Do you need to tell your guests they could be hurt, and you are not responsible?
I was walking around in a tourist town on Maui, HI the other day and spotted several brochure racks advertising all sorts of outdoor recreation activities. (Warning, reach for brochures at your own risk; they are guarded by timeshare sales people. “Aloha, where are you from?” in the local language means “I have a time share to sell means,”) I grabbed one out of curiosity and then started looking through all of them. None of them say anything about the risk of the activity. The fact you could be injured or that the business was not responsible was nowhere on any of the brochures.
Try explaining to a timeshare salesman that you want to look at the brochures and not book a trip and not buy a timeshare. Then explain why you are looking at the brochures. That was very effective in stopping the “pitch.” I guess the liability warning on brochure talk I can give is effective against time share sellers.
I always think that when you walk into a courtroom, you should be able to say to the jury, they knew before they signed up (paid their money) they could get hurt. Although not a defense, the statement “I never knew I could get hurt” strikes a chord with juries.
A brochure with a warning on this defeats that argument. So does your website.
On top of that, is there a moral or ethical obligation to let someone know, that there is some risk in your sport, every sport. The smiling faces on the brochures (main where the same faces, by the way) were for marketing. You want people to have fun, but if someone does not….
Am I wrong? Is it OK when reaching for the dollar or the credit card of your guest to allow your brochure to do all the talking? What if you tell them of the risk after they have paid? Is that “fair.”
How is that going to be viewed by the jury? If I were representing the plaintiff, I would project a picture of the plaintiff in the hospital next to the picture on the brochure on the wall. I would ask the jury what is missing in that picture compared to what occurred to my client.
In the hospital, my client does not look beautiful or happy.
What do you think? Leave a comment.
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Correctly interpreting the billboards requires a little looking?
A new marketing campaign by Mission Beach Australia is posting billboards that say
- Get High
- Get Wet
- Get Laid
Next to each is a picture which further clarifies the intent.
- Get High has a picture of someone skydiving
- Get Wet has a picture of people whitewater rafting
- Get Laid has a picture of someone sleeping.
The town of Cairns in the area is a hub for whitewater rafting, skydiving, and diving on the great barrier reef. Most tourists bus in for the activities and bus out that night. The purpose of the billboards is to get the tourists to stick around a little longer.
This campaign follows last year’s campaign slogan which was “Cairns – Great Up Top, Fun Down Under.” Those billboards featured a young woman in a wet t-shirt and the copy “four play” and “get high before breakfast.”
When locals receive complaints about the marketing campaign they are told to “lighten up,” another great backpacking idea.
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© 2010 James H. Moss
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Those of you who know me are probably falling over with laughter at the mere thought of me taking on anything to do with economics. However, we need to discuss inflation and deflation: The inflation of ratings and qualifications concurrent with the deflation of actual injuries and other issues.
In the past ten years, all North American Rivers and probably most of the world’s rivers have gotten harder to run. I make that statement with a straight face because I have read brochures from all over the world describing the difficulty of a river trip. The Arkansas River has two guidebooks that were written over fifteen years ago. Both guidebooks describe Brown’s Canyon between Buena Vista and Salida, Colorado as a Class III run. Both guidebooks describe the Royal Gorge just west of Canon City as a Class IV run. However, the majority of brochures from the 60+ rafting companies on those rivers describe Brown’s Canyon as Class IV and the Royal Gorge as IV+-V. The river got harder to raft, kayak and boat.
Scarier still, the State Government supports this inflation of the river rating, even though their own documents state those sections are Class III and IV. Either the river has gotten much more difficult or the outfitters on the river have inflated the difficulty in an attempt to market the river.
Let us look at this seemingly innocuous marketing technique and the legal effects it may have.
Scenario I: The owner of the Company is on the stand and is describing Brown’s Canyon. There is a tendency for the owner to want to downplay the difficulty of the river to prove it is a safer trip. The Owner will tell the jury how easy the trip is, and how the guidebook describes Brown’s Canyon as a Class III run. On cross-examination, the owner is presented his own brochure that describes the run as a class IV run. During closing arguments, the Owner is described as a liar. He says one thing on the stand, but advertises another thing to the public.
Scenario II: Same as above, but during cross examination the Owner is pressed on the differences. The Owner states that he is just increasing the difficulty for marketing purposes. The Plaintiff’s attorney presses the issue with the owner eventually admitting that he lies to the public in order to get the public’s money.
