If you mix up your language, you will be held to the wrong standard in courtPosted: October 30, 2013
Best practices are not standards
A little piece popped up on an association website to try to convince people to buy into the association standards. Two of the statements, instead of solving problems as the piece was trying to do, will guaranty that members lose lawsuits. The statements that were posted were:
The media calls and asks what set of best practices/standards my camp follows.
I realize it is the professional standard of my profession.
Standards in court are the lowest acceptable level of doing (or not doing something). If you fall below the standard, then you have breached the duty of care that you owe to your guest. Duty is the first of four steps needed to prove you were negligent.
Best Practices are a good way of doing something, maybe not the absolute, but a very good way. Best practices are what you strive to achieve.
Best Practices and Standards are different. Different to the point that one is aimed at achieving the best you can and the other is the minimum that must be achieved.
Best Practices imply that there is more than one way to do something. Standards mean it is the way, usually the only way to do something.
That is how this confusion is going to affect a program that mixes these up and ends up in court. There are two possible outcomes from this mix. You write your standards and label them best practices, or you write best practices and label them as standards.
Problem 1: You write you standards and label them best practices
Someone is injured. This is an odd situation where you probably have not acted at the level you say you would. As an example, your best practices say that you want an average of three adults with every group of eight ten-year olds. You normally have two adults with a group like that, and the industry standard is one adult with a group of eight ten-year olds.
If a ten-year-old is injured you will have to show that you did not meet your best practices, but you probably did not fall below the standard.
Problem 2: You write best practices and label them as standards.
This is simple, no matter what you do, you will not be meeting the minimum acceptable level of doing (or not doing) something. Your standards will always be too high, and any injury will be proof that you have violated your own standards.
You must understand the difference between everything and standards from a legal point of view.
New Jersey Model Jury Instructions state:
5.10A NEGLIGENCE AND ORDINARY CARE – GENERAL
To summarize, every person is required to exercise the foresight, prudence and caution which a reasonably prudent person would exercise under the same or similar circumstances. Negligence then is a departure from that standard of care.
Restatement Second of Torts, section 282, defines negligence as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”
These are just examples and when looking at the specific issues and instructions to be given, the law has much more depth. However, your own words will be used against you in the worst way by the opposing side if you are ever sued.
What do you think? Leave a comment.
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