asic principles of aquatic risk
management. He also said that the needs for aquatic risk management
were threats of negligence litigation, a trend for courts to impose verdicts
favoring the plaintiff, the need to better educate the public about aquatic
safety, a high level of awareness by the public about the dangers associ-
ated with aquatic environments, and stronger emphasis on preventative
practices rather than on reactionary measures.
Most litigation involving aquatics emanates from the injury of a partici-
pant, the injured plaintiff alleging negligence on the part of the institution.
Negligence, in such cases, is conduct that falls below the standard estab-
lished by the law for the protection of others against unreasonable risk or
harm. In order for negligence to exist, four elements must be present: (1)
the defendant must owe the plaintiff a legal duty of care, (2) the defendant
must breach that duty, (3) the defendant’s breach of duty must be the
6SMIJ – VOL. 8, Number 2, 2012
proximate cause of the plaintiff’s injury, and (4) the plaintiff must incur ac-
tual loss or damages. If the defendant institution can demonstrate that even
one of the elements does not exist, there can be no negligence. Fletemey-
er (2003) provided seven steps for increasing safety in aquatic risk man-
agement: step 1 identifying goals and objectives; step 2 organizing an
assessment team; step 3 identifying and measuring risks; step 4 provid-
ing effective warning; step 5 training staff; step 6 record keeping ; and
step 7 conducting performance and safety audits. Many hazards related
to aquatic environment are not easily recognizable. The above seven steps
really highlight the implementation of safety in aquatics. If aquatic directors
can follow all seven steps and are also willing to apply these seven steps
in their aquatic centers, it will not be difficult to see major improvements
and a reduction in the accident rate in the aquatic centers (Hsiao, 2005).
Risk management has been defined as a scientific approach to dealing
with pure risks by anticipating possible accidental losses and designing
and implementing procedures that minimize the occurrence of losses or the
financial impact of the losses that do occur. The concept of risk manage-
ment in recreation and sport began in the mid 1970s. The focus of risk
management in recreation is on limiting exposure to danger, harm, or haz-
ards to the facility. The most prevalent danger or harm that a facility man-
ager would attempt to minimize is injuries to patrons at the facility that cre-
ate the possibility of lawsuits (Styles, 2002).
Risk management was born of necessity – human, legal, and political.
As early as the late 1800’s, the American labor movement started to ad-
dress the dangers of mining and factory work. Laws were passed and
strikes were called as a result of existing mine and factory safety problems.
While there are still dangers, the combination of federal and state safety in-
spections, labor demands, protective equipment, and safety laws have re-
sulted in safer conditions in modern mining operations and factories. The
owners and operators of mines and factories now are faced with expensive
litigation if an accident occurs. The earliest organizations to practice risk
management were insurance companies whose techniques have been mod-
ified and applied by a variety of organizations including hospitals, public
schools, and universities.
Appenzeller (1998) stated that risk management has been associated
with business and especially the insurance industry for many years. Loss
control, exposure to loss, pre- and post- loss objectives, risk management
strategies, and risk management techniques were common terms in both
the business and insurance industries prior to the 1970s. In the mid-1970s
and especially in the 1980s and the 1990s, risk management became a fa-
miliar expression of a program designed to meet the sport litigation crisis
head-on. In the 21st century, risk management will become a close com-
panion to the sport business industry in its attempt to reduce losses and
THE ROLE OF RISK MANAGEMENT IN DECREASE OF LAWSUITS OF SWIMMING POOLS 7
exposures, while increasing the desire to make the sport business industry
safer (Lhotsky, 2006).
Risk management in sporting environments is not a new idea. A number
of authors identified the need for adopting risk management, safety prac-
tices and policies, but few have moved beyond traditional occupational
health and safety approaches. Risk management strategies have been used
in a wide range of sports (Otago & Brown, 2003).
