Insurance company release fails, even in the state where the company is located

Posted: April 4, 2012 | Author: Recreation Law | Filed under: Insurance, Release (pre-injury contract not to sue) | Tags: healthinsurance, Insurance, Insurance policy, Law, Montana, New York, Sports Underwriters, Waiver | Leave a comment

Sport Underwriters.com release has some good points, but overall it has major flaws.

I received this release, which was provided with a quote for insurance. The quote was great. The quote required the insured to have a Waiver and Release System:

Waiver & Release System:

The insured must maintain a system to regularly secure signed Waiver and Release forms from participants. For minor participants, these waiver/release forms should be signed by a parent or guardian. Unintentional error on your part in securing Waiver and Release forms will not void your coverage in the event of a claim by a participant; however, your failure to maintain an adequate system to regularly secure Waiver and Release forms will void your coverage in the event of a claim. All waivers & medical release forms must be approved by underwriters; if you do not have one, we will provide for you.

Overall, that is a good thing. It is also not so different from what most insurance companies want to achieve. However, very few make it such a mandatory issue.

However, I am curious if their system allows for states to not have a system if they are prohibited by law or where releases have no legal value. (See: States that do not Support the Use of a Release.) Montana not only does not allow the use of a release, if an outfitter is found using one, their state license will be yanked, and they will be prohibited from engaging in any business.

Let’s look at the release itself:

This release came from a Sport Underwriters.com. The release also says it is a division of Sport and Special Event Insurance Agency USA which can be found here. That agency is located in New York, which does not allow the use of a release for commercial activities. (See New York Law Restricting the Use of Releases)

The release in its first paragraph states it covers “traveling to and from activity sites in which I am about to engage.”Some states consider transportation to be defined as a “public policy” which is not covered by a release. Some states allow a release to cover transportation if it is incidental to the activity; however, this release does not go deep enough into the issue, in my opinion, to make it effective to stop a suit over a car or bus accident.

The release also states in bold letters that the signor “…will wear approved protective gear as decreed by the governing body of the sport…” Very few outdoor recreation programs have a governing body that decrees safety gear. Some state or federal regulations may require some gear such as PFDs on whitewater for commercial operators, but very little in the rest of the industry.

The release, midway down the page, has a page for the signor to fill in the name of the company or person the release protecting. This is just plain confusing. What if that is skipped, is the release invalid? What if they spell the name wrong or put the wrong name down?

Then the release starts using the term releasees. Releasees is the term applied to the name in the blank. The language is quite broad, but the people being released are, by nature of the way the release is written, very narrowly defined. I generally, in any document being used with the general consumer, avoid using a legal term. It just becomes confusing for the consumer to understand, if they read the document and can make judges and juries mad. Use the name of the company so that everyone knows no matter how confusing, at least who is being protected.

The release also says you are indemnifying the releasee. I’ve not read a single decision that allows indemnification to work in a release. There is a major difference between indemnifying against losses and stopping them to begin with, unless the indemnification language is written very specifically for a specific reason.

The release has two areas for signatures. One area is for adults to sign, and one area is for parents to sign. Consequently, either you are going to have a parent sign twice or signature line that is blank. There is no place for the minor to sign the agreement.

The parental signage line is preceded by a clause.

FOR PARTICIPANTS OF MINORITY AGE: This is to certify that I, as a Parent, Guardian, Temporary Guardian with legal responsibility for this participant, do consent and agree not only to his/her release of all Releasees, but also to release and indemnify the Releasees from any and all liability incident o his/her involvement in these programs for myself, my heirs, assigns and next of kin.

First, the paragraph is directed to the participants in the first line then refers to the parent guardian. I’ve never heard of a Temporary Guardian. My concern with this is, volunteer youth leaders (church groups, Scout groups, etc.) probably believe they are temporary guardians and sign the form. The outfitter will probably accept the form, not knowing that the signature of the adult has no legal value.

Then the telltale clause that makes me think the release was not written by an attorney: “…agree not only to his/her release of all Releasees, but also to release and indemnify the Releasees…” This language says you are releasing the outfitter and releasing and indemnifying the outfitter. In effect, whoever wrote this stuttered.

Then hint two: “…for myself, my heirs, assigns and next of kin.” The person signing is signing away their right to sue, their heirs, which may include their child’s right to sue, and the adults next of kin. If the child is a minor, they have not signed away the child’s right to sue or the right to sue of the child’s heirs or next of kin.

None of the language above conforms to the required language in Colorado or Florida or the language that other statutes and court cases suggest. As far as a release against the claims of a minor this release fails miserably.

Finally, there is no jurisdiction and venue clause. See Four releases signed and all of them thrown out because they lacked one simple sentence!

My Legal Stutter

An attorney has to write your release. Your release must meet your state laws. Your release must meet the requirements of your program.

Free releases cost you a fortune. The amount of time you will spend defending a release given to you by an insurance company or created by someone who does not understand the legal ramifications is not worth it. No trial will cost you less than ten days, and if you are making less than $1500 in profit in ten days, you need to get another job. J

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Releases are legal documents and need to be written by an attorney that understands the law and the risks of your program/business/activity and your guests/members/clientele.

