Liability is a huge issue for sports facilities, and all too often the field plays a role in litigation. We asked Dr. Herb Appenzeller and Dr. Gil Fried, sports law and sports management professionals, for their insight on how sports fields fit into the big picture of facility and event liability.
Both of these experts pointed to three main areas of potential litigation involving sports fields. The first is related to the initial design and the field construction or installation and any subsequent renovations. The second area centers on field use that is different from that for which the field was designed. The third area addresses maintenance issues and field conditions, with failure to inspect, identify potential problems and rectify them most frequently cited.
Adequate and appropriate, reasonable and proper, and foreseeable and fixable are phrases that popped up repeatedly when discussing field issues with these experts. They noted that it starts with field design and installation; whether the surface will be natural grass or a synthetic; and involves the selection of qualified manufacturers, suppliers and contractors that have sports field-specific expertise. That’s followed by the testing of materials and monitoring of processes during all phases of the field construction or installation.
Dr. Appenzeller says, “Construction issues in areas of liability affecting players address some aspect of the field surface that could lead to injury. Once the problem is identified, such as rocks rising to the playing surface or pockets of wet, slippery conditions, the underlying cause must be determined in order to develop strategies to rectify it. Ideally, the field designer, contractor and facility owner will work together to achieve a solution before an injury occurs.
“Sometimes a design flaw can be minimized with minor adjustments. One issue that we’ve identified with a few football stadium fields is placement of a brick wall just beyond the end zone; a situation with injury potential should a player moving at full speed run into the wall. While the cost of reconstruction would be prohibitive, the simple step of installing adequate padding to cushion any potential impact can be sufficient to alleviate the risk. In another instance, four players had already sustained minor injuries by running into the outfield fence on a baseball field where there was insufficient space to install a warning track. By mowing the grass lower in a 10-foot swath adjacent to the fence, and painting a white line at the edge of the difference in turf mowing heights, the sports field manager was able to create a warning area that worked effectively.”
On inappropriate field use, one issue that is appearing more frequently in recent years is inadequate field size. Dr. Fried says, “Because of the larger layout of a soccer field as compared to a field designed for football, there might be overspill. Often it’s the area just beyond the extended field that raises a concern of enhanced risk. An issue arose at one college where the expanded field didn’t leave sufficient space for disabled patrons to comply with ADA regulations. One administrator suggested pouring a cement pad by the field, which would give attendees an excellent view of the play. The problem was the proposed cement area was only a foot away from the end line, which would have exposed the players and anyone seated in that area to significant enhanced risk.”
While there may not be published industrywide standards for all aspects of sports fields, there are generally accepted reasonable expectations that apply. Athletes anticipate a level playing field, free of debris, holes, divots, depressions, ridges, lips and other potential safety hazards, including loose seams, worn patches or uneven infill on synthetic fields. Field maintenance should focus first on safety, with the field surface inspected prior to play. When problems with the potential risk of injury are identified, they should be rectified before play begins. The challenge is consistently providing fields that meet or exceed those expectations and documenting that such action has occurred.
The ECT approach
For years, Dr. Fried has been advocating the “ECT” approach as the foundation for a comprehensive risk management program. Named for the “ECT” ending of each element of the step-by-step approach, it brings focus to those unsure about where to start and helps ease the apprehensions of those concerned about the scope of the project.
He says, “I teach people to look at the process as they would if someone would be coming into their home. Where would they enter? What might they encounter as they interacted with the space as they moved from room to room? It’s a matter of looking at a total facility, or any segment of it, in the same manner.”
The steps he has developed for this process are outlined here, in condensed form.
- Reflect: Determine your primary interest in safety and develop a comprehensive plan to address it.
- Deflect: Utilize appropriate strategies of deflection (contracts, insurance, etc.) as a tool to help manage ultimate financial and legal liability while recognizing that does not absolve you from taking proactive steps to reduce the risk of a disaster.
- Detect: Critically examine the facility to determine what type of disasters could occur and what issues, occurrences or events will trigger the disaster.
- Inspect: Inspect the information gathered through the detect phase, seeking potential problem areas and developing potential solutions.
- Correct: Whenever problems or concerns are identified, correct them. Proceeding with a problem is an invitation for disaster and potential liability.
- Reinspect: After problems have been corrected, reexamine the concern to ensure the correction is appropriate and adequate. Once a facility manager knows about a problem they cannot hide behind the excuse that they ordered something to be corrected and thought that it was corrected.
