Note: This post initially appeared at Adelman on Venues
I am in teaching mode. This week I lead the Risk Management and Facility Management Law School courses at the Academy for Venue Safety & Security in Dallas. Next week, it’s off to Norman, OK to speak at the Severe Weather Planning and Preparedness course at the National Weather Center. So I will be discussing the legal “standard of care” in various different scenarios related to live events. All of which has me thinking about reasonableness.
Faithful readers and students have long known that everyone has a legal duty to behave as a “reasonable person under the same or similar circumstances.” This is a fundamental concept in tort law. But what does it mean to be reasonable?
History matters. If something has usually happened without incident in the past, even an occasional problem will generally be seen as the exception that proves the rule that the conduct is reasonable. Conversely, if the same issue keeps cropping up, a reasonable person should deal with it, don’t you think? Reasonable conduct is usually not unprecedented, totally out of the blue, unrelated to the purpose of the event, or easily avoided without detracting from the patron’s experience.
New is not necessarily bad. The law changes glacially, as do many people’s attitudes. As much as history matters when determining the reasonableness of present actions, change is not per se unreasonable. New activities do, however, put a greater emphasis on undertaking reasonable decision-making processes, which will tend to yield reasonable decisions. And if you neglect to document the issues you considered on the way to your wise risk management decisions, you may still be look unreasonable if something goes wrong. As we all learned as children, you get full credit only if you reach the right answer and show your work.
Reasonableness is for everyone. Ignorance is not a compelling defense for event patrons any more than it is for event professionals. If a guest could have prepared for an aspect of the experience through a modest amount of due diligence (Youtube, anyone?), they will have a tougher argument that the behavior was not reasonably foreseeable to them. Think about this next time you review the information available on your web site. By providing more information, you may also bolster your defense to a future legal claim.
In the run-up to the just-completed Winter Olympics in Sochi, I was interviewed on TV a number of times. (Always fun, although the East Coast morning news shows begin very early here in Arizona.) In addition to speaking about athlete and fan security in the face of the Chechen terrorist threats, I was also asked about the safety of Sochi’s new slopestyle course.
During practice runs a couple of days before the slopestyle competition began, a leading medal hopeful had a bad fall that knocked him out of the competition. Some athletes said that the last jump exposed them to serious injury. Officials tweaked the course to address the safety concerns. I was asked if this was reasonable.
Well, yes. We can all agree that it’s better to address safety issues that are brought to your attention than to ignore them. And that’s true even if you have to make changes shortly before the event is set to begin, right? That is the reasonable response, even if it may have the outward appearance of scrambling to get your act together at the last minute. So I gave a measured response which largely defended the venue’s decision to make further safety improvements.
Although my way may not grab as many headlines as someone whose hair is on fire all the time, I would rather be known as the “Reasonable Man” than a “Master of Disaster.” Wouldn’t you?
Steve Adelman, Attorney & Venue Safety Expery