Sharp (1990) listed three compelling reasons to institute risk management
programs in the physical education/athletic setting. The first reason is the
American public has assumed a litigious posture relative to athletics. The cli-
mate is extremely litigation oriented and lawyers seem to always be in search
of a “deep pocket” to cover costs of injury, regardless of who is at fault. The
second reason often cited concerns the judicial attitude toward liability and
sports. Liability has been expanded to cover those who administer these sport
and recreation programs. The usual defense of assumption of risk has been
severely eroded over the past few years by judicial interpretation. The third fac-
tor is the trend toward abrogation of government immunity. By providing a
safe, honest, and efficient environment, a business can reduce legal liability
and enhance the positive reputation of the business. Effective risk management
should identify as many liabilities and risk factors as possible, present alterna-
tive solutions, and make cost-effective recommendations (Lhotsky, 2006).
The importance of risk management as to the key liability and risk man-
agement trends into the 21 century. Some of the future trends forecasted
were as follows:
Liability issues will continue to manifest themselves as problems that re-
quire sound risk management plans.
Education in risk management strategies will continue to be in demand
by sport/recreation managers in order to provide safer programs.
Risk management will continue to be a key element in the design of
new recreational sport facilities.
Professional preparation in liability and risk management will become
more important for students pursuing careers in sport management.
Risk management planning will take on increased important to recre-
ational sports programs.
More recreational sports programs/agencies will develop comprehensive
risk management plans.
Increase in willingness of participants to engage in litigation to resolve
issues related to participation in recreational sports.
There will be an increase demand for employee certification in special-
ized activity programs.
There will be continued growth in recreational facilities.
High-risk activities will become more popular in the years to come
(Styles, 2002).
8SMIJ – VOL. 8, Number 2, 2012
Although the management of liability risks for public agencies is of re-
cent origin, the practice has been used in the private sector for many
years. The earliest organizations to practice risk management were insur-
ance companies whose techniques have been modified and applied by
hospitals, public schools, and universities. These groups dealt primarily
with financial risk management. However, the management of financial risks
alone would not be sufficient for the unique needs of the sport, physical
education and leisure industries. Therefore, the sport industry must focus
on not only financial risk management but also programmatic risk man-
agement. For example, a loss in the insurance industry is financial, but a
loss in the sport industry must also encompass the possibility or risk that
a participant would suffer harm. It is acknowledged that a participant or
employee injury could result in a financial loss to the agency or organiza-
tion, but the overriding reason for risk control should be moral responsibil-
ity as related to the injury of another, as well as the legal duty to provide
a safe environment for participation (Aaron, 2004).
Because of the increase in the volume of use and the types of activities
performed, these facilities have a wide variety of exposure to lawsuits in their
daily operations (Mulrooney & Farmer, 1995). There was a time when litigation
was not a major issue for recreational sport injuries because it was accepted
that participants assumed the risks of participating in a physical activity. How-
ever, in todays society, lawsuits against recreation businesses are common, as
there has been an increase in litigation regarding injuries sustained in recre-
ational activity and competition (Burnstein, 1994; Cotton, 2001a).
The focus of risk management in recreation is on limiting exposure to
danger, harm, or hazards to the facility. The most prevalent danger or harm
that a facility manager would attempt to minimize is injuries to patrons at
the facility that create the possibility of lawsuits. Hence the goals of risk
management are to enable organizations to offer the activities and services
that they deem desirable in a safe environment and to reduce the possibil-
ity of a lawsuit and monetary losses while operating a recreation facility.
Based on the theory and practice of risk management from the insurance
industry, sport and recreation professionals have identified the following el-
ements as being essential for success of the risk management practices:
risk identification; risk assessment; risk treatment; and risk implementation
and standard operating procedures (Styles, 2002).
Those who manage physical education, athletic, and recreation pro-
grams have a number of legal duties that they are expected to carry out.
Among these is an obligation to take reasonable precautions to ensure safe
programs and facilities. According to Hronek and Spengler (2002, p. 273),
“the law recognizes a duty owed by coaches, recreation managers, and
their staff to provide safe facilities for both participants and spectators”.
Physical educations and sports facilities that are poorly planned, designed,
THE ROLE OF RISK MANAGEMENT IN DECREASE OF LAWSUITS OF SWIMMING POOLS 9
or constructed may lead to many problems for program leaders in those fa-
cilities. A poorly designed facility may limit the programs that can be of-
fered; make the facility harder to operate, maintain, and supervise; and sig-
nificantly increase the participant’s exposure to hazardous conditions.