Posted: February 28, 2011 | Author: Recreation Law | Filed under: Minors, Youth, Children, Release (pre-injury contract not to sue) | Tags: Child, Church Group, Colorado, Colorado Supreme Court, Information, Insurance, Law, Minor, Parental Responsibility, Parental Rights, Plaintiff, Supreme Court, United States, Youth Group | Leave a comment

Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832

The case is a little confusing to read because there was another case that was appealed by the same parties whom this case refers to. Additionally, the act of the trial court in reducing the damages is confusing. However, this case is a very clear example of how a badly written release is going to cost the church and its insurance company millions.

A church group had taken kids to a camp for a “Winterama 2005.” The church had rented the camp for the weekend. The plaintiff was 17 and not a member of the church. Her parents had paid a reduced fee for her to attend the activity. As part of that registration her mother signed a “Registration and information” form. One of the activities was pulling them behind an ATV on an inner tube on a frozen lake.

There was a large boulder embedded in the lake. On the second loop, the plaintiff’s inner tube hit the boulder breaking her back.

The plaintiff’s mother had signed the “Registration and Information” form. On the form was the following sentence.

I will not hold Grace Community Church or its participants responsible for any liability, which may result from participation.

The case went to trial, and the jury returned a $4M verdict in favor of the plaintiff. The defendant and plaintiff appealed after the judge reduced the damages to the limits of the insurance policy of the church, $2M plus interest.

The appellate court first looked at Colorado case law on releases and the legislative history of § 13-22-107(3), C.R.S. 2010. That statute, C.R.S. § 13-22-107(3), was enacted to allow a parent to sign away a minor’s right to sue. The statute, and the decision in Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981), has a requirement that the parental decision must be “informed” and with the intent to release the [defendant] from liability. Jones v. Dressel was the first Supreme Court review of releases in the state of Colorado as they applied to recreational activities.

The court looked at the language in the “Registration and Information” form to see if it informed the parents of the activities and risks their child would be undertaking. The court looked at the language and found:

There is no information in Grace’s one-page registration form describing the event activities, nothing describing the associated risks. Stating that the children would participate in “Winterama 2005 and all activities associated with it” does not indicate what the activities would involve and certainly does not suggest they would include ATV-towed inner-tube excursions around a frozen lake.

The court also looked at prior decisions concerning releases and found that “in every Colorado Supreme Court case upholding an exculpatory clause. The clause contained some reference to waiving personal injury claims based on the activity being engaged in.”

The court concluded that:

Grace’s [the defendant’s] form made no reference to the relevant activity or to waiving personal injury claims. The operative sentence (the third one in a paragraph) states only that plaintiff will not hold Grace “responsible for any liability which may result from participation.” Surrounding sentences address other issues: the first gives permission to attend; the second consents to medical treatment; and the fourth agrees to pick up disobedient children.
… nowhere does the form provide parents with information allowing them to assess the degree of risk and the extent of possible injuries from any activity. The form is legally insufficient to release plaintiff’s personal injury claims.

The court then looked at the second major issue that has been surfacing in many outdoor recreation cases of late. The plaintiff sued claiming a violation of the duties owed by the landowner, a premises liability claim. That means that the landowner owed a duty to the plaintiff to warn or eliminate dangers, which the landowner failed to do.

The defendant argued that it was not the landowner; it had just leased the land for the weekend. However, the court found this argument lacking. The premise’s liability statute § 13-21-115(1), C.R.S. 2010, defines landowner to include someone leasing the property.

This places two very important burdens on anyone leasing land or using land.

They must know and identify the risks of the land before bringing their clients/guests/members on the land.
The release must include premise liability language.

The second one is relatively easy to do; however, the effectiveness is going to be difficult. The first places a tremendous burden on anyone going to a camp, park or other place they do not own for the day, weekend or week.

Your insurance policy must provide coverage for this type of claim.
You need to inspect the land in advance, do a due diligence to make sure you know of any risks or dangers on the land.
You must inform your guests/members/clients of those risks.

The final issue that might be of some importance to readers is the court reviewed the legal concept of charitable immunity. At one time, charities could not be sued because they “did good” for mankind. That has evolved over time so that in most states charitable immunity no longer exists. At present, and with this court decision, the assets of the charity held may not be levied by a judgment. What that means is after someone receives a judgment against a charity, the plaintiff with the judgment then attempts to collect against the assets of the charity. Some of the assets may not be recovered by the judgment creditor because they are part of the charitable trust.

What does that mean? If you are a charity, buy insurance.

Of note in this case is the plaintiffs are the injured girl and her insurance company: The opinion states “Plaintiff and her insurer, intervenor American Medical Security Life Insurance Company (insurer).” Although set forth in the decision, her insurance company is probably suing under its right in the subrogation clause. A subrogation clause in an insurance policy says your insurance policy has the right to sue under your name or its own name against anyone who caused your damages that the insurance company reimbursed.

