Event Safety Insights Issue One | Fall 2016 | Page 34

than Dumb ...

By Steven A . Adelman

Duty of Care :

It ’ s Better to

Be Smart

“ 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 .”

During my presentation at the 2016 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 .
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 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 . In every situation , the law imposes a duty to behave reasonably under your actual situation .
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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