Climbing Business Journal article looked at the legal issues of climbing gyms tracking accidents. What you need to know is the legal nightmare comes when you track incidents/accidents and do nothing.
The article is titled: Should Gyms Be Reporting Accidents? It attempts to look at the issue of tracking incidents and accidents at a climbing facility. However several important points are ignored or missed in the article. The article looks at legal issues the way a lot of attorneys do. Do it this way or that way. You need to solve problems, you need to understand the problem (put on a harness and climb a wall or belay someone), and you need to quit writing crap down.
Nothing in the article is wrong, nothing in the article solves the problem.
The article looks at the issues of tracking and not tracking however it ignored the real legal costs and any solutions.
Any time you “track” or maintain a list of incidents or accidents that information can be used against you. The article covers this issue and looks at the risks but does not explain the risks. The hardest thing for a plaintiff’s attorney to prove is what the incident that injured his or her client foreseeable? That is proved by an expert witness or if the defendant has a list of similar accidents by the defendant themselves.
Foreseeable means did or should have the defendant known that type of incident or accident could occur. A stack of incident forms that show similar incidents proves it. Not solving the problem indicated by the form shows you are an uncaring money hungry business.
Keeping a list of your prior accidents or incidents can assist the plaintiff in proving you were negligent.
The second issue is one you “track” or keep a record, you can’t get rid of the record. Once made it around forever. Consequently you may have to hand over years of records showing how you have allowed screw ups or even caused them.
That list can also then be fertile ground for the plaintiff’s bar to prove other claims against other gyms or to find new plaintiffs. Unless you can get the court to allow you to scrub the contact information of your guest that was part of the accident, you are giving the plaintiff’s bar the name of another possible client.
The reason for collecting the information is to prevent further similar accidents. Most organizations have stacks of reports and very little to show for it. Consequently you have given the plaintiff’s bar even more legal ammunition to prove you are an uncaring defendant. You have one or dozens of incident reports which you did nothing about and you look even worse.
The plaintiff’s may use the fact against you that you do not collect the information; they can try but it probably less damaging that a stack of incidents. A better result is below.
Once you develop an incident or accident collection system, you develop the idea that unless you have a stack of paper, you don’t have a problem. You develop the attitude that until the paperwork is done nothing to worry about. That can’t be farther from the truth.
You want to keep your guests safe, open your eyes and ears and pay attention. The experience and training you receive should be used to prevent injuries and incidents, not create a great form.
As the owner or manager of a gym, a raft company, a summer camp you really need a form to solve a problem. Get out of the office and to where the problem occurred, open your eyes, talk to you staff and make changes right then!
Do you collect and set yourself up for losing litigation or do you not collect and continue to allow people to get hurt (which is how several people will review this article.) You do neither.
If you have a problem, deal with it immediately. Collect the information you insurance company needs. Collect witness statements. You don’t really need to do anything more. What you need to do is solve the problem.
Don’t tell me that the only way to solve a problem is to fil out a piece of paper.
What solves problems is your and your staff getting together immediately after the incident or accident and determining what happened and what you can do to prevent it Solve the problem don’t write about it.
Why don’t you track incidents and accidents? Because we solve them rather than tack them!
SOLVE THE PROBLEM, DON’T WRITE ABOUT IT.
It is the writer’s job to write about problems, don’t hire one and don’t try and become one.
You don’t need a collection of reports to find problems. You need to open your eyes and ears and find problems and solve them. You wait for a report to be completed and you are sitting on a keg of dynamite.
1. Don’t’ wait to read a report to recognize you may have a problem. Get in front of problems. Listen to guests, staff and react.
2. If you have a problem solve it, correct it, fix it. It requires action, not paper to see issues and solve problems.
3. Don’t create a system create a solution.
What do you think? Leave a comment.
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By Recreation Law Recemail@example.comJames H. Moss
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