So?

As I have said numerous times, your release must be written by an attorney that understands two things.

Release law
The activities you are going to engage in.
The risks those activities present to your guests/members/clients.
Any statutes that affect your activity and/or your guests/members/clients.

Any release should include a good review of the risks of the activities and a description of the activities so adults and parents can read and understand those risks. Any minor who can read and understand the risks should also sign the release as proof the child assumed the risk. Assumption of the risk works to win cases against minors when the release is thrown out or in those cases where a release cannot be used against a minor.

Find a good attorney that knows and understands your activities, those risks and the laws needed to write a release to protect you.

What do you think? Leave a comment.

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States that do not Support the Use of a Release

Posted: December 16, 2010 | Author: Recreation Law | Filed under: Arizona, Hawaii, Louisiana, Montana, Release (pre-injury contract not to sue), West Virginia | Tags: Duty of care, Insurance, Law, Liability insurance, Louisiana, Montana, Release, Virginia | 9 Comments

Assumption of the risk is your best defense in these states

These states do not allow a recreational business or program to use a release to stop litigation.

State				Citation			Issues
Releases are Void
Louisiana		C.C. Art. 2004 (2005)			Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
Montana		MCA § 27-1-702			All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.
Virginia		Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890)
Use of a Release is Restricted
Arizona		Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53
New Mexico		Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48 P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25
West Virginia		Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649; 1994 W. Va. LEXIS 161
Use of Releases is Probably Void
Connecticut			Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006 Conn. LEXIS 330
Wisconsin			Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2
Vermont			Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127
Specific uses of Releases are Void
Alaska	Sec. 05.45.120(a). Use of liability releases					A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced.
Hawaii	King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004)					Found that Hawaii statute § 663-1.54. Recreational activity liability prevented the use of a release
New York	General Obligation Law § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable					Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

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You’ve got to be kidding: Chaperone liable for the death of girl on a trip

Posted: October 30, 2008 | Author: Recreation Law | Filed under: Uncategorized | Tags: Chaperone, Hawaii, Insurance, parent, Student | 4 Comments

Every school takes trips and every school trip needs parents. If nothing else it is cruel and unusual punishment to require teachers to spend 24 hours a day with some kids. Most of the time the volunteer parents are called chaperones. These chaperones are volunteering their time to keep track of the students, to keep alcohol away from the students and if trip has students of both sexes around, away from each other.

An arbitrator in a case has found a chaperone liable for the death of a student on a cheerleading trip in the amount of $700,000. See $700,000 verdict gives chaperones pause

The defendant in this case traveled with another chaperone and two cheerleaders to Hawaii. Within hours of arriving the deceased was seen drinking. The deceased was found the next day on hotel grounds. The deceased was 18.

What can one adult do to tell another adult not to do? What was the chaperone supposed to do, call the police? You can tell an adult to do or not do something, but that is about it.

Not much else is said about the deceased or how she died. There is nothing in the article stating the exact legal reasoning or claim the plaintiff argued that lead to the award. Nor are any discussions about defenses such volunteer immunity or a release.

What is going to occur is less people are going to want to volunteer to be chaperones.

There are a few things you can do to protect yourself in these situations.

Make sure the school or the school association has liability insurance to protect you. Make sure you have a lot of homeowner’s insurance; normally your homeowner’s insurance is going to be the primary insurance company, or the one out front. Try and get an agreement with the parents stating what you can and cannot do and what you are willing to try. Have the parent’s sign a release. Require parents to provide you with a phone number where they can be reached for the entire trip.

Insist on sufficient chaperones for the number and age of the students. Very young students and teenagers have the same propensity to “wonder away” and get in trouble.

Most importantly don’t put up with anything. Dependent upon the age of the student and what the parent says, deliver the student to the airport, put them on a plane and send them home if they are not obeying the rules. If the parent requires a chaperone to accompany the student home, the parent must agree in advance to pay for the cost of the student and chaperone coming home early.

This article raises a lot of legal questions. Why was the chaperone held liable for the actions of another adult? What duty was breached by the chaperone? We may never know, but school dances just took on a whole new set of worries. Spiking the punch bowl went from a prank to a negligent act.

‘TIS THE SEASON FOR INJURIES…. possibly Leading to the season of lawsuits!

Posted: April 29, 2008 | Author: Recreation Law | Filed under: Skydiving, Paragliding, Hang gliding | Tags: Defendant, Insurance, Lawsuit, Parachuting, Plaintiff | Leave a comment

Several news reports have described lawsuits between skydivers who collide. In one case, one skydiver had logged 1800 jumps when he was hit in midair and injured by another skydiver. The injuries ended his skydiving and work career. A judge ruled the skydiver (and friend) who hit the Plaintiff (the injured skydiver) was negligent and awarded the Plaintiff $748,000. See Skydiver Wins Lawsuit Against Teammate. Yet skydivers hit each other every once in a while. See Skydivers injured in midair collision and YouTube has several videos of skydivers colliding.

