Posted on July 14, 2011 by Tiffany Schmidt

A Tragic Accident & Civil Liability Could Have Been Avoided, If Policies Were Followed.

Last year, I blogged about a tragic accident at a Wisconsin amusement park where a 12 year old girl fell more than 100 feet from the Terminal Velocity ride due to operator error. I stressed in that blog the importance of training employees and conducting refresher training, especially when safety issues are involved.

Last week, a double-amputee Iraq War veteran fell to his death at a New York state amusement park after being thrown from the Ride of Steel roller coaster. Signs at the roller coaster clearly stated, “[f]or the restraint devices on this ride to fully and safely engage, guests must have two legs and be within certain range of size and physical dimension. . . In addition, guests must have sufficient body strength and the complete use of at least one arm and hand to hold on to the grab bar.” The media has reported the ride operators were clearly aware Mr. Hackemer did not have legs and offered no explanation for why they let him ride it. It is uncertain if Mr. Hackemer was wearing his prosthetic legs at the time of the accident. A criminal investigation found no recklessness, intent or criminal wrongdoing, but that doesn’t mean the Darien Lake Theme Park & Resort is off the hook yet.

Just the fact that they had a policy in place, which had it been followed would have prevented this tragic accident, causes some concern when it comes to potential civil liability. This was a 29 year old young man with two young daughters to support and raise.

I can’t stress enough:

(1) The importance of having policies in your workplace, especially covering safety issues;
(2) Training employees on the policies, and providing refresher training; and
(3) Ensuring employees understand and follow the policies in all circumstances.

Employers can’t just train the employees and assume they understand. Employers must go further and insure employees can apply what they have learned and know not to deviate from safety policies. Safety policies serve two purposes: to protect citizens and the business. Unfortunately, they failed to protect both in this case.

 

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Posted on July 13, 2011 by Marylee Abrams

Facebook Trash Talk Is Not Protected Speech In A University Setting

Technology and social media use is morphing at light-speed. Figuring out clear lines and appropriate social behaviors remains very murky. The court system has been no help in providing guidance, due to the lengthy delays between the filing of a case and a final court ruling, generally issued years later. Last year, my law partner blogged about a sexting workplace discipline case. There was an eight year delay between the employee's misconduct, and the final decision issued by the United States Supreme Court. By the time the Court ruled, the pager technology used by the employee was already out of date. Judges are historically reserved and reluctant to provide much guidance because they simply can’t predict where social media and technology is headed, and can’t fathom how quickly the social media/technology landscape is changing.

I keep looking for cases to help clarify the boundaries and the new rules, but they are few and far between. What are the appropriate boundaries on social media use, and what are the new rules?
The Minnesota Court of Appeals gave us a glimmer of guidance this week, in a case having to do with a University of Minnesota mortuary science student. We can extrapolate from the tenor of the decision and start to see where social media may be headed, and what seems to matter to the Courts.

In the case, a mortuary science student commented on Facebook about a cadaver she named “Bernie,” she described embalming as cathartic, and stated she wanted to stab someone in the throat with an embalming tool. She also mentioned wanting to take out her aggression on the cadaver and about updating a “Death List.” The Facebook posts went out to fellow mortuary science students, her Facebook friends, and friends of her friends. Her Facebook comments were determined to be threatening and inappropriate, and in violation of University rules. Her sanctions included: receiving a failing grade in the class, attending a clinical ethics class, writing a letter to department faculty addressing the issue of respect in the department and the profession, and completing a psychiatric evaluation.

The student challenged the University’s discipline as arbitrary, and argued that her Constitutional right to free speech had been violated. The Court of Appeals was not convinced and ruled, “A public university’s disciplinary sanctions do not violate a student’s right to free speech where the student’s posts to a social networking website materially and substantially disrupt the work and discipline of the university.”

Important points noted by the Court include the fact the University had held an in-depth orientation for students about the treatment of cadavers, and students were required to sign acknowledgment forms indicating they had read the department policies about the responsibilities of dissecting a human body. Additionally, because the University relied very heavily on a voluntary anatomy-bequest program for donated bodies, and because the program was jeopardized, the Facebook posts were deemed to be disruptive to the work and discipline of the program and the University.

Based on the Court’s rationale, we can extrapolate a few take-aways.  Clearly, the Court took note of the fact there was an adopted social media policy which established notice and expected accountability. Training on the policy, and requiring a signed acknowledgment form indicating receipt of the policy, were also mentioned by the Court as important to their ruling. Finally, if social media use can be proven to disrupt work and discipline, it is less likely to be determined to be protected speech.  Common sense won out in the end.  If it's not a good idea to shout out thoughts and comments standing on a street-corner, it is probably not a great idea to post them on Facebook.

 

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