These factors can lead to a greater likelihood of injury and can increase
the organizations exposure to claims of negligence (Seidler, 2006).
It has important risk management applications for physical educators
and sport managers. Physical educators and sport managers must be pro-
tective in protecting their participants from unreasonable risk of harm they
should schedule regular inspections of fields and other playing surfaces be-
fore participant use. In addition, equipment should be checked regularly to
detect any damage or wear that would make the equipment unreasonably
dangerous for participant use (Carroll & Connaughton, 2006)
Methodology
The statistical population of the research included 310 managers of pub-
lic and private swimming pools which 119 were selected as statistical sam-
ples by means of random sampling. The research method was descriptive
and survey, and in measurement form. 2 questionnaires were used, on re-
lating to demographic data and general information and the other to risk
management practices and their validity was determined by alpha kronbach
method (./85). The required information was collected by personal interviews
during the time acting of managers in pools gathered and the data was an-
alyzed by using person correlation coefficient. The study was designed to
investigate the risk management status, and associated legal concerns in
aquatic centers in Tehran. Data were obtained through a 45-item question-
naire administered to 119 directors of aquatic facilities in Tehran.
Results
Table 1 shows that the population was primarily male and only 27 or
22.7% of the 119 participants were women.
Table 1.
Gender of Respondents
(N = 119)
Male Female
92 27
10 SMIJ – VOL. 8, Number 2, 2012
Table 2 presents activities most often found in the pools in Tehran were
recreational (Offered by 117 institutions) and Basic swimming class (offered
by 79 institutions). Risk management plans existed in only 52 (43.7%) of
the facilities. Nearly 42% of the institutions reported three or more acci-
dents/injuries per year.
The majority of the incidents occurred in the locker room or the pool
deck. Only 5% or 7 incidents occurred in the water (Table 2). Despite the
fact that nearly half of the institutions had accidents, only 22.6% had been
sued (Table3 and 4).
Table 2.
General Information: Activities and Risk Management Plan
Activities Offered by Swimming Pool N
recreational 117
Scuba diving class 5
Water aerobic class 38
Basic swimming class 79
Water polo 12
Lifeguard training course 35
CPR certificated course 17
hydrotherapy 22
Risk management plan N
Yes 52
No 67
Table 3.
General Information: Accidents/Injuries Frequency
Number of Accidents/Injuries in Last 12 Months Percent (N = 119)
0 45.4
1 15.1
2 8.4
3 8.4
4 6.7
5 2.5
6 or more 13.4
THE ROLE OF RISK MANAGEMENT IN DECREASE OF LAWSUITS OF SWIMMING POOLS 11
Location of Highest Number of Reported Percent (N = 119)
Accidents/Incidents
Diving board 35.3
Locker room 23.5
Pool deck 25.1
Jacuzzi 10.1
Sauna 10.9
Table 4.
General Information: Litigation Status
Past Lawsuits Percent (N = 119)
No 77.3
Yes 22.7
Number of Times Institution Has Been Sued Percent (N = 119)
0 77.3
1 14.3
25
.0
3 or more 3.4
Results of this study show that significant relationship existed between
incidents of accidents/injuries and lawsuits in swimming pools in Tehran
(Table 5). From other results of this study is significant relationship exist-
ed between risk management practice and accidents/injuries and lawsuits
(Table 5). Also significant relationship existed between risk management
practice and lawsuits and lawsuits (Table 5).
Table 5.
Person correlation coefficient between the accidents/injuries
and lawsuits and risk management
Variable accidents/injuries lawsuits Risk management
practice
accidents/injuries 1 ./437(**) -./269(**)
./000 ./003
12 SMIJ – VOL. 8, Number 2, 2012
Lawsuits ./437(**) 1 -./234(**)
./000 ./010
Risk management -./269(**) -./234(**) 1
practice ./003 ./010
Discussion and Conclusion
Risk is a peril or the possibility of exposure or harm. Risk management
has been defined as controlling the financial and personal injury losses
from sudden, unforeseen, unusual accidents and intentional torts. Appen-
zeller (1998) stated that risks are inherent in sport and even the safest pro-
grams can never avoid accidents and injuries. The law expects that sport
managers develop risk management and loss programs to ensure a safe
environment for all who participate in sports.
