FIS establishes new regulations for ski racing helmets. Standards filter down to other ski races and eventually maybe the public.

Basis of the new test for ski helmets is the helmet must survive a drop test that is approximately three feet higher and at a speed approximately three mph faster.

The FIS, (International Ski Federation) has established new regulations for helmets that will be worn in FIS competitions. Those are the world cup level ski races held around the world.

After FIS adopted these new standards, the USSA (US Ski Association) adopted the same standards for many of their races this year and more the following years.

I’m not going to try to interpret the regulations here you are better off trying to figure it out on your won. Seriously, the regulations are the most convoluted work I’ve read and were made to make it impossible to understand. On top of that they make it impossible to copy the information from their website, even off PDF’s. (Why don’t they want this information to be known?)

1)   To show the new helmets meet the new standards they are going to have the CE Mark and conform to one of the following regulations.

a)   DIN EN 1077

b)   ASTM F2040

c)   SNELL S98 or RS 98

2)   If the helmet is designed for GS (Giant Slalom), SG (Super G) or DH (Downhill) racing it must have a conformity label affixed in a non-removable way, at the back of the helmet, in a position not be covered by the goggle strap. The conformity label must contain the text “Racing helmet to conform to FIS specifications 2013.”

Why?

If you want a better ski helmet look for one that meets the new requirements. It can take a bigger impact.

It is going to be a simple helmet, hard ear covers, no spoilers, etc. These helmets are going to be pretty dull, little venting and nothing except the stickers you put on them. However, if you want to protect your head….

What do you think? Leave a comment.

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Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, USSA, FIS, Skiing, Ski Helmet, GS, DH, SG, Downhill, Super G, Giant Slalom, International Ski Federation, US Ski Association,

 

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New Bicycle Standards coming from ISO: ISO 4210:2014

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The New ISO 4210:2014 Safety Standard For Bicycles Coming Soon9bd8773f-de9e-4557-a55b-6d3b2d579dde.jpgThe contents of newly published ISO 4210:2014 Safety requirements for bicycles have been determined by the ISO cycles Technical Committee in collaboration with the CEN cycles Technical Committee. The requirements for bicycles are laid out in nine parts, and classify bicycles for four categories of usage: city and trekking, mountain, road racing and young adult bicycles.

Within the standard’s introduction it states “…that it was developed in response to a demand throughout the world. The aim is to ensure that bicycles manufactured in compliance with the International Standard will be as safe as is practically possible. The tests are designed to ensure the strength and durability of individual parts as well as of the bicycle as a whole.”

ISO 4210:2014 is scheduled to be adopted in more than 30 European countries, including France, Germany, Italy, the Netherlands and the United Kingdom in August of 2015, and highly probable to be adopted by many other ISO participating countries like Japan, China, Israel, and South Africa. More information about the standard may be found by visiting the Online Browsing Platform (OBP) of the ISO website.


AMGA Terrain and Supervision Guidelines? Making more rules does not make things safer. Rarely does that work, look at the laws concerning our highways and the highway deaths. Making more rules does lead to more lawsuits. Again, look at our highways.

The latest actions of AMGA hit a lot of nerves and rightfully so. As usual, the lack of understanding and the desire to create something (not sure what) labeled standards are going to create lawsuits. The new Terrain & Supervision Guidelines won’t solve any problems; they’ll only create new ones.

I’ve attached the new requirements here below, so you can review them yourself. If not, you can download your own set here: Terrain & Supervision Guidelines. I’m not sure why the AMGA has created the new requirements. I’ve been told it is a money thing, I’ve been told it is a safety thing, I’ve been told it is a back door into trying to get permits on NPS lands; I have no real idea. I do know it won’t accomplish any of those goals. I did not contact the AMGA to find out what or why.

Attorneys love to deal in fuzzy it gives them latitude to litigate. The only time they don’t like fuzzy is when something is solid and proves their case without having to work very hard. The new Terrain & Supervision Guidelines are the classic sharp line to help prove the defendant was wrong and everything else is fuzzy so no one really knows how to help the defendant.

