If you own a circus/aerial arts studio, could your business survive financially if an accident occurred and you lost a two million dollar judgement? What about a 10 million dollar judgement? Let’s be honest, there is a lot of potential for accidents and physical injuries in circus and aerial arts and juries seem more and more inclined to award large judgments to the victims of accidents.
Of course, we should do everything possible to prevent accidents from occurring, but sometimes accidents happen despite even herculean safety effects. This is why studio owners (and their instructors) need to be prepared for accidents and potential lawsuits that could arise.
Since injury lawyers are paid a percentage of the awards from a settlement it is in their best interest for the settlement to be as large as possible. This means that they will want as many people and companies named in the lawsuit as possible. In the event of a major accident, you should expect the lawyers to cast their net as wide as possible and the following to be named as defendants: the circus/aerial studio, the owner of the building (if different), the instructor, the person who rigged any circus/aerial equipment used, the vendor of any circus/aerial equipment used, possibly suppliers of components used in the circus/aerial equipment, and anyone else connected in even the slightest way with the accident.
Eventually, a process server will show up at your front door, or at your place of employment, and present you with a stack of paper showing that you are being sued. Even though you know this is coming, it is still an emotional moment. Now is when all the lawyers and insurance companies get involved.
The lawyers will all hire expert witnesses to investigate the accidents and testify that their client is not responsible for the accident. The studio and all materials relevant to the accident, as well as many not relevant, will be studied in detail. Remember, when your studio is investigated after an accident, the investigators will be looking for any and every weakness in the studio or its operation – do not give them anything to find.
In the USA, if an employee is injured, OSHA will also investigate the accident and could fine the studio. This fine is not related to the lawsuit so your insurance will not pay it.
Everyone wants their studio to be safe. But, preparing for an accident and a potential lawsuit should be part of your business plan.
Circus/aerial instructors should not expect to be covered under the insurance policy of the studio. Most instructors are considered sub-contractors, not employees, and therefore are not covered by the studio’s insurance policy. Instructors may want to carry their own insurance. Also, defendants may try to blame anyone for the accident – “She is responsible for the accident, not me” – in their attempt to remove themselves from the suit, or limit their liability. The attorney for the injured party may even encourage the defendants to turn on one another and testify for the injured party in exchange for reducing their responsibility in the suit, typically to the limit of their insurance policy.
After more than a year of studying the accident, depositions will begin. Everyone involved in the accident, including many expert witnesses, will be deposed under oath. These testimonies are long and tortuous as each witness spends hour after hour answering questions from all of the lawyers. The deposition phase can last for more than a year as the lawyers continue gathering additional information and trying to show all the other parties involved how strong their case is.
No attorney actually wants the lawsuit to go to trial, and most injury lawsuits are settled out of court. This is why the deposition portion of the suit is so important, and when defendants may turn on each other.
There was a television commercial that used the catchphrase, “People don’t plan to fail, they fail to plan.” A studio owner, or instructor, must plan and prepare for a lawsuit, and this preparation needs to start long before the accident occurs. Here are some things you can do to prepare for an accident and a potential lawsuit.
Memorandum of Indemnification
A Memorandum of Indemnification is a legal document, drawn up by a lawyer and signed by participants saying that they recognize that the activity that are participating in is dangerous and they accept responsibility for their own safety. While these agreements are a good thing to have, they are not all encompassing. A judge may throw-out the memorandum, as if it never existed. Still, it may be of use in reducing your liability, so I highly recommend having one.
There is some truth to be belief that the more insurance you have the more attractive you are as someone to sue. Insurance companies recognize this and will help you select the proper amount of coverage. Of course, being under-insured can make you personally liable for any amount awarded that is beyond your coverage limit.
Do not be surprised if your insurance company refuses to renew your policy following an accident. This will force you to look for a new insurance carrier, and most likely, pay higher premiums. However, even if your policy is dropped or canceled, the insurance company covering you at the time of the accident will still hire an attorney to represent you in the case.
Also, you should talk to your attorney and see about doing business as an Limited Liability Corporation (LLC), even if you are an individual, to help protect your person assets.
Studio Policies and Procedures
Does your studio have a comprehensive policies and procedures manual that is available to all instructors, students and their parents, that explains in detail all policies pertaining to safety? If not, I recommend you create one now. Try to imagine anything and everything that could happen and come up with a policy that would minimize it. Such policies might include, but are not limited to:
- Policy for using matts or other safety equipment
- Policy on what tricks students at each level can attempt
- Policy for equipment and rigging inspections
- Policies and procedures for using particular apparatus
- Policy for working in studio alone
- Policy for using personal equipment
- Policy for max number of students an instructor can supervise at one time
- Require instructors to have first aid and concussion training
- Policy of spotting
- Policy on bullying
Once created, stress and enforce these policies. Such policies should not only help prevent accidents, but they can help show that your studio made a concerted effort to keep everyone safe after an accident. In the US, the American Circus Educators Association, through their Safety Program, helps studios prepare policy and procedures manuals. In Europe, a similar organization is AERISC.
Other things to do included:
Make sure all instructors are well qualified and continue their training in circus/aerial arts, safety, first aid, and other related fields (this might include your bringing in experts to do training sessions several times each year)
- Make sure that everyone is trained and qualified to do aerial rigging
- Make sure that all equipment is top quality and meets appropriate standards (ANSI and OSHA)
- Keep meticulous inspection records and injury reports
- Belong to state, regional and national professional organizations that promote safety
- Have certificates from recognized programs that stress circus, aerial, or workplace safety
- Have your spaces and equipment inspected by an outside individual annually, and get a written report to document the inspection. If problems are found, add a note to the report that shows when and how each issue was addressed.
In short, the goal is to create a “paper trail” – a series of documents that lead the reader down a path to an irrefutable conclusion. In this case, the conclusion that you want to show is that your space and equipment is top notch and well maintained; your instructors are well trained and know how to safely run a studio/class; and you have extensive safety policies and procedures that are communicated to everyone working in the studio and are enforced to the best of your ability. In other words, you have done everything reasonably possible to ensure the safety of the participants and the injury was the result of something beyond your control.
Everyone wants their studio to be safe. But, preparing for an accident and a potential lawsuit should be part of your business plan. Without it being a part of your plan, an accident could put you out of business. Remember the adage, “Plan for the worst, hope for the best.”