There are lots of reasons to love a great stadium: team loyalty, seats with perfect views, fond memories, or maybe just the best stadium food in town. But when you manage a sports venue, you face the not-so-glamorous challenge of trying to minimize the facility’s liability. High liability resulting from unsafe facilities can be catastrophic for your bottom line and reputation.
Liability is the risk that your organization will be sued for injuries (or property damage) that occur at your facility. You can’t eliminate liability altogether—some events just aren’t foreseeable. But making your sports facility as safe as possible, obtaining waivers, and purchasing liability insurance can dramatically reduce your risk.
Operating a safe facility is critical to limiting liability. Sports participants and attendees can only win a lawsuit against the facility if they can show harm to them or their property. Without injury, there’s no basis for a lawsuit.
Even if an unforeseen injury occurs, facilities that have taken all reasonable steps to ensure visitor safety will be exposed to less liability. On the other hand, venues can generally be held liable for injuries caused by situations that they knew or should have known were dangerous. “Should have known” is often interpreted broadly; if something is on your property, there’s a good chance a court will find you should have known about it. And if you know something is dangerous, you’re obligated to mitigate that risk.
On the field
Take the example of a football field. If you place a wall too close to the end zone, it’s reasonable to expect that a player may accidently run in to it and injure himself. When the wall is already in place, it is tempting to ignore the risk. But if a player does get hurt, he or she will have a strong claim that your organization was negligent because you should have anticipated how dangerous the wall was. It’s far better to be cautious and try to mitigate the risk by padding (or even removing) the wall.
A situation like this occurred in the State of Washington, where a football coach at an away game noticed a concrete curb separating the football field from track facilities. The coach worried that an athlete would be propelled out of bounds and run into the curb. The coach stationed himself between the curb and the field. Sure enough, two athletes collided with him and the coach was injured. He sued the facility, arguing that he had no other reasonable choice in order to protect players. The Washington Court of Appeals held that the argument was reasonable, and his case was allowed to proceed.
You need to be just as conscientious in maintaining safe practice facilities as with the primary field or court. Injuries that occur during practices (and the resulting lawsuits) can be just as catastrophic as game-day injuries.
And off the field
Facilities also need to minimize the risk to spectators. Visitors often sue for injuries wholly unrelated to the main sporting event, including slip-and-fall accidents and injuries inflicted by other fans. Again, the best way to avoid lawsuits is to prevent injuries. That can mean keeping floors dry (many venues sell drinks in oversize cups or cans to limit spilling). But it can also mean ensuring adequate security to prevent spectator fights such as an easy way for spectators to easily notify staff of other disorderly spectators.
Think about pre- and post-game accidents
Take reasonable precautions against foreseeable accidents that might happen outside of game hours. For example, a common facility-related injury is caused by unanchored soccer goals when fans use the field for postgame Frisbee or tailgating. Unsecured goals have killed or seriously injured nearly 100 people over the past 50 years by falling on them. Many of those people were probably reckless; maybe they were hanging from the goal or attempting to climb it. But as a facility manager, you’re expected to anticipate that people will do risky things, and you’re expected to take precautions to limit the possibility of injury.
Think about where fans will be outside of game hours. They’ll be travelling to and from cars or other transportation. They’ll be in restaurants, merchandise stores, and restrooms. They’ll certainly be on the field and will interact with any equipment left on the field, like bases or backstops.
Don’t assume that fans will follow all warnings and posted signs. You can’t completely control their behavior, but if it’s foreseeable that they’ll take a shortcut across the field instead of staying on a marked path to the parking lot, inspect the field for holes. While visitors are sometimes deemed to have assumed liability for injuries resulting from their bad decisions, it’s best to take as many precautions as possible.
Exceptions to the rule
While facilities can be liable for many injuries, they are generally not liable for injuries that are a direct result of the game. The rationale is that by playing sports at all, athletes assume certain risks. The facility is generally not liable for those injuries, unless its negligence helped cause the injury. For example, a football player who sustains a knee injury when he’s tackled would be unlikely to win a case against the stadium, because that’s a regular part of playing the game. However, if the same player sustains an injury because of the poor condition of the field, he may well have a viable case.
The same principle usually applies to spectators. For example, courts have found that by going to a baseball game, fans assume the risk of being hit by balls and broken bats that fly into the stands. As a result, they are unlikely to win a suit against the facility for their injuries. However, facility negligence can change the outcome.