Let me reminisce.

I quit providing pro bono legal work to the AMGA over fifteen years ago when another attorney said he could get the AMGA into national parks. I told the AMGA that would never happen. I moved on. Fifteen years later and at least two attorneys failing to pull AMGA guides into parks, the AMGA might be going around to the back door believing the back door will open.

Back doors meaning the NPS employees in individual parks who lead the rescues have to deal with the current concessionaires; who they don’t like (familiarity breed’s contempt). It is always easier to like someone who is sucking up in the belief; you can get them in a park to guide.

The problem is the door is not at any park; the door is in Washington DC no matter what the AMGA wants to believe. It doesn’t start at 1849 C St NW, Washington, DC 20240, the Department of the Interior address, either, but at Congress. Congress made the laws the NPS, and the USFS are enforcing on commercial guides on Federal lands. Until the AMGA can raise millions, probably $10 million dollars to lobby Congress, nothing will even look like it is going to change. And I suspect that the $10 million is not enough because the current companies that own permits and concessions will lobby against it, and they are bigger. Remember the big hotel concessions in the parks also run raft trips, trail rides and work with climbing guides.

However, I’ve also been told that the AMGA has backed off from the position that AMGA guides should be allowed to guide in National Parks.

I have found some legal disasters in the new Terrain & Supervision Guidelines.

The guidelines won’t apply to staff hired prior to 2008. An arbitrary number I guess, or probably the number when the last member of the committee became certified and was hired. I sat through board meetings when the first date of guides to be grandfathered under the UIAGM was determined. It was ugly, funny and basically a turf war. Trial attorneys will tear this up. (How come Guide X made it and Guide Y did not. Guide Y has thousands of year’s more recent experience, and Guide X has not been on a mountain since 08?)

The guidelines require that everything has to be documented “in the guide’s personnel file.” Thank heavens the AMGA has reviewed all HR laws in the US and knows this will not create problems. If personal files are paper, then you better get accordion files. To back this up, you’ll have to collect all the information supporting the requirements in the guidelines first, and then add the review of the supervising guides and the evaluations. Weather conditions, snow conditions, terrain maps, route maps, etc., can take a lot of space in a file folder.

My favorite rule is one that requires a guide who has not made the qualifications yet, must be under the direct supervision of a guide who has met the qualifications. Unless the guide, who has met the qualifications, has to take guests down the mountain, then the two guides can be in radio contact. The rules allow the least experienced guide to remain up high, alone.

Direct Supervision: Direct supervision implies side by side guiding such as two rope teams traveling near by on a glacier or on nearby multi-pitch routes, daily briefings and debriefings about route selection, strategy, and client care. Side by side guiding and meetings should be documented in the guide’s personnel file. It is the supervising guide’s responsibility to ensure that assigned tasks are appropriate to a guide’s training and ability. It is allowable for the mentored guide to be in radio or phone contact when turning around with clients to descend.

What if the guide who has been certified, leaves to summit with a group of clients, can the one who hasn’t been certified stay with the clients who don’t/can’t summit. They’ll be in radio contact?

So you make a rule, then you make an exception to the rule. On Denali in a few years, this will be a disaster. The new concession requirements for climbing concessions are going to reduce the number of guides with a commercial group. Rescues will be done without commercial guides because a guide won’t be able to leave the group and work the rescue with these guidelines. (Rescues in the future on Denali are going to be a mess with the latest version of the commercial rules anyway, that is a whole other article.)

The languages of the guidelines are full of legal land mines. Here are some of my favorites.

…who are appropriately trained, tenured or certified

It is the supervising guide’s responsibility to ensure that assigned tasks are appropriate to a guide’s training and ability.

Certified supervisors

…is not of wilderness in nature

My favorite are the terms applied to different people.

Apprentice Guide

Assistant Guide

Aspirant Mountain Guide

Certified Guide

So does that mean you are a patrol leader or a star scout? More importantly do you get a badge?

Here are some more phrases that seem innocuous but don’t make sense.

