The Scariest Four Letter Word in Campus Recreation: Part I

July 19, 2011

Matt Campbell, J.D.
Assistant Director, Campus Recreation
Marshall University

Acknowledging the most feared four letter word in Campus Recreation is the first step in understanding it : R-I-S-K.

Risk…there, it’s out in the open. And now that it has been acknowledged, perhaps we can move beyond the knee-jerk reaction and discuss how risk is controlled, or in legal terms, mitigated. Because as scary as risk may be, nothing is more terrifying than finding out your plan to control that risk is inadequate or outdated.

This article will explore why risk is such an ominous topic for recreation professionals, what the current standard is for mitigating risk in campus recreation, and where the legal decisions are trending with regard to mitigating risk.

First we need to lay out why risk, and subsequently risk management, has become a major issue in campus recreation. It has nothing to do with the activities themselves–very little has changed about recreational activities in the past 30 years. Rather, the perception of risk has grown into the dominating factor in evaluating and controlling risk. Peter Sandman, an expert in risk communication, has developed a definition of risk independent of any legal reference. His definition has more to do with public perception, or as he calls it “the Outrage Model”. Sandman’s definition of risk is:

“RISK = HAZARD + OUTRAGE”
(Risk Communication: Evolution and Revolution, Covello and Sandman, 2004)

In this model, the hazard is the objective factor, such as the playing surface or the nature of the activity. Outrage is the subjective factor, often clouded with emotions and based upon personal values and opinions.

A recent ‘ESPN The Magazine’ article by Rick Reilly accurately frames this viewpoint. In his August 19th column, Reilly tells a tale of a 12-year-old Little Leaguer who “slid clumsily, wrenching his knee, ripping his ACL and tearing his meniscus.” (“A Tale of Two Little Leaguers,” ESPN The Magazine, Rick Reilly, August 19, 2009). The story then goes on to tell how the mother was so outraged, she sued everyone she could think of, from the manger to the first-base coach to the local & international Little League organizations. After five years in litigation, the matter has been settled for $125,000.

Using Sandman’s “Outrage Model,” it is apparent the emotional response, or outrage, plays a large role in analyzing risk. The hazards of sliding into a base during a baseball game are well known and traditionally assumed to be a part of the game. So if the hazard has been recognized and controlled, the outrage, or emotional reaction, distorts the assessment of acceptable risk. (Risk Communication: Evolution and Revolution, Covello and Sandman, 2004)

When this model is applied to the campus recreation setting, it is apparent why risk management has become a pressing issue. The increase in outrage over perceived risk has necessitated risk assessments and assumption of risk clauses, releases from liability, waivers and exculpatory clauses in an area which previously had little formality and was, rather, based upon common sense. While recent growths in health and technology have reduced hazards in campus recreation, the outrage factor has spiraled out of control. And as the outrage factor continues to grow, risk management strategies must also evolve.

The current standard for mitigating risk in campus recreation is a very formal and ritualistic procedure – signing an attorney-drafted, legally worded, multi-claused template limiting liability, waiving, indemnifying, releasing, and defending the campus recreation program. This “kitchen sink” model, printed in min. 8 point font and spilling onto multiple pages, often signed in a rush prior to entry or participation, has been legally challenged in recent years. And in an alarmingly high number of these cases the waiver has been ruled unenforceable in whole or in part. Often, the reasoning behind these rulings has more to do with practical rather than legal maxims. Elements evaluated when determining enforceability of the waiver include:

• Validity of the waiver — Are there any issues with the content or terms of the waiver? Is the patron of legal age? Does the patron have the capacity to sign? Is the waiver unfair or oppressive? Was the patron fraudulently induced to sign the waiver?
• Scope of the waiver — Was the waiver ambiguous or overbroad? Was the risk of injury foreseeable to the patron prior to its occurrence?
• Statutory regulations — Is assumption of risk barred as a defense to a claim in the state? Is there a sports injury statute defining what risks are acceptable?
• Public policy considerations — Are there any social, moral, or economic reasons to rule the waiver unenforceable? Is there a great disparity between the parties bargaining power (such as a big state university and a lowly student)?

The enforceability of a waiver is determined by the law in each state/province, and these laws often vary. In the textbook Law for Recreation & Sport Managers, the states have been categorized based upon the degree of rigor required for an enforceable waiver by the courts in the state. Cotten & Wolohan, 3rd. Ed. (2001).

• Lenient States — jurisdictions which allow waivers to cover nearly any situation–almost all waivers will be enforceable.
• Moderate States — jurisdictions which allow waivers but require that certain provisions regarding enforceability, including language of the waiver and forseeability of the injury.
• Rigorous States – jurisdictions which will allow waivers, but typically have statutory regulations regarding formation of the waiver, language & terms of the waiver, bargaining position of the parties, minimum standard of care, and other factors.
• Not Enforced — jurisdictions which waivers will not protect the service provider for any liability from negligence.
• Not Categorized — jurisdictions where no recreation or sport-related waiver cases were discovered.

Cotten & Wolohan, Law for Recreation & Sport Managers 3rd. Ed. (2001).

Further, as a result of a string of decisions by the Supreme Court of Canada, the defense of voluntary assumption of risk has been all but eliminated, leaving only the contractual liability agreements which are properly worded and defined, likely putting Canada in the rigorous enforcement category.

So where does this leave campus recreation programs? Is it worth our time to make all patrons sign the waiver? If I am in a “rigorous” state or a state where waivers are not enforced, what is the point in having a waiver? These are questions which will be addressed in the next Risk Management Newsletter, as we outline how to move away from legal jargon and develop an effective, dynamic document. The issues must also be evaluated on a regular basis in order to ensure that your risk management plan is not outdated. Because nothing, not even that scary four letter word, is worse than the seven letters which spell out L-A-W-S-U-I-T.