UW-System

Proactive Risk Management Meeting

Tuesday, September 27, 2005

--The following are brief notes of interest by Jim Rogers

Speakers: Kim Novak (Arizona State University), Bill Hoye (University of Notre Dame)

Attendees: About 65 individuals from throughout the UW-System campuses with several from legal councils, administration, about 1/3 from risk management offices, and about 1/3 from student services areas. There were a few lawyers. There were no faculty.

Tort Law Updates

• Need to show you provide “reasonable protection” from “reasonable harm” for university activities
• Hendrickson vs Montana, 3 year old child fell 20 foot through University library stairwell banister, three weeks after another child fell through 15 inch gap. Jury reduced claim by 20% due to mother’s negligence, appealed to Supreme court and upheld. Stated had duty for care of child, knew of risk, didn’t resolve it.
  
  
• Galveston, Texas – Student studying abroad in Peru, student got sick and went to Lutheran facility for care, student told to get immediate appendectomy by doctor and was sexually assaulted while under local. Court did not enforce liability waiver form saying it was a non-negotiated contract. Court disallowed medical consent form and said emergency medical consent form created a duty for care (but court may have been searching). Result: Do not leave someone behind.
  
  When reviewing a court case related to risk and ask:
• Can what happens in a given case happen on our campus?
• What steps can we take on our campus to reasonably reduce our harm?
• When something happens on our campus, are we ready to respond?

Insights/Recommendations

• Do regular inspections of areas to show that you are taking steps to take care of safety problems
• Have a protocol in place that when risk management issues are observed, they are referred for follow-up
• When an accident does occur ask yourself common sense questions--what can be done to reduce a similar accident in this situation?
• When making repairs, do not follow building codes for when facility was built; rather, use current codes even if not required (to fulfill)
• If desired, ask the University legal/counsel to write a letter asking that University counsel is asking for an investigation and report of the accident so that it is protected under university client/attorney privileges
• For internships off-campus: consider having interns choosing locations, having students go with buddies, ask for security staff to provide assistance if available/helpful, warm students of dangers, have potential dangers written.
• Do not leave behind an injured student. Tell faculty/staff this. Oversee medical care as well as possible.
• Create a plan on for what to do when someone is injured (who does what, how to handle injuries, back-up communications)
• When traveling abroad have good medical insurance (24 hour care, etc.)
• Have emergency medical consent include legal waivers
  
  
• Remain current in your field (if in recreational sports be aware of recreational sports materials)
• Strategically evaluate trends in higher education
• Know and operate according to the ethical standards of your profession
• Provide opportunities for your staff to engage in professional development
• Be aware of and operate within the organizational structure of your unit or service area
  
  
• Encourage campus leaders to work with each other collaboratively
• Educate stakeholders about the legal implications of their actions
• Disseminate information that informs people of policies and assists in making educated decisions
• Train everyone to identify warning signs and regularly evaluate programs
  
  Waivers
• Courts disfavor waivers in general and will look at ways to not enforce. Statements by courts may say:
  if a waiver is mandatory and not negotiable it therefore is not valid. All risks for that specific activity should be delineated in the waiver.
  A January 2005 Wisconsin Supreme Court ruling (Swimwest Fitness Center in Madison) was ruled invalid due to being overly broad, didn’t include opportunity to negotiate the waiver, and waiver was on the same page as the release
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