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Just a Matter of Time
The duty to address reasonably foreseeable risks
By Steven A. Adelman, Esq.
Even if you have not yet
suffered a significant loss at your venue, you will. As shown by September
11 and the chaos following Hurricane Katrina, there are new threats and new
consequences all the time. At best, you can hope to reduce your venue's
vulnerabilities and manage the risk that remains. The law imposes on every
venue the duty to do just that. Put another way, it is not a question of
if you get sued, but when.
Natural Laws of Risk
Anyone who thinks something bad cannot happen in their facility is gambling
with their patrons' safety with the deck stacked against them. For example,
Bernoulli's Principle, known as the "law of large numbers," and the Second
Law of Thermodynamics both show that over time, differences tend to even out
within every system. In facility management terms, if your venue has
thousands of guests several times a week all year long, where they will
leave behind their daily cares and inhibitions, some people will get hurt.
The threat of terrorism is greatest at loosely protected targets with lots
of entrances such as public assembly facilities. Some type of natural
disaster is possible just about everywhere. Without being alarmist, it is
simply a matter of scientific probability that your number will come up.
The history of public disasters suggests the same thing. Prolonged success
has tended to result in diminishing safety measures. Failures, and the
resulting expensive lawsuits and bad publicity, promote greater safety
efforts, and therefore new periods of safe operation. Then the cycle of
increasing complacency begins again.
Man-Made Laws of Risk Management
After any damage-producing event, the legal issue is whether the venue,
producer, promoter, security, and performer did enough to reduce the risk of
the harm that actually occurred. In other words, were these parties
negligent? This analysis turns on reasonableness and foreseeability.
The key to whether a venue acted reasonably is what risks were reasonably
foreseeable, and whether the venue took reasonable steps to prevent the
reasonably foreseeable harm that could result from those risks. A venue need
not take every possible safety precaution, only those that are reasonable
under the circumstances.
First, a venue must reasonably evaluate its risks. The fundamental risk
assessment is R = V x T x C (Risk = Vulnerability x Threat x Consequences).
IAAM's Academy for Venue Safety and Security teaches that this equation is
the most effective way to look at risk, but any risk assessment is better
than none at all. Using the Vulnerability Identification Self-Assessment
Tool ("ViSAT"), for example, would satisfy this reasonable evaluation
requirement.
Second, once a venue has done a reasonable risk assessment, it must minimize
the reasonably foreseeable consequences. So if the "R" of your equation is
big, then the law imposes a duty to take reasonable steps to reduce it.
Because reasonableness depends on the facts of a particular event, this can
be a complicated analysis which can have important social implications. The
following examples may help.
Generally, threats can be divided into "acts of man" and "acts of nature."
Acts of man are unforeseeable by definition. But September 11, the
subsequent rail bombings in Madrid and London, and the recent shootings at
Virginia Tech make it far less reasonable to do nothing to protect against
even relatively unlikely events if the venue knows, or reasonably should
know, that there would be catastrophic consequences if such an attack were
carried out.
Acts of nature can be charted from past events, and therefore foreseeability
is well-defined. For example, many dams, including those in New Orleans,
were built to withstand "hundred year floods." But Hurricane Katrina may
have changed the duty to foresee and protect against natural disasters.
People now realize that there were options that could have either
strengthened the dams before 2005 or improved the emergency response to a
flood, which almost anyone could have foreseen in a city that is mostly
below sea level. Media coverage of the post-Katrina chaos has likely made
the public much less receptive to claims that disastrous consequences were
unforeseeable.
It is no exaggeration to say that everyone involved in litigation has
some risk of losing. This even includes the victim. One defense strategy is
to allege that the victim "assumed the risk" of his own harm or was
"comparatively at fault." Sometimes this works, but blaming the victim can
backfire. For example, if an underage drinker gets hurt or hurts someone
else, it is tempting to blame him for drinking. Even a modestly competent
plaintiff's lawyer, however, will follow the money from alcohol sales back
to the venue, promoter, or producer in an effort to show a profit motive in
selling to even underage drinkers. Likewise, it may be hard to prove that a
concertgoer assumed the risk of standing near a mosh pit if even event
security did not see moshing until after the accident. A further practical
consideration is that an individual victim may be more sympathetic than a
defendant named Incorporated.
When Lawyers Darken Your Door
Hopefully you are doing your R = V x T x C analysis before
you suffer a catastrophic loss. Nonetheless, even the best prepared
facilities will have problems sooner or later. At that time, lawyers will
demand all kinds of paper, from official documents to informal
correspondence, and they will ask questions you may prefer not to answer
under penalties of perjury.
Whatever you think of lawyers in general or your venue's lawyer in
particular, the odds are strongly in favor of you needing one at some point
in your career. You simply cannot eliminate risk - you can only hope to
manage it.
Steven A. Adelman is
an attorney in Phoenix, Arizona. He will be on the faculty of the 2007
Academy for Venue Safety and Security. Mr. Adelman can be reached at
sadelman@rcdmlaw.com. |
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