The stated goal of the new accreditation standard is to have all field staff, except those meeting the 2008 exemption, be trained by the AMGA for the terrain they work on.

So guides who met the requirements prior to 2008 cannot have a lick of training, sense or experience now and not be up to date on the requirements.

How is this going to happen? So I have a concession to guide on Denali. Am I supposed to bring you on one of my trips to tell me that you can train me on this terrain? What about the NPS on this issue and their current regulations. I guess you can come, go sign up and pay the fee, and I’ll take you where I am permitted to go.

AMGA courses are considered the baseline technical training for specific terrain types and are not a substitute for in-house training.

Yet above, they said this is the best you can get? What is this going to mean in court? The AMGA is just the baseline, yet the states the IFMGA (UIAGM) are now the baseline.

(The IFMGA (UIAGM) was founded to allow guides in Europe to guide everywhere and is the International Organization the AMGA must follow.)

I doubt that this has been run by the IFMGA (UIAGM).

Do Something

What’s going to happen? The big concessionaire members of the AMGA are either going to leave and financially sink the AMGA or revolt. No one will be happy either way. They don’t need greater chances of being sued. People die on mountains, and I would guess these new guidelines are not going to change that. They know the terrain and have in place, with NPS approval a way of guiding customers and training staff.

I have not taken the time to compare these guidelines with current NPS regulations for various mountains. I suspect there may be some conflicts. What is a concessionaire supposed to do, not follow the NPS and lose their permit or not follow these. Let’s see I pay money to the AMGA I make money with my NPS permit. Who am I going to follow?

These guidelines, like all standards for people, will only create a checklist for the attorney representing an injured client to sue. The guidelines will be taken and incorporated in interrogatories about each member of the guiding team. One misstep on the mountain or in discovery and these guidelines will change the lawsuit from what we can defend to how much we have to pay.

Don’t get me wrong. The American Mountain Guides Association has some of the greatest people I know as members and as an organization has accomplished tons. However, it is faced with an impossible job with no money to accomplish the job: the promise the AMGA made to the IFMGA in 1993 is never going to come through.

However, making standards, guidelines for people do not stop lawsuits; they only help the plaintiff’s win lawsuits.

Click on the link to download your own copy of the Terrain & Supervision Guidelines.

See the following articles where association guidelines were used to sue the association member:

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp                                       http://rec-law.us/zmKgoi

Great article about the risks of an organization creating standards for members of the industry – and I did not write it                                                                              http://rec-law.us/1rk8oHR

If your organization says you do something and you are a member of the organization you better do it or be able to explain why you did not                                   http://rec-law.us/1gOLpju

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp            http://rec-law.us/y7QlJ3

Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release            http://rec-law.us/1dqBdxo

Plaintiff uses standards of ACCT to cost defendant $4.7 million                   http://rec-law.us/11UdbEn

So if you write standards, you can, then use them to make money when someone sues your competitors            http://rec-law.us/1gCGce8

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent                                                                               http://rec-law.us/wszt7N

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What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer,  IFMGA, UIAGM, AMGA, Terrain, Guidelines, American Mountain Guides Association, Mountaineering, International Federation of Mountain Guides Associations,

 


ASTM standard I abstained on is a guaranteed lawsuit starter

I’m hurt because you did not check the weather correctly!

So this is the new standard that I was asked to vote on recently.

Withdraw With Replacement to F2993-2013 Guide for Monitoring Weather Conditions for Safe Parasail Operation WK47376 PDF (8.0K)

(SEE VOLUME 15.7)(CONCURRENT WITH .6500)

TECHNICAL CONTACT: Matt Dvorak

daytonaparasailing@hotmail.com

(386) 547-6067

When I don’t fully understand the issues or have not seen the actual standard (yes it is a little crazy trying to read what you are voting on sometimes) I abstain. I did so on this standard also.

Besides voting against a standard requires you to articulate the reasons why you are voting no on the standard. “This is stupid,” is not a good reason according to the ASTM. Nor is “this is going to help plaintiff’s win lawsuits” a valid reason for voting no.