The accident occurred when an eight-man team including the Plaintiff and Defendant, ended a formation and broke apart to open their chutes. The Plaintiff and Defendant where both members of the team and had been practicing these maneuvers. The Defendant’s elbow hit the plaintiff in the head, knocking the Plaintiff unconscious and tangling the chutes. The Defendant was able to free himself from the tangled chutes and landed safely. The Plaintiff was not and fell suffering broken bones and brain injuries.

The lawsuit seems to be full of folly. (A politically correct term in this case.) Immediately what comes to mind is that someone with 1800 jumps knows, understands and assumes the risk of an injury. The judge did not see it this way. For this discussion, however, a different point needs to be discussed. Does your release protect your customers from this type of lawsuit?

Your customers can be involved in lawsuits in three ways:

As the Plaintiff – the person initiating the lawsuit.
As a witness to the incident which caused the lawsuit.
Rarely do we think of our customers as a Defendant in the lawsuit. However as rare as we may think it is, it is more common then you would imagine. (Co-participant liability)

Numerous articles have discussed the first case, i.e. as a Plaintiff, previously in this newsletter and it will continue to be our focus, however, the 2^nd and 3^rd ways your clients can be sued are also important. That your clients may be brought into a lawsuit as either a witness or a defendant is also quite important to you and can have a tremendous impact on your business. Some examples of how your clients can be involved as witnesses or defendants follow.

Having your customers called as witnesses can create significant public relations problems: You have six customers in a boat. One is injured and sues another customer. You have four other customers who are subpoenaed as witnesses. I can foretell that you now have six angry former customers. There is not much you can do which will appease everyone involved, except to end the lawsuit quickly; assuring the other witnesses they are not going to be brought into the suit as parties. (“Parties” is the term that defines Plaintiffs and Defendants).

In the 3^rd scenario, your customer could be sued in part because you can’t and the injured person is looking for money: The future plaintiff walks into an attorney’s office and describes his injuries and the accident to an attorney. The attorney, after discovering a release, (and realizing he cannot sue the outfitter) decides to sue the person who caused the injury, your customer. Your customer fell off the raft, knocking the injured person into the water; or started the avalanche while backcountry skiing; or the youth who while playing falls on a tent injuring the occupants inside.

For whatever reason, your customer is now in a precarious situation. They may or may not be liable for the injuries. In the latter instance, they are upset over lost time and money. If they are liable for the injuries, they may be confused as to why someone would sue them for an accident while recreating. Either way, they may be mad at you for not helping them out of a bad situation.

Worse, the defendant/customer may not have insurance to cover the cost of the defense or any judgement. Normally homeowner’s insurance will cover this type of claim, however not all homeowner’s policies may cover this and not everyone has homeowner’s (or condor or renter’s) insurance.

Other than moral support, you cannot provide much help – except from your own pocket. Your insurance policy is only available if you or your employees are the named defendants. No matter what you may want to do, you are paying your own bills for attending the courtroom drama, (which is nothing like TV, in real life, the main problem is always keeping the judge and jury awake!).

However, your insurance company should be paying your attorney to be their. There are probably going to be several issues that could lead to problems if your attorney is not on top of the case.

Bad press is also going to accompany any lawsuit between your clients. The press will jump on this and wonder why you are not involved. The defendant client will bring in the press to ask the question of why you have not been named as a defendant as well. Either way, from the sideline you appear uncaring or apathetic while your clients beat each other up in court.

But this can be prevented. When your release is being written, make sure the “people” covered by the release includes everyone. Not just the employees, but Directors, Officers and Agents of the corporation, employees, managers and owners of the business, and “OTHER PARTICIPANTS.” This is a very simple solution to what can be a disastrous affair.

EXAMPLE

You are running a Mountaineering course and one climber slips, fails to self-arrest and slams into another climber. Besides sixteen puncture wounds from the crampon points, the injured participant has a broken ankle and no insurance. There is a question as to who failed to keep the tension between the falling client and the guide who was first on the rope. Did the guide slow down, did the student speed up or did they both fail to be observant.

You and the client who fell are sued.

In the normal scenarios the insurance company lawyer files a motion. Based on the release, the company is dismissed leaving a very angry student to stand alone for the damages.

In scenario #2, you are not dismissed from the suit. Your defense is to try to blame the client who fell. You now have a very mad student and a bad reputation in the industry.

Scenario #3: The falling client with no money forms an alliance with the injured client to testify against you and leave you holding an empty money bag.

Scenario #4: Your release defends both you and the falling student thus protecting that student from liability. You have a good witness on your side rather than one running to offer their cooperation to the opposition and between the release, assumption of risk, and the guide and client as witnesses you have a good defense.

The simple inclusion of language protecting everyone in the lawsuit can keep your and your clients coming back for more accidents in the wilderness.

Here, the release covering everyone shows the witnesses they are not going to be drug into the suit. Also, the release helps your clients understand the suit should end quickly. However your clients feel, whether the injured party needs money or is wrong, NO ONE wants to be involved in litigation.