As a manager, you should think defensively in order to limit liability. Try to anticipate what could go wrong at your facility, and think about what you can do to limit the risk. If you notice a hazard, take care of it as soon as possible.
Good employees are essential to maintaining safe facilities. As a facility manager, you should ensure that your workers understand that safety is a high priority for your organization. Establish clear policies so that workers who spot a potential hazard know what to do, including where to report concerns. Find areas where poor maintenance might lead to safety concerns and do routine checks to make sure everything is in order. Train employees to use checklists so they don’t miss safety steps.
Remind your employees to think through the safety implications of their actions. In Louisiana, a concertgoer sued the concert venue’s owner after she walked down a hallway in the back of a building and fell from an aboveground platform. Ordinarily, the platform was blocked by a door with a “Do Not Enter” sign. However, the door had been propped open to improve airflow. Ultimately, the concertgoer received almost $200,000 in damages. Train your employees to think through whether a seemingly good decision—increasing airflow in a crowded building—will create risks like concealing warning signs or inviting attendees to enter employee-only areas of a venue.
When you’re hiring new workers, try to assess whether they will be safety-conscious and committed to making sure the facility is as safe as possible. If you take safety seriously, your staff will too.
No matter how cautious you are, injuries happen. To limit liability, it’s essential for you to require athletes to sign waivers that limit suits against the facility. If the athletes are minors, their parents must also sign the waivers.
Waivers typically reiterate that the activity is inherently risky, and the participant waives claims against the facility for any injuries sustained. While waivers are critical for limiting liability (and often required by insurance carriers), they don’t eliminate the possibility of a lawsuit.
You should check with an attorney in your state about the rules surrounding waiver enforceability. Certain states may refuse to enforce a waiver signed by a parent on their child’s behalf, or a waiver of facility liability for negligence.
So you’ve limited your liability by running a safe facility, training workers, obtaining liability waivers from athletes. But something totally unexpected causes an injury. Maybe a light fixture falls from the ceiling. This is the type of accident that liability insurance was created for: unforeseen and costly. No matter what other precautions you take, you must obtain adequate liability insurance.
Don’t skimp on your insurance policy. You want to avoid the bitter pill of paying premiums only to find that when something does go wrong, it isn’t covered because of the fine print. When selecting a new policy, consult with an expert on fine print, such as an insurance agent or attorney who understands what coverage your organization needs and what options exist.
Claims-made versus occurrence policies
Typically, insurance policies only cover incidents that happen while the policy is in effect. But “claims-made” policies are even more restrictive. They only cover incidents only if the claims are made while you have that policy. If you switch insurance after the incident, but before a claim is made, you won’t have coverage for that claim. This is particularly problematic for facilities that deal with children, because there is usually an exception to the statute of limitations that allows minors to wait till adulthood to make claims.
In contrast, “occurrence” policies cover incidents that happen while the policy is in effect, regardless of when the claim is made. If you switch insurance down the line, the policy will still cover incidents that happened while you had the old policy.
Some policies exclude coverage for athletic participants (typically everyone from players to coaches). This exclusion is unacceptable for sports facilities. After all, the majority of claims are almost certain to come from athletes and team staff. No matter how tempting the price tag, these policies are not appropriate for sports venues.
Riders and other coverage
In addition to general liability insurance, your facility should consider riders for other types of liability coverage. If your facility serves alcohol, you should purchase liquor liability coverage. You should consider some form of business auto liability coverage, which applies to accidents involving employees who are driving their personal vehicle for work purposes. If you have a large staff, you may want employee benefits liability coverage, which protects against claims of negligence in the administration of employee benefit programs.
It is impossible to completely eliminate all risk from a facility. There is no magic bullet that will remove all risk from your facilities. You must constantly analyze and assess what risks are most in need of being corrected. If you take reasonable, careful precautions and obtain adequate insurance, you can make risk liability manageable.
This article provides general information on facility liability matters and should not be relied upon as legal advice. A qualified attorney must analyze all relevant facts and apply the applicable law to any matter before legal advice can be given.
Patrick McGuiness is a partner at Zlimen & McGuiness, PLLC. He assists green industry businesses and organizations with compliance matters and advisory board assistance. He can be reached at firstname.lastname@example.org or 651-206-3203 Additional legal resources are available at Zlimen & McGuiness, www.zmattorneys.com.