However, can’t you see this doing nothing but creating legal nightmares.

“You said you checked the weather, and you said to launch, but the wind changed because a front moved/truck came by/that is what the wind does, and I crashed. You owed me a duty to check the weather; that duty is in writing, and you agreed to it by becoming a member of the ASTM and agreeing to the standard (or not agreeing to the standard; you are still held to the standard), and my injuries are a result of you not following the standard.”

Duh

Somewhere, the ASTM, there is an idea that the creation of standards stops lawsuits, but even the ASTM can’t show any proof of that.

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

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Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, ASTM, American Society of Testing & Material, Parasailing, Paragliding, Hangliding, weather,

 


Great article about the risks of an organization creating standards for members of the industry – and I did not write it

The article exams the ways that standards can come back and be a liability for the organization that created them.

The Center for Association Leadership is the trade association for non-profit association directors. Its purpose is to provide information and education for non-profit associations, their directors and their boards. Part of that education is articles by attorneys to outline the risk areas of association.

One article was sent to me by one of my trade association clients. It is titled Certification and the Law. The title is a little misleading. The article is really about standards rather than certification. If you read the article you will see the term certification is used interchangeably with standards.

The article talks about the risks of doing so first and discusses the National Spa and Pool Institute litigation in the late 90’s that put the association in bankruptcy. The legal costs alone exceeded the insurance available to pay the claim.

Thankfully, full-scale judicial attacks are relatively rare, but as the cases involving the National Spa and Pool Institute show, such claims can be devastating. NSPI lost a jury trial in 1998 which, inter alia, alleged that NSPI had failed to exercise a duty of using “reasonable care” when it promulgated its swimming pool standards. NSPI’s legal defense costs greatly exceeded its insurance coverage. To avoid being shut down by the jury’s verdict and in order to post a bond for the appeal of the case, NSPI filed for Chapter 11 reorganization.

There are many other legal issues discussed in the article including educational programs etc. but I’ll quote sections concerning creating standards that I think are important.

Antitrust. Certification programs beg antitrust scrutiny, given that the object of standard setting is to bring competitors together to set criteria for, among other things, restricting entry into a field. Antitrust law prohibits anyone from unreasonably creating a barrier to practice in a profession. Therefore, the certification organization must make sure that all of its eligibility requirements are reasonable-that is, relevant to determining the professional’s skill level and not so high as to block the majority of professionals from being eligible to apply for certification.

The article discusses the liability requirements to hold an association liable for its standards.

Third-party reliance. If a customer, patient, or employer is injured by a certified product or professional, it is possible that the certifying organization will be held liable for negligence or negligent misrepresentation. The argument follows that the person relied on the certification as a guarantee of competence; because the certified product or professional did not perform competently, the certification should not have been granted. Thus, it is argued, the standard-setting organization should be liable to the injured person for its mistaken or negligent grant of certification.

In order to find liability, the injured party generally must prove that

    the organization should have known better than to grant certification;

    the organization should have known that its mistake could result in the injury; and

    the injured party was justified in relying on the certification as a guarantee of competence.

There are very few of these types of lawsuits. The article discusses lawsuits that have been filed.

Among those that have arisen, several have held that the organization is not liable in the case of products when it did not manufacture the product that caused the injury and did not exercise control over the manufacturer. Nevertheless, it is clear that liability may be found when certification is negligently granted or maintained. The deciding factor is the degree of control that can be shown that the standard-setting program exercised-or should have exercised-over the product or professional.

As the article points out, lawsuits against trade associations are rare, however, if they do occur, they can be devastating.

See Certification and the Law

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Certification, Standards, Non-profit, Trade Association, Center for Association Leadership,

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Another trade associations confuses marketing and law: if you don’t understand the legal meaning of a word don’t use it like you do

ATTA article promotes goals for guides worldwide by calling them standards which in the US are the legally lowest possible acceptable level of acting.

The Adventure Travel Trade Association recently posted an article showing their research indicated that no standards existed for guides. Those standards were promoted by the association as needed to promote quality.

