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Marketing is marketing and Risk Management is not marketing

Every business wants to increase its presence in the community and its business. One way members of the outdoor recreation industry do this is through marketing programs called accreditation.

Accreditation is a process where your business or program has met the necessary requirements that the trade association has created. The accreditation process usually incorporates meeting requirements or in many cases, standards created by the association to gauge whether the business or program should be accredited. If the business or program meets accreditation, then they can advertise that fact to the general public.

Accreditation also has come to mean that once you have achieved a level or completed the requirements and advertised that fact to the general public, the public has the right to expect that level of accomplishment from at all times. That is where accreditation can be as dangerous as it may be beneficial.

In Lesser v. Camp Wildwood, 282 F. Supp. 2d 139; 2003 U.S. Dist. LEXIS 16170, a camper was injured when the wind blew a branch out of a tree injuring him. The decision is on a motion in liminae. A motion in liminae is a motion where the judge decides what evidence or witnesses will be allowed to testify or in the trial. The plaintiff argues in the motion that the plaintiff will prove the defendant failed to meet the standards of the American Camping Association (ACA). The defendant camp was an accredited member of the ACA.

The accreditation process required the defendant camp to have an emergency plan for severe storms. The plan called for the campers to move as a group to the dining hall. In this case, a storm came up during a firework works display while the campers were at the waterfront. When the campers were told to leave the area and go to their cabins the plaintiff went a different way placing him in a position to be struck by the branch causing his injuries.

The court in the published decision stated that because the defendant camp “repeatedly claimed that they have complied with ACA standards, and that ACA camps are safer, then” other non-ACA camps. It was important for the plaintiff’s expert to prove that the camp had not followed the ACA standards.

The reason why this case is disturbing is because it set a level of care that was much higher than required under New York law. The defendant camp was located in New York, which is also where the suit was filed. Under New York law, the standard of care for camps was:

schools, camps or similar institutions have a duty to exercise the same degree of care as would a reasonably prudent parent under similar circumstances.”

“…camps, like schools, “are not insurers of safety . . . for they cannot reasonably be expected to continuously supervise and control all movements and activities of students.”

“Organizers of recreational events “owe a duty to exercise only reasonable care to protect participants ‘from injuries arising out of unassumed, concealed or unreasonably increased risks”

“…constant supervision is neither feasible nor desirable because one of the benefits of such an institution is to inculcate self-reliance in the campers which an overly protective supervision would destroy”).”

Because the camp was accredited and held itself out to a higher standard, the court was going to allow testimony that the camp had failed to meet that standard of care that it advertised it met. The camp through its marketing program raised the standard it must meet in court from reasonable supervision and control to constant supervision and control. But for accreditation, the camp would not have been in the position in the lawsuit it found itself.

The definition of accreditation by the Council on Accreditation (COA) is a formal evaluation of an organization against accepted criteria or standards. (http://www.coastandards.org/glossary.php) The COA does not define “standard.” Even if the COA did define standard or if the standards written by the trade association defined the term “standard,” the definition will probably not matter in a court.

The standard of care is the level of acting or not acting that determines if a duty was breached to an injured person. If the duty existed, if the duty was then breached, if there were an injury and damages, a direct result of the breach of duty, then negligence has been proven. Violating a standard of care is then the first step the plaintiff must prove to recover damages from the defendant.

The vast majorities of the lawsuits for injuries are torts, which require the proof of negligence. If the defendants through their marketing program help the plaintiffs prove their cases in lawsuits against them is the marketing program of real value in the long run.

Jury instructions define “standard of care” as “a duty to use that degree of care which a person of similar age, experience and intelligence would ordinarily use under the same or similar circumstances.[1] A reasonable person is not an expert or a committee. It is one person in that situation at that time. That allows the defendant to argue and the jury to understand that no one is perfect and that what may be required in that situation is not the same as you would expect if the world was perfect.

Standards that lead to accreditation create unreasonable expectations that cannot be met or exceed what is legally required on the part of defendants. Lesser is a perfect example of that issue.

How does the jury determine the industry standard? It is presented to the jury by both sides of the litigation. Both the plaintiff and the defendant have the opportunity to argue the appropriate level of care or standard for the situation. This is normally accomplished through expert witnesses. Expert witnesses are people who study or work in the industry that can testify to the standard of care. Although this may seem archaic or costly, it gives the defendant a fighting chance. There is the opportunity to prove that the defendant did not act below the standard of care. It is then up to the jury to apply the facts, decide on the standard and determine if the defendant injured the plaintiff.

In Kearns v. Upper Columbia Conference of Seventh-Day Adventists, CV OC 0500538 4th District, Idaho, the plaintiff hired an expert witness who was an ACA Accreditation Visitor. An ACA Accreditation Visitor is hired by the camp to come to the camp and review the camp to see if the camp qualifies for accreditation. The visitor’s expert witness report listed numerous standards created by the ACA that the defendant camp had violated. The standards the defendant camp allegedly violated in several cases had nothing to do with the claims of the plaintiff. Yet the ACA standards were used to prove the defendant camp had acted in a way that was below the standard of care for a camp.[2]

In Kearns, a person trained by the trade association in its standards, and accreditation process was hired to help defeat a member of the trade association. That was done using the standards created by the association to show the defendant camp was negligent.

