September Cover
THE
BULLETIN
Volume 81 | Issue 5
September 2013

Risk and Negligence: Eight Student Organization Liability Issues that Typically Go Unnoticed

Bill Tourville

Each day student organizations, both official and unofficial, conduct activities, creating myriad opportunities for something to go wrong. In such instances, colleges and universities can be and have been subject to tort claims and extensive liability. However, much can be done in student unions, adventure education, and activities to better prevent accidents while limiting liability for institutions and professionals.

About Liability

The level that a college or university can be held liable often is directly affected by the relationship existing between that student organization and the institution. Is the organization registered? Does it have a full-time, part-time, or faculty advisor? What type of training does the university offer for its organizations, individual students, and advisor? And in this balance, it is worth noting that the more involvement an individual advisor, office, or campus has, the more it puts the institution at risk. Therefore, it is imperative that professionals weigh what is best for all parties. In the 2009 edition of The Law of Higher Education, William Kaplin and Barbara LeeRM - CC reported that the majority of cases ruled against colleges and universities were claims of institutional negligence—in other words, not knowing or doing enough to protect the students or the organization.

Transferring liability is the process of informing participants about the liability and risks associated with the event or activity they are about to engaged in doing. Basically, forewarning participants of the risks involved so they make a conscious decision whether to participate. Waivers and releases are the most common method to transfer liability. Waivers cannot serve as blanket liability coverage; thus, they need a specific start date, end date, time, location, and possible activities or potential injuries including death. They should also indemnify the institution against future claims associated with that event. For example, “I, individually, and on behalf of my heirs, successors, assigns, and personal representatives, hereby agree to indemnify, defend and hold harmless, and forever discharge the college.” Signifiers for those who have signed waivers can also be used (e.g., wristbands). Ideally, minors should have a guardian co-sign waiver releases.

Another common practice to transfer risk is through insurance coverage. General liability insurance covers up to a certain amount for accidents and injuries. While neither waivers nor insurance cover liability in cases of egregious wrongdoing or future misconduct, insurance does cover negligence (e.g., holding an event during a thunderstorm). Most institutions carry their own liability insurance for incidents that occur during campus activities or student organization business.

When an activity has a higher potential for increased risk, union and activities professionals can request that the institution be named an “additional insured” through a contracted vendor. These type of events include inflatables, stage/lighting rental, transportation, fireworks, live animals, and third-party repairs. It is recommended to confer with campus risk management or legal counsel on which events should require a certificate of liability insurance with the institution named as additionally insured.

Additionally, campus professionals should confirm the amount of insurance required by their institution. Liability insurance comes at different levels and types. Most policies have a per-occurrence coverage (each incident) and aggregate coverage. There are other types of insurance for food, vehicles, and umbrella coverage as well.

Waiver and liability insurance transfer liability, but union and activities professionals are responsible to help limit liability. While it is easiest to eliminate activities in extreme cases, college union and student activities professionals can moderate risk by providing training, resources, and implementing policies. The following scenarios explore ways to reduce liability due to negligence by the institution, advisor, and activities through policies, training, and best practices from outside and inside higher education.

Scenario 1: Sports Clubs and TrailersRM - Hitch

Many of the sport club organizations registered through the campus activities office regularly pull trailers carrying equipment to their competitions and matches. You overhear one member of the organization asking another member what a ball, hitch, or wiring harness are. It’s her dad’s trailer, and he didn’t tell her how to hook it up to the university van. You get that sinking feeling in your stomach because you aren’t confident in securing the trailer for them.

Vehicle safety is an important part of any travel plan. Most colleges and universities have set policies and procedures for fleet and rental vehicles. Vehicles pulling trailers require additional knowledge of proper vehicle safety, hook-up procedures, and driving experience.

For those groups who want to use trailers on official university travel, advisors can take some steps to limit risk, including providing trailer safety guidelines, requiring drivers watch a trailer safety video (available from most state departments of transportation), and conducting a quiz afterward. Groups can also be made aware that any damage caused by the trailer will be the responsibility of the pulling vehicle. For example, in the reverse of this scenario, if Dad’s van is pulling a university trailer, the father’s auto insurance would need to cover any accidents caused by the trailer. Physical damage coverage for trailers only covers damage to the trailer itself.

The condition of the trailer and vehicles is also an important part of the process. If the trailers are owned by the university, advisors can ask whether the trailers are inspected annually by a certified mechanic. Advisors may also require any privately owned trailers and/or vehicles pass an inspection by an approved mechanic prior to leaving. Some departments may even contract with mechanics to perform inspections at a flat rate for specific amount of inspections per year. These inspections could then be provided at no cost to groups on a first-come first-served basis.