We view standards as critical to the future of the adventure travel industry’s success. As it is growing radically in participation numbers, it’s key that the operators expanding and joining the industry be of the best quality.

Their research is slightly flawed. Several states have laws regarding guiding, Colorado, West Virginia, Montana and California. Furthermore, the UIAA control and create guide standards in Europe, the International Climbing and Mountaineering Federation. In Europe, these guide standards are the law in some countries.

The person who promoted the idea for the ATTA gave reasons for the need for standards.

“Why do we need a more universal standard?” asked Moore, “Because the adventure travel sector is growing, because tour operators around the world are demanding it, and because destinations need it to legitimately promote adventure activities”

The idea is to create standards in a proposed group in five areas. Those areas include medical care and technical knowledge.

Based on the article clearly the ATTA is attempting to create qualifications for being a good guide. The unanswered question is, is this being done for safety reasons or for marketing reasons?

No matter the reason, the attempt will create legal problems. Legally, standards are the proof of the poorest quality not the best. A legal standard is the lowest acceptable level of care. If you fall below the legal standard, you have breached a duty of care you may owe to someone. Three examples of this are:

New Jersey Model Jury Instructions state:

5.10A            NEGLIGENCE AND ORDINARY CARE – GENERAL

To summarize, every person is required to exercise the foresight, prudence and caution which a reasonably prudent person would exercise under the same or similar circumstances.  Negligence then is a departure from that standard of care.

The Restatement of Torts is a compendium of the law.

Restatement Second of Torts, section 282, defines negligence as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”

Colorado Jury Instructions, the law given to a jury when they go to the jury room to make their decisions about a case defines standard as:

CJI-Civ. 9:9 (CLE Ed. 2009)

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.”

If you fall below the standard of care and there is an injury you have breached a duty of care to a guest. You are on your way to helping the injured guest prove you are negligent.

Remember negligence is:

·         Duty

·         Breach of that Duty

·         Injury proximately caused by the Breach of Duty

·         Damages

In order to determine if there was a breach of a duty, the jury must determine the standard of care which the defendant fell below. If a trade association lists the requirements for the standard of care, puts them on the Internet or in a book, then the association has helped put its members in a courtroom. The plaintiff instead of struggling to establish the care was below the acceptable level need only to refer to the trade association as proof of the association member’s negligence.

Standards are Not Goals or Minimum Levels of Knowledge or Skill

It is obvious from the article that the association believes the standards will be goals to which its membership will strive for its guides to attain. You can probably post on your door or website that your guides meet the standards as established by your trade association. If that happens, then no matter how much the word safety is thrown out there for proof of the reasoning, the actual reasoning is a marketing program.

Either one will still sink a member.

In effect, you are handing the attorney for an injured guest the keys to open your bank account or insurance policy and take out money by creating or having an association create standards for your industry.

If you want actual examples of this look at the Climbing Wall Association or the Association of Experiential Education. The Climbing Wall Association changed their standards to best practices, and the AEE is about gone. Is the AEE having problems a result of their “standards?” I don’t know. I do know that both organizations were big in creating standards, and their members were sued a lot. See Payouts in Outdoor Recreation

If you don’t have the time or ability or your standards are beat to a pulp in a courtroom then you starting writing meaningless crap for standards. “You should have adequate guides for the number of guests in your group.” That statement has no value and thankfully brings nothing to the courtroom, so why kill a tree by creating it?

Besides can you create one set of standards that work worldwide let along across state lines?

A medical standard is the easiest to use as an example. A standard is created based on US or UK realities. Advanced professional first aid care (EMS) is available within roughly a four-hour window. Your guides are trained in first aid based on that four-hour window.

These standards are then applied to an area where there is no EMS. Transportation to a hospital may take days, and the hospital may not come close to the idea an American may visualize when they think of hospitals.

If a US guest is injured in that area of the world will the standard apply? Yes, you agreed to the standard or the association created the standard. If nothing else the jury will see the standard as what they should use to measure the care the injured guest received.