Travel Insurance Issues Outlined

Posted: March 18, 2008 | Author: Recreation Law | Filed under: Insurance | Tags: Health insurance, Insurance, Insurance policy, Travel, Travel insurance | Leave a comment

There is a great article on understanding travel insurance at Understanding Travel Insurance For Sports And Hazardous Activities. Most people don’t use it, but when you are spending several thousand dollars for an adventure vacation it can be valuable. As an example, if were planning a trip to the North side of Everest this spring, you just had your trip cancelled by the Chinese as they attempt to put the Olympic torch on the summit. Trip insurance might help recover your costs.

Travel insurance is divided into two different types of travel policies, although both are referred to as travel insurance.

The first is a policy that covers your cost of the travel part of the trip. Your flight, your hotel costs, those things that are about a trip. Some of these policies cover lost luggage, the cost of extra charges on a cancelled flight, those pure travel related issues. This type of policy would help you recover your costs if you had been scheduled to climb Mt Everest from the North this spring. Most of these policies would cover your costs in your flight, hotel and some incidental costs for the cancelled trip.

The other type of policy includes health or medical insurance for injuries that may occur while traveling. These policies may or may not include covering a rescue or evacuation. It is this second type of policy this article addresses. They are great gap fillers if your health insurance policy is geographically limited or limited to the extent of coverage or activities covered.

Some policies can be purchased that combine travel coverage and the medical coverage under one policy. Both policies usually cover the extra cost of getting home earlier than planned on a flight due to an illness or an emergency.

The valuable part of the article discusses the difference between an accident on an excursion or activity that is an adventure which would be covered and an adventure activity which would not be covered. One is incidental to the main trip which most insurance policies cover and the other is an adventure trip that is not covered by most policies. That is a trip where you are doing a five day safari riding elephants would not cover falling off an elephant. However a trip to Africa where one afternoon you ride an elephant and fall off would be covered. Read the fine print before you buy and buy the policy that covers your trip and trip needs.

Serious Disconnect: Why people sue.

Posted: March 8, 2008 | Author: Recreation Law | Filed under: Uncategorized | Tags: Chronicle of Higher Education, Greenfield Community College, Insurance, Lawsuit, Lawsuits, Litigation, United States district court, why people sue | Leave a comment

One of the common themes you see running through these posts is the “disconnect” between the plaintiff and defendants in a lawsuit. This disconnect is between what the plaintiff is asking for and what the defendant believes the plaintiff wants. The defendant always believes the plaintiff wants money. The only thing a court can provide is money, no matter what the plaintiff may want. When you read the plaintiff’s statements however plaintiffs rarely are asking for money. Plaintiff’s want answers, want a response, and want to know why.

Defendants are prevented by insurance companies and attorneys from dealing with possible plaintiffs because insurance companies and attorneys know their client will make the lawsuit worse. (For proof read the back of your automobile insurance card.) This is where the disconnect starts. The plaintiff has a question and the defendant is not allowed to answer the question.

An article in The Chronicle of Higher Education titled Family Uses Web Site to Publicize Their Son’s Injury at Camp Run by Community College is a perfect example of these issues.

The facts of the original case have been broadcast in the media and on the web but need to be reviewed here. Twelve year old Adam E. Dzialo had gone to a summer camp run by Greenfield Community College. During a whitewater activity Adam’s foot was caught and he was submerged for several minutes suffering permanent brain damage. Adam is now minimal functional, paralyzed and unable to hear.

The college had just undergone an Association of Experiential Education accreditation review where the review report alleged stated the whitewater program needed more instructors.

Accrediting Program Increases Liability Exposure

This accreditation report created the issue in everyone’s mind that has continued to plague the college. If the “group” you paid to come in and review you said to add more instructors, why did you not add more instructors? This also highlights the risk of asking a group to come in and review you. If you are not going to heed the review, don’t ask for the review. Someone else may look at the review.

Plaintiff’s filed suit

Adam Dzialos parents filed suit against the college. However the college was protected by government immunity and that lawsuit was dismissed. The parents then sued for violation of Adam’s civil rights in Federal District Court. This is a way to get around the governmental immunity defense in most states, but the damages are much more limited in this type of lawsuit.

The Dzialos have now set up a website to publicize their son’s progress and their issues with the college.

Plaintiff’s comments about the suit

Of greater interest though are comments the Dzialos have made about the website and the college. The following statements have been reported to the media.

“They [Dzialos] wanted to know why only one of the camp’s two counselors was on hand for a white-water river rescue exercise that day.”

“They wanted to know why they were not notified first by college officials but nearly two hours later by the hospital where their son was taken for treatment.”

“….the Dzialos say they have gotten little response from officials at the Massachusetts college.”

“….and to help educate the community about camp safety.”

“But they say what they really want is an apology from the institution.”

“”Instead of dealing with all these issues of honesty, they would rather protect their mortar and bricks,” says Adam’s father, Philip A. Dzialo.”

