Duty of Care: It’s Better to Be Smart than Dumb
A VENUE OR EVENT PROFESSIONAL WHO UNDERSTANDS THE RISKS IS MORE LIKELY TO MAKE REASONABLE DECISIONS BASED ON ESTABLISHED CRITERIA, SUBJECT MATTER EXPERTISE, AND CALM DELIBERATION.
By Steven A. Adelman
During my presentation at the recent ESA Severe Weather Summit in Norman, Oklahoma, I was asked whether event professionals who gain a better understanding of weather-related risk management bear a greater duty of care than people who do what they do without knowing why. The Captain Obvious in my brain blurted out, “It’s better to be smart than dumb.”
Rather than leaving the joke hanging, however, I felt obliged to explain the legal implications, which feel particularly relevant in a month that also included me leading several sessions at IAVM’s Academy for Venue Safety & Security.
Faithful readers know that basic tort principles impose on everyone the duty to behave reasonably under the circumstances. Everything that forms the context of an event helps shape the definition of “reasonable” for those circumstances.
At AVSS, I focused on crowd management and security risks at bricks and mortar venues; at the Severe Weather Summit, I emphasized the importance of having a trigger chart and action plan that addresses the areas over which an entity has authority at a show. Either way, the law imposes a duty to behave reasonably under your actual situation.
Ignorance is No Defense
Back to the original question. We all know intuitively that ignorance is no defense. Here’s why: When lawyers retrospectively review a set of facts, which happens in every lawsuit, we first argue about what a hypothetical reasonable person would have done under those facts. The parties’ dueling standard-of-care experts advocate for what they believe “reasonable” conduct would have been. Then the lawyers compare the litigants’ (mis)conduct against this purportedly objective standard.
The analysis works the same way for superior knowledge or awareness. The experts still try to identify the reasonable person under the circumstances. The lawyers still measure the parties’ actual conduct against that standard. “Reasonable” conduct is a fixed point; actual conduct is the variable.
Therefore, if the only variable is your behavior, wouldn’t you rather be smart than dumb? Put another way, a venue or event professional who understands the risks of a general admission crowd or ominous skies is more likely to make reasonable decisions, meaning decisions based on established criteria, subject matter expertise, and calm deliberation – in short, having a good reason. Right?
Informed Decisions, Effective Actions
When you have more information and are more sensitive to its significance, you will tend to recognize life safety risks and move people out of harm’s way sooner. You will activate your emergency plan based on criteria you defined on a quiet day when you had time to think clearly, rather than “going with your gut” in the middle of a chaotic command center as your event goes wrong. You will post more or better-positioned event staff. You will have private meteorologists giving you accurate, current information specific to your site. You will do your job, and only yours, safe in the knowledge that other people in the incident command structure are diligently plugging away at tasks within their expertise. This is how you avoid litigation in the first place and, if something does happen despite your best efforts, how you make it easier for a guy like me to defend your actions.
In the interest of completeness, let’s briefly consider the fate of someone who should know better but either actively or passively allows unsafe things to happen on their watch.
It is my observation that even well-meaning people make mistakes all the time. When those mistakes don’t cause any harm, they should yield nothing more than the relieved recognition of a teachable moment. Because we are all fallible, the only indefensible person is one who repeatedly makes the same mistakes with no apparent recognition of a problem. The law takes a particularly dim view of such people.
A reasonable person continues to learn their craft until they are done practicing it. This is why we attend and teach at countless summits and conferences and academies every year: to do better and to become smarter.
It is important to be smart about your job in this industry, not merely because you will be easier for some lawyer to defend in court, but also because you may one day save a life.
And isn’t that a great reason not to be dumb?