We’re Gonna be Sued! Put on Your Risk Antenna

Too often we hear the word risk or the phrase we’ll get sued and react poorly. When you hear those words in a discussion, stop to assess the risk before you give up on the idea.

Last month I spoke at the Risk, Reward and Recreational Liability conference for nonprofit organizations in Connecticut. The conference focused on the liability exposures and solutions for nonprofit organizations and the towns and municipalities relative to the access to and use of private and public land and waterways for recreational use.

Throughout the conference the participants kept chanting “we will be sued if we do that!” These organizations and municipalities only want to offer recreational and educational opportunities to people but are paralyzed by the fear of litigation. It wasn’t long before I was living the movie, Groudhog Day. My sincere wish was to wave a magic wand to allay their fears and empower them to act.

A few weeks later while attending a conference on social media for associations, their refrain was “there’s liability there.” The association personnel were not quite as paralyzed but are working with managers and executives who are still fearful of social media. In the future I am going to keep a tally of the number of times “liability” or “risk” is mentioned. People use the terms to reinforce their position against the issue but occasionally in support of an idea (“it’s not that risky”). When the participants know I’m a risk management consultant, they look to me for either affirmation of their fears (“I’m right, it is too risky, right?”) or acceptance of their risk mitigation efforts. Unfortunately they rarely let me respond.

Whether this fear of litigation is justified or not it is in the American psyche. Years ago I was in an airport when the flight was delayed for several hours due to mechanical problems. A youngster (about 9 or 10 years old) told his father to sue the airline for the inconvenience. Everywhere we go we hear people share their fear of being sued. We are also inundated with advertising from personal injury lawyers encouraging us to seek restitution for any alleged harm we may have experienced.

So how do we stop this fear of litigation from getting in the way? Yes it is true in the United States that anyone can sue anybody for any reason – all you need is to write the compliant, file it with the appropriate court system and pay a small fee. But frankly that doesn’t happen that often. Most likely if someone is seeking restitution they will file a claim against the organization but that is not the same as a lawsuit. Think of the number of times you have been hurt and could have asked someone else to pay but you didn’t. That’s how most people operate.

The real or imagined possibility of litigation is not my point. My goal is to raise awareness that people use this fear as a rationale to not do something before they analyze the risk. We just utter those words and move on to the next idea. We need to stop and review the risk to determine if it is enough of a deterrent to avoid doing the activity or event. The risk may be real but you may also be able to manage it to an acceptable level.

So when someone utters the words risk or liability stop for a second before you agree with their assessment. Use these words as red flags to explore whether or not they truly describe the situation. The idea may be risky but manageable or too great a threat that needs to be avoided. You may be able to modify the activity to make the risk level acceptable. Put your risk antenna on and learn how to pull the facts and information from all of the noise. With practice you can get quite good at it.

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