“”I’m hoping that there is enough community response that the college will say, Because these are our consumers, we should sit down with these people and hear what they have to say,” he says.”

The only statement indicating the Dzialos want any money out of the college is this last one and it is not a quote.

“So they decided to set up a Web site to provide information about their son’s rehabilitation progress and to pressure the college to assume some responsibility for his injuries.”

At the same time, this statement could also mean they want the college to acknowledge they are wrong, which does not necessarily mean they want money. The medical bills have forced the Dzialos to file bankruptcy.

Although by this point, money is probably necessary to ease the issues facing the family. But the amount of money might be significantly reduced if the college agrees to meet and accept responsibility for what occurred. There is a fear that apologizing will prove liability, but that is not the case. No lawsuits have ever shown an apology to be more than an apology. Several states protect apologies from being used as a statement of liability and if made during settlement negotiations the apology cannot be used in court.

The Disconnect

The college knows, because their attorney and insurance company have told them so, that the Dzialos want money. The Dzialos attorney wants money that is how he or she makes a living. But the Dzialos have never made a statement that they want money! They want answers

This is a serious disconnect. And it pervades our society. One side is convinced it knows what the other side wants, no matter how many times they are told differently. No matter what, the only thing one side can get is money and the only thing the other side is allowed to give is money. Yet neither wants to deal in that medium

What do you think? Leave a comment.

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Common Mistakes made by Outfitters and Insurance Companies

Posted: February 25, 2008 | Author: Recreation Law | Filed under: Insurance, Paddlesports, Rivers and Waterways | Tags: Canoe, Canoe Livery, Hurricane Floyd, Insurance, Outfitter | Leave a comment

BACKGROUND

An eastern canoe livery operation was open during high water after Hurricane Floyd. A canoe livery is a hybrid between an Outfitter and a Rental operation. Courts have determined that because the Livery is in charge of the pickup and return of the guest as well as only allowing the rental of the canoe on one river, the livery is not a rental program but more closely aligned to an outfitter. Although customers rent canoes, the livery controls every aspect of the customer’s experience, as such, the livery owner is held to the standard of an outfitter.

At a canoe livery, the customer pays for a canoe, paddles, life jacket and transportation. The customer is fitted with a life jacket, handed a paddle and escorted to his/her canoe. At the end of the specified trip the canoeist pulls over and is driven back to the rental operation by the livery operator. In some cases, a customer is transported up river and floats back to the livery operation. The canoe livery controls where the activity takes place, the time the participant is on the river, and transportation to and from the river. Most liveries operate on class 0 or 1 rivers, rivers with current but no rapids.

Liveries are mainly located in the eastern United States, usually within 2-3 hours of large cities. Church, school and youth groups are a large part of their business. Most are family run businesses that have been in operation for twenty years or more.

Instruction is generally not provided and rarely requested. The rivers are calm. Sitting in the canoe and holding on, will normally allow you to arrive at the takeout unscathed.

Ten years ago, life jackets where an “add on” – provided if the customer requested one. Normally, customers were handed a floating seat cushion. Since then, the standard in the industry has evolved to giving every customer a life jacket which buckles or straps on, even though most states by law do not require them in canoes.

FACTS OF THE CASE

Image via Wikipedia

1. Livery Statement: In this case, a recent storm had increased the river flow. The river was higher than normal but not closed. The customer called the livery the day before to see if the river was open. The customer was informed the river was high, but still open. The customer claims they were told the river was “safe.” Four customers arrived, rented two canoes for $54.00 and paid with a credit card. The livery transported the customers and the equipment upriver to float down to the livery office. The bus driver reiterated to the customers that the water was high.

The customers over-turned their canoes. They came back to the operation, cold, wet and mad. At the livery, the customers claimed they had lost a wallet containing $600.00 in cash, prescription glasses, and other items. They had minor scratches, but refused medical treatment.

Customer Complaint: Soon after the incident, the customers filed a complaint with a State Consumer Agency. In the complaint, they stated they had rented the canoes 2 days after Hurricane Floyd. While they were concerned the river might be too high, too dangerous or obstructed, they assumed the campground would have checked for these things and suspended their trips if the trip was too dangerous for their skill level. The customers informed the livery they were novices. They did not receive instructions or warnings from the livery.

According to the complaint: “In fact they [the livery] broadly proclaimed we could ‘float back’ in 4 hours. The river was so high that we were over our heads and the banks were under water. When we complained to the livery they admitted that no one had checked the river since the storm, yet they sent us out in these canoes…. They refused to refund our money for the rentals or compensate us for our losses…. They took a chance with our lives to make a lousy $54.00! … We could have easily been seriously injured or died as a result of their blatant negligence.”

Over a month later the customer sent a complaint letter to the livery. In the letter they claimed $840.00 in lost cash and one day of lost work because of a physician visit. The lost work was valued at $200.00. The customer also complained that “no advice or instructions were offered by your representative” concerning canoeing. They also claimed that no warning given about the high water conditions.

