I threw up. Scoutmaster Webb said it probably was just food poisoning from the leftover chicken, he said they got sick that way with the food they ate in prison. I'm so glad he got out and become our scoutmaster. He said he sure figured out how to get things done better while he was doing his time.
I have to go now. We are going into town to mail our letters and buy bullets. Don't worry about anything. We are fine.
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