Are you going to argue to a jury that the standards not to apply because you took the US or EU client to a third-world country? Then the jury may look at you and determine either you should have done something to ensure the safety, which you did not, or you should not have gone there. Why, because you can’t meet the standard of care, your organization created.

Look at a simple cut. On a mountain in Nepal, you would immediately stop the bleeding and bandage the wound. In some jungles of South America or South-East Asia, you may want the wound to bleed a little to help clean the wound of any bacteria or other nasty’s that entered through the cut.

How do you write the standard for Kilimanjaro where the first two days are hiking through a jungle, and the next days are spent on the mountain?

The easiest example was the classic mistake of the AEE’s first set of standards. The standards stated you must pee 100 yards from any water. In the Southwest on river trips, this may get you fined by the federal agency managing the river you are rafting. There you pee in the river. What do you do if your standard violates state or federal law? What if your standard violates a religion?

Time and Upkeep

The biggest issue with standards is upkeep. It takes months, sometimes years to create standards, how do you keep them up to date? You have navigated your way through the difference requirements of different countries, trips and laws and then a law changes, a technique improves or better first aid care becomes available.

How do you go back and re-write the standard? When do you re-write the standard? How do you communicate the new standard? How do you convince your members to change to the new standard after they have spent time training their employees on the old standard and invested money in meeting it?

If you are using the old standard after a new standard comes out do you have a grace period? (No, this was a trick question.)

Just create great ideas. Educate members and guests on what to look for in a good guide. Provide education so guides can get better.

Don’t hang a noose around your member’s necks and call it marketing.

See ATTA Advances Conversation on Adventure Guide Qualification and Performance Standards

For more articles on this topic see:

If you mix up your language, you will be held to the wrong standard in court

Marketing is marketing and Risk Management is not marketing

Can a Standard Impeded Inventions?

If you mix up your language, you will be held to the wrong standard in court

If your organization says you do something and you are a member of the organization you better do it or be able to explain why you did not

Words: You cannot change a legal definition

For articles on Association Standards have been used to sue members see:

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp

Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release

Plaintiff uses standards of ACCT to cost defendant $4.7 million

So if you write standards, you can, then use them to make money when someone sues your competitors

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent

What do you think? Leave a comment.

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Copyright 2013 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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Alaskan Supreme Court upholds releases for climbing gym and sets forth requirements on how releases will be upheld in AK

Decision points out what not to do in a release which has great information for everyone.

Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153 State

Plaintiff: Claire A. Donahue

Defendant: Ledgends, Inc. d/b/a Alaska Rock Gym

Plaintiff Claims: negligent failure to adequately train and supervise its instructors and violations of the Uniform Trade Practices and Consumer Protection Act (UTPA)

Defendant Defenses: release

Holding: for the defendant

Year: 2014

In three prior cases, the Alaskan Supreme Court had stated that releases were valid under Alaskan law; however, the releases in front of the court for review, failed for specific reasons. In this case, all the requirements to write a release according to the court were present.

The plaintiff in this case had decided that learning to climb was her next goal. The plaintiff’s second class was bouldering. At one point, she was 3-4’ off the ground and told to jump down by a gym instructor. The gym used mats for its landing padding. She jumped breaking her tibia in four places.

The plaintiff then sued the climbing gym for negligence and violation of the Uniform Trade Practices and Protection Act (UTPA). The trial court upheld the release and dismissed the claims of the plaintiff, and the plaintiff appealed.

Summary of the case

This case is full of interesting and useful information. I’ll tackle it by subject matter rather than the order the court goes through it.

UTPA

The UTPA as identified in Alaska can be found in some form in all states. It is a consumer protection statute to provide consumers with greater benefits and damages if they are ripped off by someone or a business. Most are called consumer protection acts. Alaska joined the majority of states and said that consumer protection statutes did not apply to personal injury claims. The court dismissed this claim.