3. Documents: The livery’s brochure offers no information as to risk or whether a release must be signed. Another brochure advises that “If you are unable to swim – a life jacket will be available.” There is no risk or release information in the second brochure either. The only notice is about failure to return equipment.

The customers did sign a rental contract, which they relied upon in making their compliant. However, a rental contract is in fact and in law not a contract; it is a receipt. A receipt contains information about the renter and the return of the items rented, including life jackets. At the very bottom of this rental contract, there is a statement about returning equipment on time. There is also a line for the customer’s signature below the return policy.

4: Insurance Company: The customer’s complaint was forwarded to the livery’s insurance company. The insurance company wrote the complaining customer. [Starting the lawsuit!] The insurance company letter said in part:

“The insurance available to the Livery is liability insurance. Under this type of insurance payments are made on behalf of the insured for situations in which the insured would be at fault for damages. That is, if the matter were taken to court, they could be found responsible.”

“The duties owed you by the Livery are to: (1) Exercise reasonable care in the maintenance of the premises for your safety; (2) Warn you of any dangerous condition which are not open and obvious and of which the owner has knowledge; (3) Make a reasonable inspections of the premises and remedy any dangerous conditions the inspections reveals.”

The insurance company denied any claim.

5. Complaint: Approximately 2 months after the original rental, the customer filed a complaint in the Small Claims court requesting $1,408.00.

The Plaintiff in the Complaint stated as follows: “XXX Campground operates a canoe rental concession. On XX/XX/XX myself & three others rented a canoe for a pleasure trip. Defendant was asked in advance if the conditions were safe to allow canoeing. The stated condition was safe. All four of us were thrown from our canoes into the river as the result of surging waters well above normal state. I ____ lost of personal goods and work time. They were negligent in not checking conditions on river & allowing anyone to navigate the river.”

LIVERY MISTAKES

Image via Wikipedia

Basic Mistakes: No properly written release. No pre-trip safety talk. No pre-trip National Livery Safety System video. No information in their brochure about risk, loss of property or that a release had to be signed.

Less obvious with respect to defending a lawsuit, but much more critical in preventing a lawsuit: No thorough knowledge of their insurance policy and no understanding of how their insurance company would react; not dealing with the complaint immediately; not dealing with the complaint when a complaint was filed with the state; knowing the customer was lying; and, basing their response on the “customer lied” rather than focusing the bigger problem.

The customer in two documents states they were told the river was safe. This guarantees a lawsuit and a loss for the livery or any outfitter. No river is safe. Life is not safe. By stating that your river, trip or activity is safe you are making a promise you cannot meet. It might have been safe for the previous 1 million people who went down the river, but the next person who goes down and may be injured and will not have a safe trip. Your promise of “safe” makes their suit for negligence golden. The outfitter denies making those claims. However, something was said that induced the people to come to the river, even after they called to confirm the river was open during high water.

A complaint based on the concept that a livery should check river conditions is rare – and relatively new. Some livery owners inspect the river each day; however, the vast majorities do not. There are definitely situations when an inspection is warranted, i.e., when a customer or third party notifies you of a problem, or if your canoes quit coming down river. At the beginning of the season and possibly after high water, you might also require a check. However, checking river conditions each day is probably not necessary.

To alleviate the need to check daily, a statement regarding your policy should be included in the release, along with language about who owns the river and what is and is not within your control. Similarly, a statement that Mother Nature controls the river – not the livery owner – should also be included. You might want to place a similar statement in your brochure and on your website.

Another complaint is the “lack of instruction.” The customer claimed they were not given adequate instruction to navigate the river. No liveries provide instruction except in answering basic questions. However, this area is changing with the use of the National Livery Safety System video. The NLSS video provides several minutes of instruction that would have helped the customer in this case. Possibly guests should be prompted to ask questions or if they have any questions, maybe even a sign at the check in that asks the customer to ask questions.

Another statement that stands out is the one about the water being over the customer’s heads. Either the customer was under the belief the river was shallow or someone had implied this was so. No customer should ever enter a river with the belief they can stand up in the river. Two reasons exist for this: (1) river bottoms change. A river can be six inches deep one day and the next be 20 feet deep; (2) Foot entrapments. Foot entrapments are a major cause of death in canoeing and rafting river deaths. A person walking along the riverbed steps in a hole and the current keeps them from being able to remove their foot. As such, they can be quickly shoved under the water and drowned. Here again, the NLSS video speaks about foot entrapments.

Brochures: Every brochure should do three things to prevent litigation: (1) the brochure should state the livery is not responsible for any injury or death. (2) The brochure should state the livery is not responsible for lost property. (3) The brochure should state the customer will be required to sign a release before undertaking the trip. Failure to inform your guests of the risks and the potential losses they are going to be taking on is weak at best and leads to lawsuits.

Releases: In this day and age, a properly written release is a must for any livery, outfitter or risk operation.

INSURANCE COMPANY MISTAKES

English: Canoeing on the Shenandoah River.