Accreditation is not bad if it is understood and used the way it was envisioned: to show that educational institutions have met the minimum requirements to be a good college or university. Accreditation for colleges and universities looks at the facilities, the professors and their degrees and the ratio of professors to students. It evaluates whether or not the college will do a good job of educating students. The accreditation process is not created in a way that a college or university can be held liable to a student if the student is injured on camps. Accreditation done properly does not create a standard of care that a person will be held to in a lawsuit.

In July 1998, Adam Dzialo was permanently injured when he suffered a near drowning in the Deerfield River. He was part of a program fun by the Greenfield Community College. The college had recently undergone an accreditation review by the Association of Environmental Education (AEE). One of the issues the review highlighted was the college did not employ enough instructors in its paddlesports programs. This lack of instructors was a major issue in the lawsuit by the plaintiff to argue the college had not met the standard of care to the plaintiff. The suit settled eventually, but not before litigation was dismissed in state court and filed in federal court and the resulting several years of fees, costs and emotion.

To achieve accreditation, the trade associations have written standards that must be met by the program or business. Standards are the lowest allowable level of acting or not acting that a jury will allow a defendant to do or not do. That means if you act below the standard you have breached a duty of care, if you act above a standard, you have not breached a duty of care. Standards are difficult to write because that level of care changes over time, by location, and by the plaintiff. Standards then are written broadly but interpreted narrowly by the courts.

Standards are also written for all circumstances. Nothing is ever the same, even on paper. The standard of care owed by a program to a five-year-old is different from the standard of care owed to a sixteen-year-old.  The standard of care owed when taking someone down a class, I river is different than the standard of care of taking someone down a Class IV river. However, we all know that river ratings are very subjective.

Think about any outdoor recreation trip or program you have participated in. Has it ever gone exactly as planned? Has everyone shown up exactly on time, arrived at the start when planned and carried all the right gear, and not too much gear? Has the weather always been what was forecasted and never been a problem Have all the participants had a great time, no bad days and no injuries. When you can consistently run your trips exactly as planned then you can apply standards to your trips because you know exactly how things are going to work. Nothing will go wrong that may lower the way the trip is run below the standard of care.

Additionally, the standards created by associations for its members tend to be goals rather than the minimum acceptable level of care. Consider the issues when a defendant is held to a goal as the minimal acceptable level of care in a court. There is no way that any defendant can meet a goal, when sometimes they cannot meet the minimal level of care.

Standards also change. Look at the progression of alpine skis over the past ten years. At one time, a ski 215 centimeters long and slightly wider than your foot was the standard found in most ski shops. Today the longest ski that can be found is 196 centimeters, and some look like water skis rather than skis to be used on snow. Skis used to arc with only the tips and tails touching when the basis of the skis are put together. Now the only part so the skis that touch is the area under the binding and the tips separate by inches. If the ski industry wrote standards for how ski areas are to operate, how fast could they react and update standards for skis that change yearly.

And what if the standard is wrong? Will the trade association show up in court and say they made a mistake the standard is incorrect. A standard that is wrong is still a standard. The plaintiff will argue it is correct, and the defendant will be forced to defend against a standard that they could not meet and is incorrect to begin with.

Research on standards means nothing in court. It does not matter if the standards are written with the best intention, and they are or with the best goals for the members of the association. Courtrooms are not places to test ideas or raise expectations of potential guests. Courtrooms are where decisions about the future of your business or program are made. You do not want some third party group of people, five years in the past, making that decision for you.

Standards don’t allow for experimentation or growth. If the standard does not allow you to try something new or exceeds the standard you are stuck in the past. Many standards soon become the Twilight Zone of an industry because they lag behind the new and better.

Why is accreditation being promoted in an industry? Money. Trade associations are paid a substantial amount of money so that their membership can post their seal of approval in their marketing. This income is a substantial part of the budget, and they will be hard-pressed to replace it. A trade association, that has created standards, is than caught in a financial bind. They must support their standards to maintain their current financial situation.

Litigation is emotional draining, very costly and takes years; and that is if you win. Society seems to be heading towards a situation where any injury should be the responsibility of someone else. If you make that easy for someone to sue you or to win the lawsuit, you have lost the battle before you have opened your doors for business.

Standards are written with no intention of being found in courts of law. However, this brief article points to three cases where the standards created by a trade association are used in court against the people the standards were created to help. It does not matter how much research can be found to support the creation of standards when they become the noose around a trade association member’s neck.

If the defendant is faced with a written standard, the plaintiff says they are violating, the expert witness of the defendant has two issues to prove or maybe the defendant must hire more experts. The first is the standards written by the association are not the standard in the industry. The second then is the standard is different.

Proving the trade association did not write standards is difficult. In most cases, it simply becomes an attack on the association showing it is not everything the association says it is. That the association does not represent the majority of people or business in its industry or that the majority of the membership is not accredited. This is an ugly fight.

Marketing is needed by everyone. On top of that we want our business or program to show we are more than good, that we are the best.

It does not matter how great the benefits of accreditation are, if the program is used to prove you negligent in a court of law. Accreditation may bring you more business; however, the cost of that additional business may not be enough to cover the lost time involved in litigation and increased cost of your insurance. Let alone the time and expense you put into meeting the accreditation.

Marketing makes Promises that Risk Management must pay for.

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By Recreation Law    Rec-law@recreation-law.comJames H. Moss         #Authorrank

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[1] CJI-Civ. 9:9 (CLE Ed. 2009)

[2] ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp, www.recreation-law.com

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