|
 Just
a Matter of Time: The Duty to Address Reasonably Foreseeable Risks
Steven A. Adelman
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=VxTxC
(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=VxTxC 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. |