The safety of facility event attendees, patrons, spectators and event par-
ticipants is of primary concern to the facility manager (Madden, 1998). If a
facility manager does not keep the facility safe, injuries to attendees, pa-
trons, spectators, and event participants are bound to occur. Although
there are many areas of law that are important to a facility manager, the
greatest numbers of lawsuits brought against a provider (school, munici-
pality, private enterprise, or non-profit association) are based in negligence
liability (van der Smissen, 2001).
While lawsuits cannot be prevented they can be minimized when em-
ployees understand negligence principles and practice good management
(Kaiser, 1986). Therefore, it is essential that a facility manager today un-
derstand the elements of negligence (van der Smissen, 2001). The follow-
ing will briefly examine negligence liability and some law topics related to
negligence.
Negligence can be defined as carelessly performing a duty or careless-
ly failing to perform a duty that results in injury to a participant or damage
to property (Seidler, 1999). In order to be found guilty of negligence, four
elements need to exist: duty, breach, cause, and harm. There are several
elements of negligence. Each of the four negligence elements has to be
present for a person to recover under a negligence claim. The four ele-
ments are:
1. Owing someone a duty.
2. Breaching that duty.
THE ROLE OF RISK MANAGEMENT IN DECREASE OF LAWSUITS OF SWIMMING POOLS 13
3. The breach of that duty was the proximate cause of the person’s in-
jury.
4. The person was actually injured (van der Smissen, 1990).
The increase in lawsuits in the leisure and recreational area is due to
several reasons: increased participation in recreation; an increase in year
round activities; new technology and more sophisticated equipment; and in-
creased accessibility to legal services (Baley & Mathews, 1984).
The increase in litigation in recreational settings creates a need for
recreational professionals to reduce risk that may lead to injuries and fi-
nancial losses. Risk management and its application is form of loss control
and has been identified by professionals in the recreational industry as a
need within the organizational structure of a recreational facility (Giles &
Gonsoulin, 1991). The most prevalent danger that a recreational facility
manager needs to minimize is the number of injuries to patrons, and the
concomitant lawsuits. Therefore, the obvious goal of risk management is to
reduce to possible monetary losses when running a facility (Mulrooney &
Ammon, 1995).
Risk management has been identified as the ‘best buy’ in sports injury
prevention and an integral part of best-practice sport and leisure manage-
ment systems (Donaldson et al, 2009). Risk management is a procedure to
reduce potential legal liability. It is a proactive system which attempts to
address potential problem areas before they actually lead to reactively de-
fending legal proceedings. The aim is a safer environment and “legally
safer” operational procedures. Education of all people involved, their ac-
ceptance of the importance of risk management, and open communication
of ideas is vital to a risk management plan’s success. While the law now
affects the conduct of sports greater than ever before, don’t see this as a
negative, but as a positive reason to take the initiative to implement safe
practices and risk management programs. There can be a great sense of
achievement in knowing that you are satisfying your legal, moral and ethi-
cal duties by providing good, safe and effective sporting services. It really
is all about good business.
References
Aaron, T. C. 2004. Factors affecting the performance levels of risk man-
agement behaviors of Florida high school athletic directors. Doctoral
Thesis, The Florida State University College of education.
Carroll, M. S. & Connaughton, D. P. 2006. Proper Maintenance of Athletic
Fields and Legal Liability. Journal of Physical Education, Recreation &
Dance; May/Jun 2006; 77, 5; Research Library pp: 10.
14 SMIJ – VOL. 8, Number 2, 2012
Girvan, G & Girvan, J. T. 1993. Risk management practices in athletics-A
content analysis. Journal of Physical Education, Recreation & Dance; 64,
4; Research Library, pp: 26.
Hsiao, R. 2005. Analysis of risk management practices and litigation status
in aquatic centers. Doctoral dissertation, Florida State University College
of Education, Copyright by ProQuest Information and Learning Compa-
ny.