In order for a defendant to be found negligent in a court case where one party is suing another because they have suffered some type of loss, the burden of proof is on the plaintiff to establish that: 1) they were owed a duty by the defendant; 2) the defendant failed to take reasonable precautions, or breeched the required standard of care; 3) that this breech was the direct cause of their loss; and 4) that they have actually suffered some type of loss.
Sections of risk management texts on defenses to negligence usually focus on legal defenses such as assumption of risk, contributory negligence, and governmental immunity. While these are all important concepts for parties who find themselves in a courtroom, a more proactive defense against negligence is to reduce the chance of ending up in court by insuring that you have acted reasonably and not breeched any standard of care in providing a safe environment for your patrons.
Many accidents at aquatic facilities are un-preventable, and no matter how hard we try, patrons will still suffer injuries at our facilities. Since we cannot eliminate all injuries at our facilities, the key to reducing our exposure to risk is to minimize the number of preventable injuries and diminish the severity of the accidents that do occur. Since lifeguards are usually the individuals responsible for maintaining safety at aquatic facilities, they are an important component in insuring that our facilities are safe and that we have acted reasonably to protect the welfare of our patrons. Furthermore, even if lifeguards are personally responsible for an accident or injury through willful, wanton, or reckless misconduct, few of them have the "deep pockets" required to make a lawsuit worthwhile. Therefore a common strategy of plaintiff's lawyers is to go after the agency that hired the lifeguard on the basis that they did not meet the reasonable expectation of properly training their personnel.
Training in Question
It is easy to assume that all lifeguards who have been trained and certified by a reputable organization such as the American Red Cross, United States Lifeguarding Association, or Ellis and Associates are ready to work in their facility. However, the consideration of recent research findings on lifeguard behavior and perceptions indicate otherwise. The data summarized below is a portion of the findings from the National and International Lifeguard Rescue and Resuscitation Surveys completed between 1994 and 1998.
* In 1998, 63% of lifeguards rated their on the job or in-service training as more valuable than what they received from their certifying agency.
* While 93% of the 1998 lifeguards in the sample rated their training as either "sufficient" or "more than sufficient," 7% responded that their rescue training was either "very insufficient", "not very sufficient" or they just "weren't sure". It is very likely that a portion of these lifeguards will someday face rescue situations.
* Although the majority (73%) of 1998 guards rated their non-equipment rescue training as sufficient or above, over one quarter of the sample reported that their rescue training without equipment was inadequate. This is especially relevant when considering that 98% of the lifeguards in the sample expressed confidence that they could make a rescue using equipment, compared to only 88% who indicated confidence without equipment.
* 33% of the guards participating in the 1995 study reported that it took them over 10 seconds to make a complete visual scan of their specific swimming zones.
* A quarter (26%) of the 1995 sample reported that they were not aware of any specific scanning techniques, and two-thirds (66%) of this group said that they felt additional scanning training would be beneficial.
* Only 25% of lifeguards in 1995 reported that they were very well trained.
* Despite the fact that 21% of lifeguards characterize their roles as either babysitters or rule enforcers, 50% of the guards in the 1998 sample reported making a real rescue (not a tired swimmers assist) in the last 12 months. …