Strengthen Assumption of Risk: Documentation of Notification of Warnings

unnamedI recently received an email from James Hellwege regarding risk management efforts of a provider in relation to the assumption of risks by the participants. It is encouraging when providers  take positive steps 1) to inform participants of the risks of an activity and 2) to document their actions with accuracy. The note is presented in its entirety below. DJC

By James Hellwege

I recently came across this blog entry of yours regarding pre-activity instruction by vendors in relation to assumption of the risk by participants:
Some thoughts for your consideration on this topic.

My scouts recently participated in a tree canopy course in West Virginia, prior to which the company did the following:

(1) noted everyone’s helmet number on a sheet of paper

(2) the sheet of paper having a list of topics to be covered by the instructor during a briefing prior to participating, ranging from overall safety to how to safely do specific elements, and

(3) had me initial the sheet of paper confirming that the safety briefing had covered all of the noted items (indeed, I had to remind the instructor which items he had overlooked, as he did not have the list of items in front of him, and missed a few).

Your blog entry looks at this from the vendor’s view – i.e., that the participants having been so informed could now be deemed to have assumed the risk of the activity, which might be asserted as a defense to an action for negligence.

As this was a new procedure for this particular vendor and a departure from prior years, my take on this (apart from the defense of liability standpoint) was favorable from the standpoint that it ensured that I, as the supervisory leader, was able to confirm that my scouts were adequately advised of the information which would permit them to properly participate on the course. It also enhanced my view that this particular vendor was taking its responsibilities seriously, as I was able to, in effect, serve as a quality control person regarding the substance of the pre-activity briefing that was given.

While certainly by my initialing the paper evidenced that our group was provided an adequate pre-activity briefing, it also provided me, as supervisory leader, some comfort that my scouts had been provided all relevant information prior to heading onto the course, increasing the odds that a successful day was to follow.

So, by the vendor being more careful than in previous years as to how the safety briefing was conducted, benefits (albeit of a different nature) flowed to both parties, the vendor and the participants, minimizing the possibility of a bad event occurring, as well as the need (hopefully) of the signed paper as evidence in an action for negligence.

Regards, Jim Hellwege

Risk Management Takeaways:
1. Be certain participants in your activity understand the inherent risks and that they can be injured.
2. Keep a record of your efforts.
3. Remember the actions of this provider: double check to see that everything is covered.
4. Keep a verified record of all in attendance.

Photo Credit: Thanks to Jim Helwege.