Bad luck or about time, however, you look at this decision, you will change the way you work in the Outdoor Recreation Industry

Foster, et al., v. Kosseff, et al., 2013 U.S. Dist. LEXIS 5380

It is an industry, and it is not based on dreams or what your think it should be: Welcome to the real world

Simply, someone went into a climbing wall at a university, was paid to review the risk-management issues, created a report and is now being sued because of it.

The plaintiff was a student and employee of Whitman College of Spokane Washington. The plaintiff worked at the climbing wall as an instructor. She was injured when she fell 32 feet from the climbing wall. (Some of this information I got from a news article Student crushes vertebrae in climbing wall fall.) The court opinion says she was training on the wall. The article says she was cleaning holds when she fell.

She fell because a shut failed to work properly. The decision said the plaintiff failed to use the shut properly. The manufacturer of the Shut was not included in the lawsuit.

Alex Kosseff and Adventure Safety International, LLC, (ASI) were named as defendants. ASI had been hired by the college to perform a “risk management audit.” A document was prepared by ASI, which was titled Whitman College Outdoor Programs Draft Risk Management Audit. One of the major arguments was the report was labeled a draft report.

ASI, according to the article, was also hired by the college after the accident to investigate the complaint.

The plaintiff sued, and ASI filed an answer to the complaint. This motion was then filed moving to have ASI dismissed from the suit.

The court found that the plaintiff could continue her claim against the defendant because she was a third party beneficiary of the agreement between the college and the defendant or because as an employee of the college at the time of the accident, she was part of the agreement. Plaintiff would not have a claim against the defendant if she was an incidental beneficiary of the contract.

The question then “depends upon the extent to which ASI agreed to undertake the risk management audit for the benefit of the college’s employees and students rather than for the benefit the college itself.”

So if she was an employee of college at the time of the accident, is the basis for this claim a worker’s compensation subrogation claim?

Summary of the case

The basis of ASI’s motion was it did not owe a duty to the plaintiff.

The crux of ASI’s argument is that it did not owe Plaintiff a duty of care because the dangerous condition which caused her accident was simply “outside the scope of the risk-management audit” that it agreed to perform. Specifically, ASI argues that the scope of the audit was limited to “gain[ing] a general understanding of [Whitman College’s] risk management practices,” and that it did not “guarantee that future operations will be free of safety incidents.”

ASI is saying that they were working for the college, not the plaintiff. The court did not buy the argument.

The court held the audit report was not the only reason for its decision and was not necessarily required by the plaintiff to prove her case. That issue, whether the defendant owed the plaintiff a duty of care.

The court looked at the plaintiff as the intended recipient, the third party beneficiary, of the work done by ASI. I also think the court could have held that the plaintiff was the intended beneficiary of the report because she was an employee of the College.

If you are hired to work for a college and the work, you are performing is for the benefit of the patrons of the college, you are possibly liable to the students.

This was just a preliminary motion, there is a lot of litigation and trial left in this case, and ASI may eventually be dismissed. However, ASI will have to find better arguments.

So Now What?

1.      If you are performing this type of work, you can be sued. I’ve known it for years, and I’m amazed the number of people who are astounded by this decision.

2.    If you do this type of work, you need insurance to cover your liability.

3.    If you do this type of work, based on this decision, you can’t miss anything.

4.    If you do this type of work you better not be stupid enough to call what you do an audit.

Remember that marketing makes promises that risk management has to pay for. Audit sounded like a cool word to use to describe walking into a program and looking around. However, audit has a much more definitive definition. Wikipedia uses the following words to define “audit:” thoroughly examines and reasonable assurance that the statements are free from material error.

5.     Why are you doing this work? Do you have the credentials and the experience to make these decisions? What is your engineering degree? What ASTM committees that are involved in the creation of the equipment and facilities that you audit are you on? What equipment are you taking with you to perform the appropriate tests?

And this is not the only way that a third party can be brought into a suit like this. They misrepresented their abilities (Which I believe every single one of them is doing) which can lead to liability.

You just can’t say I’ve done it for 10 years. Therefore, I can tell you how to do it. You have to study and inspect and test. You have to take the climbing wall apart and see if the structure is built correctly. Are the bolts the proper size and strength and not just was some pseudo organization says but what the ASTM says it should be? What is the force the climbing wall can sustain? Is all the equipment in the chain where force will be applied, built and maintained to sustain that force?

This is a bad case, but not one that is unexpected just took longer to occur then I would have guessed.

If you do have an accident, you can’t hire the person who did your inspect to do the accident inspection. Besides that, inspection is not protected and is discoverable by the plaintiff.

The three largest payouts in the OR industry occurred after third party investigators were hired to determine what happened. In one, the plaintiffs took the investigators report and turned it into the complaint.

If you have a wall or run a program hire professional. Not people you may meet at a show, but people with real credentials after their name.

If you think, you still want to keep doing this, make sure your agreement with the program defines what you can and cannot do, and that you are not liable for the programs’ failure to follow your recommendations.

Plaintiff: Stephanie Foster

Defendant: Alex Kosseff, et al.

Plaintiff Claims: Defendant was negligent in failing to discover the risk posed by the Super Shut anchor.

Defendant Defenses: Defendant did not owe the plaintiff a duty of care.

Holding: Defendant’s motion to dismiss was denied.

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By Recreation Law          Rec-law@recreation-law.com   James H. Moss                  Jim Moss

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