Words: You cannot change a legal definitionPosted: November 10, 2010
No matter what the inside cover says.
Definitions of the words used by an industry cannot be defined by the defendant in a lawsuit. There is an assumption, a wrong one, that if we define words the courts will accept that definition. That works for a word that was created and defined by an industry, but not for a word, that has an already established legal or common usage definition. The word Standard is defined by the Supreme Courts in all fifty states. A slightly different definition may apply for some states however the definitions are quite similar. Colorado defined “standard” in Bayer, v. Crested Butte Mountain Resort, Inc., 960 P.2d 70; 1998 Colo. LEXIS 391; 1998 Colo. J. C.A.R. 2416, as:
“In the comment to this section, the Restatement explains that, “. . . the standard defined is normally a minimum standard, applicable to the ordinary situations contemplated by the legislation. This legislative or administrative minimum does not prevent a finding that a reasonable man would have taken additional precautions where the situation is such as to call for them.” Quoting the Restatement (Second) of Torts 288C (1965)….”
California defined standard as:
“The Restatement Second of Torts summarizes the prevailing view in these terms: ‘Where a statute, ordinance or regulation is found to define a standard of conduct for purposes of negligence actions, . . . the standard defined is normally a minimum standard, applicable to the ordinary situations contemplated by the legislation. Lugtu et al., v. California Highway Patrol et al., 26 Cal. 4th 703; 28 P.3d 249; 110 Cal. Rptr. 2d 528; 2001 Cal. LEXIS 5258; 2001 Cal. Daily Op. Service 7124; 2001 Daily Journal DAR 8763”
Ohio defined standard as:
The Act directed the Secretary of Transportation to “establish * * * appropriate Federal motor vehicle safety standards.” Former Section 1392(a), Title 15. n5 “Motor vehicle safety standards” is defined as “minimum standards for motor vehicle performance, or motor vehicle equipment performance, which [*67] [are] practicable, which [meet] the need for motor vehicle safety and which [provide] objective criteria.” Former Section 1391(2). Minton, Exr., v. Honda of America Manufacturing, Inc. et al., 80 Ohio St. 3d 62; 1997 Ohio 356; 684 N.E.2d 648; 1997 Ohio LEXIS 2460; CCH Prod. Liab. Rep. P15, 083
You may argue the above quotes reference statutes, but there is no difference from a legal standpoint and other words for this discussion. If the term is legal, the courts are going to define the term no matter what you may want or believe. A definition found in a statute supersedes the definition found in the common law or common usage.
Standards exist whether or not any organization believes it. Standards exist in your organization; your standard is what you believe you should be doing. Whether your definition is the definition the jury will accept is a different story.
Standards are changed every day and are different from state to state, community to community, no matter what an organization does. The problem is the organization that is creating standards is putting those standards in place, whether you want them or not. We want to believe that a checklist is an easy way to run a business and avoid litigation. Checklists do not work. The checklist changes to fast and never fits every situation.
There is also a fallacy that standards can be defined to only apply to the situation the standards are meant to apply too. That is absolute fantasyland. To a jury of non-climbers, how do you show in a courtroom the difference between belaying at a climbing wall, a ropes course and on rock. Juries do not understand those differences and therefore the defense has to spend thousands of dollars hiring experts to show that difference between the two standards.
Climbing is not climbing. If you do not believe that, spend a day at any local rock where climbing gym attendees gather. The last two times I was at Eldorado State Park south of Boulder I assisted in rescues. In both cases, the people had come from a climbing gym climbing 5.xx and thought they could climb that level on real rock. Climbing route difficulty is subjective, climbing course setters for competitions go through classes.
How many of you in a college setting rate all of your routes versus commercial gyms that rate every route. Are you trying to entertain and provide recreation or are you educating. Educational groups do not worry about how many of their customers are climbing at 5.13 and how many are climbing at 5.4. They want people climbing. At commercial gyms, there is a desire to move people up the ladder. As such, there is a tendency to lower the rating make believe they are doing a great job.
Standards change and you must run your business your way. Go look at written standards and see which standards do not work or apply to you. Each of those standards is a possible lawsuit against you. Have the standards moved beyond your operation. If there are no written standards, you can operate at the standard of the time of your operation, unless it is deemed dangerous, or unless the written standard says you cannot.
As an example if the climbing wall industry standards had been discovered by the plaintiff in Lemoine v. Cornell University, 2 A.D.3d 1017; 769 N.Y.S.2d 313; 2003 N.Y. App. Div. LEXIS 13209, Cornell would be writing checks. At the time of the lawsuit the written standards of the industry where violated by Cornell. See NY State Law Does Not Prohibit Releases in All Cases.
More importantly, you need to look at two additional issues. 99% of the trade associations in the world do not create standards. Trade associations are created to promote their member’s interests or businesses.
Doctors do not create standards and they are sued every day. Ski areas, do not create standards. In fact, the attorney for the National Ski Area Association stated in a speech that the NSAA would never create standards because of the legal problems involved. Ski areas have more attorneys working for them, then most colleges. Industries that work with “things” that do not change or only change in within specific parameters create standards for those things.
Trade associations promote their members activities. Trade associations in our industry who do not promote their members go out of business. History is definite about this. This occurs even when they are being funded by larger organizations.
The worst part of this, in order to protect your business or university program, you have to fight any organization that promotes standards that will harm you. You have to put them on record that their standards are wrong. This sucks, but if you do not, you will be held in a court of law to the standards someone else created and applied to your program.
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