Scenario 2: Campus/Community Clean-UpRM - Propane

A newly organized student organization has recently organized a community-wide clean-up. Students, staff, and faculty have signed up to do a variety of projects including moving furniture, raking lawns, painting walls, and sweeping alleys. One student group calls stating that they have found a pile of needles in an alleyway. Then another group calls stating they are about start scraping off chipped paint at an off-campus house, but they notice a bucket of lead paint downstairs. There is an old propane tank in a ditch assigned to a third group. What do you do?

Most state departments of transportation have guidelines for appropriate clean-up procedures. These usually take into account regional differences in geography, climate, and refuse trends. Plus, they tend to meet safety requirements for all state institutions. Some resources to consider when organizing clean-up events both on and off campus are team leader training, a list of items not to be touched, and emergency contact information.

 

 

  


Scenario 3: Cultural Night ViolenceRM - Pepperspray

An organization that represents many different cultures within one geographic area is planning a cultural night in the student union, but you have recently heard that some of the different cultures have long-standing rivalries. It has even been suggested that fights may occur, so both sides are planning on bringing pepper spray or weapons to discharge in the crowd. The group’s advisor is saying it is just cultural miscommunication and is not worried.

Some universities have experienced this very incident. Considering the cultural background and long histories, this situation requires delicate handling, but safety must be the institution’s priority. From a liability standpoint, limiting risk is the most basic and easiest response to execute. Each person who enters the performance area, or even building, could be required pass through checkpoints that examine bags and purses for contraband. When possible only students could be admitted to the event, as outside patrons have less investment to keep them from causing damage. Even though there is added cost, hired security as well as municipal police may be needed. The presence of security can deter inappropriate behavior, respond to an emergency quicker than professional staff, and will not automatically arrest participants if a law is broken. For these reasons, it may be advisable to have municipal police in locations where they can react only when requested.

It also is prudent to connect with the students organizing the event and those who can speak for the organizations in opposition. These meetings can be held in the days leading up to and after the event to discuss why certain measures are being taken and how each group can help the event be successful. This is also a time to discuss how the security will be paid for and how to take measures to control behavior, thereby limiting the amount of security required. These conversations will help the students to be members of the process, build buy-in, and to correct any misinterpretations. According to The Life Span: Human Development for Helping Professionals, peer groups are the strongest influence over behavior in young adults and adolescents. Therefore, getting the leaders involved from the beginning may ensure the success of the event and limit any undesirable behavior.


Scenario 4: Bad DogsRM - Hotdogs

The XHG fraternity holds its annual finals week free hot dog and hamburger giveaway. Even though the campus has an exclusive food contract with a food provider, the fraternity works hard each year to get the food products donated. They set up a table, a small grill, and start giving out free lunch. The next day you get a call from the student health services center stating 25 students have food poisoning. They all ate the free food that day.

The liability in this instance is likely not on the university but rather on the organization—which may or may not carry insurance. Whether to protect the university or the organization, some advisors may jump to create a policy prohibiting such events. However, supporting students can come in the form of advocacy to modify risk rather than eliminate it. First, one can identify areas of risk, such as foodborne illness, proper preparation techniques, and barbeque safety. In this case, barbeque safety could mean requiring proper safety equipment including gloves, spatula, tongs, napkins in a sanitary container, coolers, ice for perishable condiments, hand sanitizer, and hairnets. Departments may also choose to provide these items for checkout if groups regularly hold this type of events. Also when grilling, using solely Match Light Charcoal can prevent any potential flare-ups or misuse of lighter fluid.

With donated food prepared by unlicensed and uninsured staff, the likelihood of foodborne illness is higher. One way to combat this and still allow such events is to require all donated food be precooked, pasteurized, or nonperishable. Sealed condiments and single prepackaged items are preferred because they limit exposure of containments to one person. Another option is to work with the campus catering providers since food purchased through their services is covered under their liability insurance. Potential partnerships may look like a donation from the provider, a system where the provider supplies the food and the organization prepares it under the guidance of the provider’s staff.


Scenario 5: Watch PartyRM - Watch

The nursing club organizes a program to watch episodes of Grey’s Anatomy and tell people how a nurses help in those situations. They use Hulu and record the show on their computer to replay later. The event is projected to be well attended and even faculty are announcing it in their classes.

All union and activities professionals see their work as educational. However, contrary to this belief, showing any copyrighted material such as music, television shows, movies, or documentaries is not permitted at a college or university. Films and television shows for purchase in stores or online are for use in “the privacy of a home setting.” Any use outside of that setting—even club meetings, free showings, or educational seminars—needs public performance rights. Additionally, methods for obtaining the material could have associated liability, such as Hulu being a service for live streaming not video capture.

