It has long been established, both in Common Law and by statute that the employer and the landlord are in a superior legal position over their employees and tenants, respectively. As such, the standard of care is higher for them than for their employees and tenants. Since this is true, it becomes very important that those who are in the position of employer and landlord thoroughly review their policies toward others, as the courts will likely take the side of the weaker party. How much more is this so very true than for a mission’s standard of care toward their residents (“guests”, using some missions’ vernacular).
When a party is injured, the matter may be reviewed by a variety of different administrative agencies. However, should the injured party not be satisfied with the outcome, they may always turn to the courts as their last resort. How will the courts view the injury of your residents/guests? Typically, with a similar view as they would the employer and landlord. Your mission is the stronger party, since, after-all, it is your facility, and you owe a duty of care toward those who enter the premises, whether employee or resident/guest.
Since a high degree of care is owed, your liability in the face of an injury is great. Your defense will help to balance the scale, provided that you are able to prove that the injured party could have, or should have, known the risks inherent at your facility, ignored warnings, and therefore, contributed to their own injuries. In example, does your mission allow the use of free weights in an exercise room? What protection do you offer the person who chooses to lift weights by themselves? Certainly, common sense might dictate that a spotter be present should the weight lifter overtax themselves. But, do you have signs posted requiring this safely procedure? Do you require the lone lifter sign a waiver? Do you monitor the room or have a camera in place?
None of these measures assure the absolute avoidance of liability, but the more pre-cautions you have in place, the better your prospects of a raised defense that will help to defend against the allegation of negligence. At the very least, you should write a procedures manual and have it regularly reviewed and enforced. The lack of a written procedure allows for opportunity of inconsistencies in your operation and the level of care provided your resident/guests. Strong, well-thought-out, consistently applied safety procedures toward those in your care, whether employees, licensee, invitees or guest, provides the best assurance of risk avoidance.
Latest posts by Brian H. Merriam, CPCU, ARM, AAI, President (see all)
- The Wage & Hour Threat to Your Organization - January 10, 2019
- Active Shooter Response: How to Survive a Shooting Event - September 1, 2018
- When Rising Water Is Called a Flood - March 14, 2018