Offer of Judgment

The court also looked at the offer of judgment made by the defendant and resulting attorney fees awarded to the defendants. In Colorado and Alaska and probably most states, if the defendant makes an offer of settlement or offer of judgment, they are stating we will give the plaintiff $XX in this amount, and the case ends. However, if the plaintiff does not win that amount or a percentage of that amount, then the defendant can be awarded attorney fees or a percentage of its attorney fees.

The statute has a two-prong approach. First, it eliminates a lot of lawsuits quite quickly when the damages are close enough to the offer made by the defendant to get the plaintiff to think. It also makes the plaintiff to do an honest evaluation of the amount of money they can realistically receive in a lawsuit.

Here the plaintiff did not recover any money so the defendant was awarded 20% of their attorney fees per the statute.

Relevant Facts of the Case

The actual facts are stated in the decision are important.

Donahue completed her first class on harnessed climbing on March 23, 2008, and returned for a second class on May 11. When class began she was told that the day’s focus would be on bouldering, or unharnessed climbing on low walls. She did not express any hesitation. She climbed for almost two hours, successfully ascending and descending a number of routes. During this time, she saw other people drop from the wall without injury. After another successful ascent at the end of the lesson, she felt unable to climb down using the available holds. Her feet were somewhere between three and four-and-a-half feet from the ground. Her instructor suggested that she drop to the mat and told her to be sure to bend her knees. Donahue landed awkwardly and broke her tibia in four places. She was attended to immediately by Rock Gym personnel and a physician who happened to be present.

The court pointed out several facts surrounding the case. The ones in favor of the defendant were:

There were signs posted around the gym warning of the dangers of climbing. The plaintiff had never climbed before, but she was a runner, cyclists, kite boarder and had worked as a commercial river guide in Colorado. The plaintiff testified that she understood the risks of the activities and felt competent to make decisions about that risk for herself.

The ones in favor of the plaintiff were: Advertising of the gym gave the impression to the plaintiff that learning with the defendant was a safe way to learn how to climb. The defendant had run ads in the newspaper that stated:

[T]the only safe place in town to hang out.

Trust us, it still exists. . . . [E]very child in your family will be reminded of what it’s all about — friends and fun.

[Y]ou have nothing to lose and everything to gain.

(Marketing makes promises that risk management must pay for?)

Analysis of Prior Release law by the Court

The court outlined the three reasons it had thrown out releases in three earlier cases. The first decision, a release was used as a defense to a claim by a passenger in a plane that crashed.

We ruled that “[i]ntent to release a party from liability for future negligence must be conspicuously and unequivocally expressed.” We also held that a release must use the word “negligence” to establish the required degree of clarity, something the release in Kissick did not do. Further, since liability for “death” was not specifically disclaimed and the term “injury” was ambiguous, we held that the release did not apply to claims for wrongful death, construing it against the drafter.

The second release was thrown out in a case involving driving all-terrain vehicles. The public policy argument was reviewed in this case, and the court found a recreational release did not violate public policy. The court did find, however:

We did decide, however, that the release did not conspicuously and unequivocally express an intent to release the defendants from liability for the cause of the exact injury that occurred — a rollover when the plaintiff drove over a big rock hidden in tall grass. The release covered the inherent risks of ATV riding, but we found that it also included “an implied and reasonable presumption that the course [was] not unreasonably dangerous.” We found there to be fact questions about whether “the course posed a risk beyond ordinary negligence related to the inherent risks of off-road ATV riding assumed by the release,” and we held that summary judgment for the defendants on the basis of the release was therefore, improper.

The third decision involved the same defendant as in the present case, Ledgends, Inc. In that case the plaintiff fell and her foot slipped through two floor mats injuring her.

…language in the release that was problematic because it was internally inconsistent: the release stated that the gym would try to keep its facilities safe and its equipment in good condition, but it simultaneously disclaimed liability for actions that failed to meet such standards.

This last issue is critical to review when writing a release. See below.

Requirements for a Release to be Valid under Alaskan law

The court then outlined the six things a release under Alaskan law must meet to be valid.

