In most aspects of international risk management, safety and liability fly in formation. When you are working to improve safety, you are reducing your liability exposure and vice versa. However, there are some areas where safety and liability come into conflict.
Safety is generally spoken of as a good with the implication that more is better. And, while safety specifically refers to freedom from accidental harm, it is most generally used to refer to freedom from all harm (folding in both illness and intentional harm).
Liability is less universally embraced with some connotations of “covering your butt” or protecting the bottom line at the expense of more noble aspects of programming.
However, I love liability. It is what gets safety a seat at the table when decisions are being made and a line in the budget. And, assuming you believe that the work you do is worthwhile, it behooves you to ensure that your organization doesn’t become the victim of a lawsuit.
Also, safety appears to be a squishier concept than liability. Liability seems more black and white as it requires lawyers to divine the black vs the white. In reality they are both very squishy. A potential freedom from harm vs a potential obligation to pay compensation.
So where is the conflict?
When we perform safety reviews, collect incident data, analyze our safety strategies in reports or in emails, we are creating documents that are legally discoverable in the event of any potential lawsuit. And, when we train staff to respond to medical emergencies or mental health issues, there is a concern that we might be increasing our Duty to Act.
If you are being sued, you are in a civil court and the other team is trying to demonstrate that you are negligent. To establish negligence, you need to show four conditions existent:
- You need to have a Duty to Act
- There needs to be harm
- It needs to be shown that there was a breach of the Duty
- It needs to be shown that the breach of the Duty caused the harm
Also, another area of concern when we collect physical and mental health information from participants is that, by virtue of having awareness of their pre-existing conditions and accepting them onto our programs, that we have assumed a greater degree of responsibility (or greater Duty to Act) for all aspects of their pre-existing conditions in regards to their safety.
Additionally, programs that collect such information often do not ensure that the trip leading staff are privy to the information out of concern for liability stemming from the Health Insurance Portability and Accountability Act (HIPAA) and the Federal Educational Rights and Privacy Act (FERPA) regulations. The argument is that if they have been screened and deemed appropriate for the program, then on-site staff do not need the information as they should treat everyone based solely in their behavior and not their history. The reality is that programs rarely “screen out” anyone at least in part owing to concern for liability stemming from the Americans with Disabilities Act (ADA) application overseas. There have been two legal rulings regarding the ADA. One supported the application overseas and the other one did not. No one wants to be the federal test case that decides it.
The concern for liability in all these cases has merit. However, there are no recorded cases of any of these concerns having any significant bearing on any legal liability case on record for study abroad.
And while you are not likely to hear anyone say (out loud) that they are fine with accepting a greater likelihood of harm to participants in order to reduce liability exposure, that is what happens when decisions are made to not train staff, screen participants, conduct safety reviews, collect incident data, etc., out of concern for liability.
And the irony is that such decisions are more likely to increase liability, not reduce it. Without harm, there is no liability. When you accept a greater likelihood of harm, you are accepting a greater likelihood of liability. Orienting your decision making around maximizing your best legal position once you are involved in a liability suit, increases the likelihood of being involved in a liability suit.
Likewise, some of the things that anger the victims (or their families) in safety incidents are the result of measures taken to reduce the liability. Victims and their families are more likely to bring suit when they perceive that:
- the incident was preventable
- post incident information was not forthcoming
- the institution is putting its bottom line first
- the institution is not taking responsibility for the incident
So, what steps makes sense?
- Take all reasonable and prudent health, safety and security measures independent of liability concerns.
- Understand the legal landscape and take all reasonable measures to protect your organization from liability exposure.
You cannot make your programs absolutely safe, but you can make them as safe as they should be.