Scenario III: The Owner is on the witness stand and is presented with his own brochure. He states that Brown’s Canyon is a Class IV run. (What choice did he have, his brochure said it is class IV.) When asked what other outfitters are considered “good outfitters in Brown’s Canyon, the Owner describes several. He is then presented with both guidebooks, which clearly state that Brown’s Canyon is a Class III. He is also presented with the good outfitter’s brochures which state Brown’s Canyon is a Class III run.
Scenario IV: Same as III, however, the owner insists after being confronted with his brochure that Brown’s Canyon really is a Class IV run. The Plaintiff then brings in documentation, magazine articles, books and other evidence to show that running a Class IV river requires additional guide training, better boats, and more safety equipment, etc. The Owner has, based on his testimony, proved he did not meet the standard of care for a Class IV river.
Each of these situations places the Defense in a position where you never want to be! The person on the stand is proven a liar or at least admits he or she is misleading the public. The final scenario is death by stupidity. Instead of “can we win,” the discussion turns to how much will this cost.
I was in Canada at a Risk Management Conference where I brought this idea up and the Canadians laughed. They all knew about the American penchant for inflating the risk and thought it comical. Canadian law does not allow commercial rafting on Class V Rivers. The group named numerous rivers they had run that they believe were overrated by the American Outfitters.
Rivers are not the only things that suffer inflation. Guided mountaineering and rock climbing trips are inflated. Staff qualifications are a serious issue.
Many times brochures are printed to last several years. A brochure printed with the hope that it will last for years can create a serious inflation problem. It is common to see staff qualifications placed in the brochure. A group of employees/guides who have worked for one company while going through college may acquire four years of experience and EMT training. A brochure printed at the height of this staffing success would be remiss to not highlighting the guide experience and qualifications. However, eventually those guides move on and the company is faced with another group of first year guides with basic first aid training. The brochure touts the previous group of guides’ experience and the cost of reprinting the brochure is high. So, the outfitter continues to use the old brochure.
Scenario V: A large group arrives at your shop for a five-day backpacking trip. The Group Leader does this annually and does not recognize any of the guides. After talking to several, he realizes last year’s experienced guides have moved, and this year, there is a brand new crop of guides. He walks into your office with a brochure in his hand and is concerned about the trip.
Scenario VI: The Company Owner is on the stand for a trial where the issue is a decision made by the guide. The guide has already been on the stand and testified to her experience and qualifications, as well as to that of the other guides in the group. The Owner is faced with his own brochure, which advertises experience, training and qualifications not met, by any of the guides on the trip.
In each of these hypothetical scenarios, the outcome could be disastrous because the information provided to the public was not true.
In the same way, Deflation is also another problem in the outdoor recreation or hospitality industry. Deflation occurs when someone is hesitant about taking the trip and that person, group or leader is assured the trip is not as difficult as his or her mind has imagined it to be.
Scenario VII: A local school district is advertising for bids. They want to do a three-day canoe trip for their middle school. A local raft company has a permit for a class II section of river but nothing else. The Raft Company is competing against several canoe companies for the business. During the pitch meeting with the school district, the Company owner assures the School District that Class I water will bore the middle school kids, and they should under take a Class II trip. The Raft Company also provides more gear because they will include a raft to haul gear on the river. During the trip, the canoes are continually over turning, and the kids are miserable. The School District wants their money back.
Scenario VIII: The rock-climbing guide is having a slow week. A Midwest family is in a park and thrilled by the rock climbing. Climbing guide assures them that climbing is easy and anyone can do it. Later while frantically struggling on a pitch the Midwest customer falls and suffers a heart-stopping fall.
In both situations statements made at the outfitters operation have come back to haunt the outfitter. That line between bringing business in while not scaring it away is sometimes quite thin line and easily crossed.
In addition to the obvious issues in the last two scenarios, an additional problem arises. How are the statements made by the Defendant Company justified with the information in the release? In the last scenario, the Midwest Family after reading the release may ask more questions because the properly written release is honest about the difficulty. One Court in Colorado has stated that a statement made by a guide can void a release. As such, any comment made to induce someone to undertake a trip may blow the release right out of the courtroom.
Most of us by now have learned that any statement concerning risk or injuries can be dangerous. A brochure that advertises “No major injuries” is now trash after the first injury occurs. Similarly, any statement as to how “safe” the operation will always come back to haunt the company.
Equally dangerous I believe is information communicating a “family” activity. No parent is going to place his or her child in a dangerous position. A family-oriented activity is therefore, by definition “safe.” I have yet to see this occur, but I believe a sharp attorney can take the issue of marketing in a brochure and compare it to the information in the release. If the activity is as dangerous as the release states, advertising it as family oriented could be problematic in court.