- Reflect: Following an event, analyze what occurred, gathering input from all parties involved, jointly exploring methods of improvement.
Dr. Fried says, “The key component is the detect phase, as the facility management examines their premises and operations to identify what safety concerns might exist. That includes examining and adhering to all applicable association, governmental and/or industry standards. Remember that the primary ways to reduce a risk are through avoidance, prevention, minimizing the frequency of occurrence and/or reducing the severity of the loss.”
Inspect and document
Dr. Fried says, “The process of identifying and correcting problems to produce a safe facility for events takes time, effort, personnel and money. Whether dealing with facilitywide issues or strictly field-based issues, the key is to develop a written plan and then follow the plan.”
The format of the inspection form or checklist can vary according to your program, unless otherwise mandated. In some cases, precise forms of inspection and documentation of that inspection are a requirement. The American Softball Association (ASA)/USA Baseball insurance program offerings are introduced with “General Maintenance and Condition of the Field Minimum Safety Standards.” The 2010 ASA Field Owners Liability Insurance Plan enrollment form notes that, “Field owners are the main targets of softball lawsuits,” and further states that the main basis of lawsuits is field conditions. It states, “All field owners covered under this liability insurance program will be required to conduct inspections of all insured fields and surrounding premises.” The ASA-provided inspection forms (ASA/USA Softball Field Safety Checklist) are to be used, and the field owners are required to keep the completed forms on file. The application form states, “Noncompliance with these inspection procedures could result in termination of coverage.”
Whatever the format, the same basics apply for daily, weekly and seasonal inspections. Conduct the inspection reviewing every item noted. Identify and record problem areas, rectify those problems and keep detailed records of the process.
The qualifications of the sports field manager and management staff are a consideration, with the terms properly trained and experienced added in areas ranging from general turf care to surface-specific issues on synthetic fields, to safety standards in equipment operation and the handling of control products. Generally, questions of qualification would arise only in conjunction with the identification of a potential liability situation concerning the field.
When an area of potential liability is widely publicized, those directly involved with a similar situation may be held liable whether they have been directly notified or not. Dr. Appenzeller says, “Unanchored soccer goals can be such an issue. From 1979 to 2008, 34 people were killed and 58 sustained serious injuries from unanchored soccer goals. Litigation has taken place in some of these cases, with the unanchored goals deemed an attractive nuisance and sizeable damages awarded. A safety audit of one university discovered that some football game tailgaters had been directed to an overflow parking area adjacent to the school’s recreational soccer field. There were 15 unanchored soccer goals on that field. If the tailgaters had allowed their children to play at those goals and an injury had occurred, the subsequent lawsuit could have closed down that school.”
Inspection and documentation are important from the personal perspective, too. Budget cuts that impact the maintenance program to the level of negatively affecting field quality could create safety issues. Showing the allocation of resources in the most effective manner possible could support a definition of “adequate and appropriate” should litigation occur.
The safety committee
Even with a comprehensive risk management program in place and functioning well, you shouldn’t become complacent. Dr. Appenzeller recommends formation of a safety committee to continue to assess conditions, prioritize the risks and develop the strategies to rectify them. He says, “Include the facility manger, the sports field manager, the AD or head of physical education and someone from sports medicine, either a certified athletic trainer or medical doctor, so nothing falls through the cracks. It makes all of them work together.”
Whether assessing a full college campus or only the stadium and practice facilities, he suggests setting the date and assigning each individual a different section of the area to do their walk-through, once in the early morning, again around the noon hour and a third time at night. “Then pull everyone together to review the assessments,” says Appenzeller. “Initially, plan to do this three times a year and change the individual assignments each time.
Issues addressed can be added to the daily, weekly and/or seasonal maintenance checklists at the committee’s recommendation to ensure they are monitored with appropriate action taken and recorded.
Both experts point to the dangers of procrastination or avoiding change, thinking you’re invincible. Dr. Fried says, “When people tell me they’ve heard me speak and picked up some great suggestions, I’ll always ask which they implemented. Too often the answer is ‘None yet, but I’m thinking about it.’ That’s not going to impress a jury should an incident occur.”
Make it happen
When determining whether to have an outside firm audit field safety issues, consider the potential liability of not doing so. Dr. Appenzeller says, “It’s much better to be proactive than to have a problem and ask what should have been done. If the facility won’t, or can’t, create a budget for an outside inspection, arrange for another qualified sports field manager to inspect your facility in exchange for inspecting theirs. That gives each of you a new set of eyes to catch a potential problem.”