"Book Reviews" by Sylvia Dresser |
by Charles "Reb" Gregg The highest priority of staff of an outdoor program is, of course, a quality program. Fair treatment of the client, including his or her suitability, addressing expectations that may not be fulfilled, describing the activities and their risks, and reasonable management of the inherent and other risks of the activity will go a long way toward protection from legal liability. Of course, bad things will happen to even the best programs, and disappointed or injured clients may file a lawsuit even though the claim has very little merit, so an understanding of the law which would be applicable to such a program is vitally important. A staff person may be individually sued for wrongful conduct, even if the alleged wrongful act occurs in the course of employment. So it is not just the entity (corporation, limited liability company or whatever) that is at risk. The area of the law with which you will be most concerned is negligence: failing to act as a reasonable outdoor professional would have acted in same or similar circumstances. The elements of negligence are the following: 1. Duty - a sufficient relationship between the program and the injured person to establish that a duty of care is owed. The “duty of care” is a duty to act toward that person as a reasonable outdoor professional would act. 2. Breach of duty - the failure to act as required. 3. Injury - An injury results from the breach of the duty; that is, the breach of duty substantially contributes to an injury, which may be emotional or physical, and certainly includes death. Note that the
duty calls upon you to act as a reasonable professional (not a reasonable
“person”) might act. It might be argued that the more training and
credentials you have, the greater your duty; and it probably is true
that, while anyone who purports to lead another in an outdoor activity
must have a certain minimum bundle of talents (including the talent
to know what they don’t know and to refrain from doing what they
are not trained to do) persons of exceptional ability have a duty to act
in accordance with those
It is important for you to understand the defenses to negligence. All elements - duty, breach of duty and an injury caused by that breach - must be present. If any one is missing, a cause of action for negligence does not exist. The basis of certain important defenses is that the actor is relieved of the duty of care. A manager or staff member has no obligation to protect a client from the inherent risks of an activity - those risks which simply come with the territory, and whose reduction or elimination would substantially alter the nature of the activity. There is a duty not to enlarge those inherent risks (by allowing climbing without a helmet in a rock fall area, not providing personal floatation devices, etc.) A client’s expressed assumption of a risk also relieves the program of any liability to protect the client from that expressly assumed risk. Releases and waivers sufficiently well drawn to inform the client of rights being surrendered, may also eliminate a duty to protect the client from those risks covered by the release. These releases may include, in all but a few states, injuries arising from the negligent conduct of the program or any of its personnel. Circumstances may arise in which a judge or jury is asked to compare the fault of the program and the fault of the person claiming injury. If the injury was not caused by an inherent risk, or a risk expressly assumed or released, a client who chooses to participate in an obviously risky activity may find himself charged with carelessness in agreeing to do so, and any recovery to which he would otherwise be entitled could be reduced proportionately or eliminated. Your program may be threatened by lawsuits of other sorts. For instance, you may be sued for failing to fulfill a promise that you make in your literature: to provide a certain kind of activity, to go to certain places, etc. You might also be sued for misrepresenting the nature of the activity, thereby inducing a client to participate who would not have participated if the truth had been told (or shown - pictures can also create “promises” or misrepresent a condition.). Again, the answer to your legal liability concerns lies fundamentally in running a good program: meeting professional standards regarding screening and supervision of clients; selection and training of staff; record keeping; emergency protocols; exchanging information with the client; understanding the environments in which your activities are conducted; a sound administration; current and adequate gear and policies and practices which conform to your mission and are clearly communicated to your staff. Strategies for protecting your program financially include a sound insurance program, the wise use of professionals (medical, insurance and legal); a carefully selected form of business which does not unnecessarily expose personnel assets to claims; carefully crafted agreements of release, waiver and indemnity; and a sound risk management program. Consult with an attorney in the area in which you will be operating. Become familiar with the laws which affect your program. The brief description of negligence law, above, is only an introduction to your education regarding how your program and its personnel may avoid claims of legal liability. *Editor's
Note: Charles "Reb" Gregg is a prominent attorney in the outdoor industry.
He can reached at:
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