Gil Fried, J.D. Gil Fried is an associate professor at the University of New Haven where he coordinates graduate programs in Management of Sports Industries and Facility Management, which are endorsed by the International Association of Assembly Managers (IAAM). He has worked with the IAAM on various projects from train the trainer programs to developing case studies for the International Crowd Management Conference. He is a well-known attorney in the sport facility area and serves as general counsel for several sport facility associations. He also serves as the director of risk management for OR&L Facility Management where he helps monitor risks and safety issues for several million square feet of public facilities managed by OR&L Facilities Management. He has written several books on risk and facility management and speaks extensively throughout the country. You can contact him through his Web page at www.gilfried.com or through gfried@newhaven.edu.

I read your article on the NFPA’s Life Safety Code, but do I have to follow all the requirements?

Dear S. C.: That is a very good question. In the January/February issue of Public Venue Security I highlighted some of the requirements set forth in the National Fire Protection Association’s (NFPA’s) Life Safety Code. The NFPA has published other codes such as Building Construction and Safety Code (NFPA 5000) and the NFPA Fire Prevention Code Handbook. The article mentions that 32 states have adopted parts of the Life Safety Code. The parts primarily adopted have focused on sprinkler systems, but other sections could apply. To address this sticky issue let me discuss some background material about “standards.”

In litigation stemming from an injury at a facility, expert witnesses are often retained to explain to the lay public (the jury) the intricacies of a given issue. Experts often are asked to indicate whether a party in the suit upheld or violated a potential standard.

Standards can be established based on written policies/procedures, accepted industry practices, or legal mandates. If a law indicates a facility fence needs to be four feet high around a water area, such as a pool or pond, the failure to have such a fence is a violation of a mandated standard of conduct and represents Negligence Per Se (negligence as a matter of law). Similarly, facility managers need to act in a certain manner that represents the standard way to respond to a hazard or concern.

I have been hired as an expert on a number of cases where I have indicated what a reasonable prudent facility manager would have done in a given situation. In this kind of analysis, we compare the facility manager to another facility manager in North America with the same skill, knowledge and experience to determine how they would have responded to a specific event. If I can show that a facility manager did everything a reasonable facility manager would have done under the same circumstances, then the facility has a good chance of showing they acted reasonably and should not be liable for someone’s injuries.

Purported industry standards are harder to explain. Industry standards are not laws adopted by state, local or the federal government, but might have been developed by industry experts or executives. The first question to ask is whether these industry experts are trying to develop standards to benefit themselves or others. So, if a standard were developed to help sell products or services, then it would not have significant weight in court. The next question to ask is how the standard was developed. Some organizations have a process where members develop a potential standard and then pass it around to other members who vote whether or not to approve a standard. This does not mean the standard has passed strict scientific scrutiny.

In the medical profession, multiple blind tests are conducted to determine if a drug works. In the facility area, most standards have not gone through such scrutiny.

In one case I worked on, an opposing expert cited the American College of Sports Medicine “guidelines” for sport/fitness facilities and indicated these “standards” should be followed because industry experts approved them. The guidelines specified ideal temperatures, humidity levels and air exchanges for a gym. The question I raised was what experience did sport medicine experts have in operating HVAC systems? Shouldn’t those trained in operating HVAC systems help develop appropriate standards rather than doctors?

In fact, when I asked the editor of the guidelines where the “standards” came from, he mentioned that he reviewed material from several texts looking at office buildings. My initial thought was how could the HVAC system for an office building set a guideline for a gym when there are numerous other concerns, such as heat load and high ceilings that make gyms significantly different then office buildings. Thus, for any standard to pass legal muster under the Daubert challenge (requiring proof that a standard or conclusion is based on scientific or sound research), the standard needs to be tested and proven to be correct. Otherwise the standard is just a suggestion.

The NFPA sets forth ideal actions and what an ideal facility manager should strive to achieve based on the opinions of industry experts. However, the failure to meet NFPA or other similar standards does not constitute violating the law and does not necessarily mean someone is negligent. For example, one of the Life Safety Code’s requirements is to allow festival seating in facilities with less than 1,000 occupancy load and allows festival seating in larger facilities if they have an approved life-safety evaluation (12.2.5.4.1). I think this is a great suggestion, if adequate and appropriately trained crowd managers and risk-management strategies are followed.

However, if there is an occupancy load of 1,050 and there is no life-safety evaluation, should the facility be automatically liable? No. Unless an expert can prove that 1,000 is a magic number, no court will require a jury to use the 1,000-occupancy load cut-off as a hard-andfast standard. In fact, I have been in front of a number of courts where standards cited by associations were declared not applicable in that jurisdiction because no court or legal body authorized them. If no fire marshal or other elected official requires a life-safety evaluation, then the courts typically will not use this provision of the Life Safety Code as a standard.

However, an expert witness still can argue that an unofficial “standard” followed by most prudent facility managers has become an industry standard of practice.

Thus, to determine whether you should follow any “standards,” such as the NFPA’s Life Safety Code, you should check whether your jurisdiction requires compliance. If not, check with other facility managers to see what provisions they follow. If four or five out of seven (or some similar percentage greater than 50 percent) facility managers follow a conduct — whether or not it is from an established standard — that conduct could be considered the reasonable industry standard that should be followed in that area.