(1) the risk being waived must be specifically and clearly set forth (e.g. death, bodily injury, and property damage);

(2) a waiver of negligence must be specifically set forth using the word “negligence”;

(3) these factors must be brought home to the releasor in clear, emphasized language by using simple words and capital letters;

(4) the release must not violate public policy;

(5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and

(6) the release agreement must not represent or insinuate standards of safety or maintenance.

Simply put the requirements of a release in Alaska are simple clear and very precise. I would surmise that 90% of the releases written in the US would fail to meet one or more of the requirements required in Alaska.

A review of the specifics required by the court is educational.

1.       You can’t just have a one-paragraph release waiving negligence. Under Alaskan law, you have to list the possible risks. Here the court found the list describing what can happen to you in a climbing gym adequate. Falling is an obvious one for rock climbing but you probably also have to list rope burns, different ways you can fall, belayer issues as well as equipment failure.

You also cannot use one release to cover a multitude of risks anymore. The risks of rock climbing do not include drowning (outside of Thailand) which are a part of rafting. You will have to have a release for each group of risks to identify those risks.

2.      You have to have a release that releases the defendant from negligence. Alaska is not going to allow you to skirt the issue. Your release must use the word negligence and have the signor, sign away their right to sue for your negligent acts.

3.      The important language cannot be hidden, small type, etc. More importantly; the entire document must be a standalone document, and the releasing language set out, emphasized and capitalized.

Under Alaskan law, I would suspect that most “health club” releases found in the membership sign up may not meet these requirements. Those are documents were the majority of the language covers your promise to pay and there is a paragraph or two in the middle waiving any claims you may have.

(The language concerning payment allows the health club to sell the contract to a third party. The health club receives a fixed amount, usually about 50% of the total value immediately. The third party is then the one sending you the demand letter and trying to collect from you when you quit going to the club.)

4.      The release of liability language must be specific. This issue is similar to the first issue, but it requires specific action in the release. You must state you are not liable for negligence AND the risks you outline in the release and others. This requires you to have more than a simple negligence clause. Your negligence clause must be written to cover all aspects of the risk you are required to put in your release.

5.       The Fifth and Sixth requirements are similar. This is one I’ve been arguing for years. You can’t promise one thing and then not meet the promise. The court specifically stated you cannot say your state you follow a standard and then fail to meet that standard. (Sound familiar?)

If you say you follow the standards of the ACA, AEE, CWA or any other organization that writes standards for your activity you must meet those standards! You cannot say your equipment is kept up to date and then have shoddy equipment. You can’t say your employees are all trained in first aid and have a custodian who is not. No longer can you say you meet 80% of the standards or hope your release will get you out of those you don’t meet. If you state you meet the standards, yours or others, Alaska release law (contract law) states you must meet the standards.

If you marketing is making a promise that you fail to meet, in Alaska your release cannot get you out of failing to meet the promise. Whether or not this applies to advertising not found in the release will be interesting. However, I suspect if the plaintiff says I want to the defendant because their door said they meet the standards of ABC, and they failed to meet those standards; the defense in Alaska may not include a release.

The defendant was successful; the plaintiff’s claims were dismissed, and we have a decision providing an outline on how releases should be written in Alaska.

So Now What?

Many times in an effect to “soften” the way the release sounds to your clients you may make statements or promises in the release about how you or your equipment will operate or be maintained. In this decision, the court pointed out in its prior decision that those promises in a release will void the release if they are not kept.

There is no way to “soften” a release. Any time you do you are creating a contract with cross purposes. On one hand, you are attempting to prevent a lawsuit if someone is injured. On the other hand, you are promising that people won’t be injured. If you are promising someone won’t be injured why have the release? More importantly the courts have found that you can’t promise safety and when you fail to meet your promise, use the release to prevent the lawsuit over your promise.

A release is a contract. This court looked at the entire contract and found that promises in the contract were met. Promises in prior contracts that were not met voided the release.

This decision places stricter requirements on releases then in several other courts; however, the decision outlines how to be successful when writing a release in Alaska and all other states.

What do you think? Leave a comment.

If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn

Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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

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