Although statistically, we might be able to argue that compared to numerous other family activities, the Outdoor Recreation Activity was safe; a jury will undoubtedly concentrate on the reality. The activity was advertised as family oriented. “After hearing what happened, I would not allow my child to go. Therefore, it was not a family oriented activity; it was dangerous. The Outfitter lied.”
Contrast this with the ethical duty to inform your guest, participant or client of the actual risk of the activity, and you may believe you are walking a tightrope. However, the lines are broader than you might expect. The ethical viewpoint is probably the better way to view this entire issue. Is what you are telling the person the truth? Is what you are telling the person what you, as a parent would want to hear if your child was undertaking the activity? Would your mother accept what you are saying or would your ear be yanked, as you are lead to a corner to “contemplate your actions?” If you can pass those tests, you should not be running any liability traps.
What do you think? Leave a comment.
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And if you did turn it into a bigger disaster try not to make an even bigger disaster
There has been a ton of issues flying around the world over BPA and finding it in container you use to drink from. It started with plastic water bottles which sent plastic bottles to the land fill and sent metal ones soaring in sales. Everyone picked up metal, stainless steel water bottles. You immediately found them in bicycle water bottle catches, on playgrounds and school teacher desks. Then it was discovered that stainless steel water bottles were lined with BPA.
In the mean time the public and Wall Street saw the metal water bottles sales soaring. People were afraid of BPA and plastic and the stainless manufactures benefitted from the fear of plastic. Then the stainless steel water bottle manufactures admitted that their bottles were lined with BPA also. That was a good and honest move.
Now the stainless water bottle manufactures are trying to redeem themselves and they are blowing it. When the plastic water bottle manufactures got caught, they argued that the BPA did not leech into the water. They lost this fight, they converted and they started selling again.
The stainless steel bottle makers tried to make this argument/defense again, there was no BPA in your water. Stupid move number 1. Don’t learn from the guy who screwed up big time and try the same move.
Stupid Move number 2 is continue to try and dodge the issue. In a post, SIGG and the Problems of Transparency several different arguments are being made to justify the cover up. Such stellar examples include:
- We are not as bad as the other guys
- We are not the first people to lie to you; you should be used to it.
- It did not cost you millions to bail us out
- There are bigger fish to fry
Give me a break!
Look the issue is not who is bad, the issue is I spent money on the bottle sitting in front of me. You knew I was buying it because of my fear of BPA in my water bottles yet you kept quiet. You were silent knowing I was buying your bottle to avoid BPA, and your bottle was lined with BPA.
This is not a government issue, this is a personal issue. This problem did not occur on Wall Street the problem is sitting on my desk in front of me. I’m starring at the problem and I feel ripped off.
At least the plastic guys did not lie to me once the information was out and they never said we are not as bad as the other guy.
If you have a PR problem and you don’t want to turn it into a legal problem you better come clean the first time and stay clean the rest of the time. (See Class Claims Toxin Was in Aluminum Bottles and Caddell & Chapman files class action complaint against SIGG.) Consumers feel duped, crap even I feel duped
Covering up works the same way as hiding under the covers, eventually people will see you under the covers. When you get caught telling the world it’s not you or that your brother or that your brother did something worse than you, your parents did not buy it. Telling consumers there are bigger fish to fry does not matter to a consumer. Let the fish fryers deal with those issues. I want to feel better about being ripped off.
For other articles about this issue see:
For other comments about PR disasters see How not to respond to a product liability claim or How to turn a mess into a legal disaster.
I read an interesting article about a zip line that employees of Google has strung between the Google campuses. There is a new building on the other side of a ditch from the main campus and a long drive around. The main campus is where all of the employee benefits are like “lobsters for lunch.”
The zip line from the photographs appears to be about 10′ above the ditch and guessing less than 20′ wide. The ditch is too wide to jump and obviously who wants to drive to lunch.
However the city took the zip line down. Probably and this is purely a guess for liability reasons. The liability of falling 5′ into dirty water is pretty big……
We have to realize that what we do in our sport, what we take for granted scares the heck out of most other people. What looks like fun and an easy way to get to lunch to a 20 year old looks dangerous and scary to a 50 year bureaucrat. We work on the river, in the cave or above ground on a zip line or challenge course every day. We are used to what we are doing. It is our backyard, our office. We go to work by putting on a harness or a life jacket and think life is wonderful.
You have to remember that everything we take for granted and do every day is a new experience for our customers. You can tell when you hand them a harness or PFD and they just stare at it. We approach the first rapid and they get buzzed or nervous. We climb the tower, sometimes forgetting to clip in and they check their harness and tie in half dozen times before putting a step on the first ladder.