In this example, the student group would have been required to secure public performance rights directly from the major television network, ABC. Some other content, such as movies, is usually licensed through a clearinghouse. Examples of such clearinghouses include Swank Motion Pictures (www.swank.com) or Criterion Pictures (www.criterionpicusa.com). Another option is to work with the campus library for public performance rights, many of which even have a fund set aside for this purpose.


Scenario 6: Fermenting and OrganizationRM - Beer

A group of student leaders approach you to start a beer brewing organization. While your institution does allow alcohol on campus, your supervisor has concerns about the message this group sends. The students are excited and have positive intentions. You want to convince your supervisor that this group should exist. But you have heard rumblings that they will start group whether it is official or not.

While home brewing has become a popular hobby, much changes when brewing becomes an organized activity especially with the intent to raise funds. In this scenario, the laws and policies can vary from state to state. It would be prudent to consult with a campus attorney on state and federal laws on brewing, as well as campus policies. Some universities have required organization members to be 21 years or older, while others made it open to all students. Specific issues may arise when groups begin to attend beer festivals outside the university. Waivers are a good way to transfer liability, but a sober driver may be advisable to limit liability. Should the organization be denied, it is important to clearly indicate to the student leaders and to document in writing that the group is not affiliated with the university to sever liability.


Scenario 7: Reading to ChildrenRM - Kids

The Elementary Educators Organization plans an event that will bring a few busloads of elementary school children to campus. The student organization members will read to them and practice classroom skills. However, you soon learn that one of the workers in the building where the event is taking place is a convicted sex offender.

The presence of minors on campus can raise questions in multiple areas of the law, including administrative, constitutional, criminal, and civil law. The following steps are recommended to prevent misconduct and limit liability in a negligence claim.

The first step is to limit one-on-one alone time with minors. If there are specific people who will have individual contact with a child, it may be important to complete a background check, usually available through campus human relations departments. Pennsylvania State University has also recently pushed guidelines for the amount of supervisors the school should provide based on the age of the children attending.

  • One staff member for every five children ages 4 and 5
  • One staff member for every six children ages 6 to 8
  • One staff member for every eight children ages 9 to 14
  • One staff member for every 10 children ages 15 to 17

It also is advisable to create a plan that enhances safety and outlines certain protocol. For instance, the drop-off and pick-up location should be easy to move children through to reduce the risk of a child getting lost or wandering into an authorized/traffic area. When moving minors to and from staging areas, have a plan in place to ensure all students arrived safety. Procedures can be put in place in case one of the children is injured and outline when to contact parents and security. Finally, a detailed description can be made available to the supervising educators for families on the exact activities for the day


Scenario 8: Don't Rock the CartRM - Golf Cart

For a fundraiser, the student government association has rented a golf cart and is giving people rides across campus for a small fee. They zip around campus providing as many rides as possible between classes. Multiple people have complained how fast they drive and that they can be hard to detect at night.

Golf carts and other small vehicles are a way for student groups to get attention and promote involvement on campus. They can be a safe and fun activity, but they can also become a hazard quickly. Golf carts are deemed slow-moving vehicles (maximum speed of less than 20 miles per hour), and so do not need seat belts. They do, however, require a slow moving vehicle sign to make them more visible at night. Additionally, if driving occurs after sunset, the vehicle is required to have operable headlights. In this scenario, limiting rides to between dawn and dusk would help reduce risk.

The condition of the vehicle is important, but ultimately the behavior of the operator is most important. Some campuses require those operating the golf cart to watch a safety video. Additionally, while a driver’s license is not required by law for slow-moving vehicles, advisors can make sure that all drivers have a valid license and are approved (if needed) through the campus motor pool. This is essential for the vehicle to be covered under university liability coverage; however, it may also help to educate students that liability is more likely to fall with the organization than with the university.

Conclusion

Many of the scenarios discussed in this article may not be new and certainly do not cover the gamut of potential risks. However, they do offer an opportunity to consider one’s personal response to such situations and how involvement offices might manage these risks. Making activities safer, helping students take ownership of their actions, and limiting potential negligence is possible through intentional steps to protect the university, ourselves, and students.


Contributor

TourvilleBill Tourville is the assistant director of student activities at Minnesota State University–Mankato. He directly advises the IMPACT Programming Board as well as the Homecoming, Family Weekend, and Welcome Week committees. He also has served as the Region 10 recreation coordinator for ACUI. His areas of interested are student leader training, program development, and facilities management. In his free time, Tourville enjoys fantasy sports, drumming, and hiking. His email is william.tourville@mnsu.edu.