You have to remember this way before and way after any incident. You need to tell potential customers exactly what they are facing, from their point of view. Walking a balance beam on the ground is easy. Walking a balance beam 4′ in the air at the Olympics is terrifying. If it were not so, no one would care or watch.
You also must realize this after someone is hurt. Family members are not going to understand why you put their loved one at risk. They can’t fathom any recreation or vacation as anything other than Disneyland.® Why would anyone go to be hurt doing something.
You also need to remember that what we see as dangerous the cartoons in our life may see as normal.
Children of a 71 year old woman who died in a sauna are suing the fitness club. The deceased had high blood pressure but had been cleared to work out by her physician. She went into the club at 2:30 PM and was discovered in the Sauna at 6:00 PM. The coroner listed the cause of death as cardiovascular disease. The children are claiming the sauna contributed to the death of their mother.
The issue that makes this a “possible” lawsuit is the fitness facility, Silver Sneakers Fitness Program, allegedly advertised itself as a specialty fitness program for adults over the age of 50 The lawsuit claims the health club marketed itself as having a high level of supervision to patrons with medical needs. However a review of the fitness center’s website does not advertise any additional services for older members than any other health club.
The next failure or issue on the part of the health club was the sauna’s thermometer was broken. The temperature was being monitored by a meat thermometer. By the time the police arrived the day of the fatality, the temperature could not be determined because the heat had been turned off. (Is this tampering with evidence or eliminating a risk for rescue personnel? See Canoe rental owner guilty of obstruction in attempt hide facts about drowning – Fear makes you do stupid things.)
Most health clubs have members sign a release. Most members assume a large amount of risk of the activities of a health club. Any person, let alone a 70 year old woman should be aware of medical issues of saunas.
Also battling the plaintiffs is the damages. Damages for wrongful death are based on the lost income over the life of the deceased along with the value of the lost life span of the deceased. A retired 70 year old women has little or no income and if she does have cardiovascular disease a limited lifespan.
A 49 year old Austrian attorney died after being bitten by a shark in the Bahamas with Jim Abernethy’s Scuba Adventures (JASA). The deceased was on a shark feeding trip where the sharks are baited using chum and the participants are not in cages. The shark apparently missed the food, bit the leg of the deceased and released him. However he bled out before he could be transported to help. See When Adventure Tourism Kills, Tourist’s death sparks shark-diving debate and Sharing the Truth About the Shark “Attack” in the Bahamas.
Shark watching is big business. It has grown substantially over the past several years. Florida has numerous shark feeding businesses; however Florida law does not allow chumming. The (JASA) had moved from Florida to the Bahamas allegedly to avoid the law.
Ignoring the issues of training sharks to associate food with boats and humans the articles have tackled numerous legal issues, some correctly, some incorrectly.
There has been an extensive debate over the civil legal issues in this case. However the accident occurred in the Bahamas with a non-US citizen so US law does not apply. Bahamian or the law of the release (if one was used) will probably control any litigation. Admiralty law may be the law applied to the case which although more generic by country is still not US law. For more information on jurisdiction and venue See: Pennsylvania court case highlights importance of where a business is located, Jurisdiction can affect the potential outcome of a case and Choice of Law and Venue — What Law Applies and Where? (Subscription Service)
Another raging debate is the fact that cage-less shark feeding is relatively a less risk sport. A group called Shark Savers, is defending the acts by saying that shark diving is safer than many other sports. However the sports they are comparing themselves too are unguided sports. There is a higher level of care or safety expected and received from a guided trip then from an unguided trip. That is why you hire a guide, to provide you with the knowledge, skills or safety from the risks that you do not have.
Shark Savers also states that “biking, swimming and boating” have significantly more injuries a year than shark feeding. This is probably correct. However the number of hours that people spend feeding sharks a year versus biking, swimming or boating does not make a fair comparison. If shark feeding had as many people spending as many hours feeding sharks as people riding bikes then the number of injuries would be significantly more. The website is comparing apples to oranges and skewing numbers to make the sport look safe.
There are some real issues however that can be educational. The JASA website is full of statements that would be difficult to support during any accident or could lead to liability in this case. The JASA statements include:
Three prominent statements telling possible guests that they will be safe. And yet someone died. Either the website is wrong, guilty of over promoting itself or this was a rare accident, which statistics show is not true.
On top of that is the fact JASA is a Florida based business. The website is quite clear that they are based in Florida and have a Bahamas operation. If you serve the business in Florida then Florida law may apply, absent a specific jurisdiction and venue clause in a release. Even if there is a release signed by any victim a complaint alleging negligence per se, because of the violation of the regulations may be successful in brining the defendant under Florida law.