Image via Wikipedia

This is the scariest part of the entire situation. The insurance company in an effort to save a nickel could have cost themselves millions. They took legalese and attempted to use it to stop a lawsuit. A common technique of insurance companies is to deny coverage and provide the upset customers with the information for them to sue.

Fatal Insurance Company Error 1: No one had mentioned a lawsuit until the insurance company brought it up: “That is, if the matter were taken to court, they could be found responsible.” Let’s translate this for the common man: “You can’t get any money from the livery or us unless you sue us.” Small claims court is easy. It is easier still to stay up late and watch TV, make a toll free call in the morning and find an attorney to take on the arrogant insurance company. That is what those late night ads are all about.

Fatal Insurance Company Error 2: “The duties owed you by Livery are to: (1) Exercise reasonable care in the maintenance of the premises for your safety; (2) Warn you of any dangerous condition which are not open and obvious and of which the owner has knowledge; (3) Make reasonable inspections of the premises and remedy any dangerous conditions the inspections reveal.” The insurance company denied any claim. Let’s interpret this as a reasonable man would.

Reasonable Care: It was blatantly obvious to the customer that “reasonable” would have been for the livery to canoe the river and check it out. “Reasonable” legally means what every other outfitter is doing. The customer, however, does not care what every other outfitter is doing. They only care about what the one they paid did as compared to what they believe or were led to believe would happen.

Open and Obvious: To a competent canoeist, a strainer is obvious. To novice canoer’s, strainers may not be obvious until they are caught in one.

Owner has knowledge: The customer believed the livery should have had knowledge of the river conditions.

Reasonable Inspection: It was blatantly obvious that the customer believed it was reasonable to canoe the river.

Premises. The insurance company defined this as the land area being insured, probably only as that land owned by the livery. The customer defined this as everything the customer was upon while paying the livery for the day, the land, the river and the bus.

The legal paragraph quoted above said this to the customer: It was reasonable for the livery to check out the river. Once they did they should have told us more about the river.

The insurance company gave the customer the reason to go to court on a silver platter. While this letter might not afford the customer solid legal grounds in a higher court, in small claims court, they could hold up the insurance company letter and make an augment that will likely win. Because it is small claims court, the insurance company has no liability and will not pay to defend. The insurance company ducked out, costing the livery some money but it could have cost them both thousands.

More importantly, the insurance company told the customer to sue! The insurance company letter stated the only way they customer could recover was if they sued, so the customer did. In fact, they were told to sue by the livery’s insurance company.

Isn’t this the opposite of everything you expect from your insurance company and what your insurance company stands for? Aren’t your insurance companies supposed to assist you in stopping lawsuits, in making sure you do not go to court? Yet the insurance company sent a letter that told the angry customer that they could sue and get money.

INTERESTING LEGAL ISSUES

The customer made a claim for negligence in the complaint. If the judge finds negligence the judge can award more than the damages requested, kick the case to another court, or ignore the negligence claim.

ANALYSIS

The livery dodged a bullet; the insurance company dodged a bullet. Wet, cold angry customers came into the operation after their trip and could have been dealt with then. However, they were sent on their way, still wet, cold and angry. Angry customers, who feel their lives have been put at risk don’t stop complaining and don’t let go of their angry easily. These customers spent six months dealing with the anger. Each time they received an unsatisfactory answer, they kept going till they got an answer.

They never got the answer they wanted, “We’re sorry, here is your money back.” They got a lot more money, but that is the only thing the court could give them. See It’s Not Money.

The livery also got angry. A customer was stupid enough to take valuables down a river and then demanded compensation when they lost then. That anger increased when each time a claim was made, the value of the items lost increased.

Two angry people are now fighting each other. One because they felt they were treated badly, their lives put at risk. The other because they felt someone was trying to cheat them.

SUMMARY

Image via Wikipedia

This case is a miracle. The customer, if they could prove they were told the trip was safe could sue for negligence, and probably win. This case could have been settled for $54.00 or less, instantly. It could have been settled easily at any stage along the way, until the insurance company became involved. Any settlement of less than $10,000 is probably a good deal.

The customer should never be told the river was safe.
The customer should have been told to leave their valuables in their car and their keys in the livery office. This should have been confirmed in writing in a release
It is better to have no money and somewhat satisfied customers rather than $54.00 and angry customers.
The conditions and acknowledgment of the river should have been in writing
The customers should have been informed in advance in the brochure or website that instruction is not provided; it is just a rental, not training.
The river should have been checked by the livery if not regularly, at least every time the river flow changes to look for problems, strainers and ascertain the river is still runable.
The letter sent by the insurance company was an invitation to sue the livery. The livery should have handled the problem because it is their customer. Insurance companies have no empathy and are better at starting lawsuits than they are at stopping them. The insurance company basically told the customers to sue.

Deal with your own problems because no one will deal with them as well as you will.

Videos

I don’t know of anyone making videos you can use to point out the risks and dangers of your sports. Stay in touch with Quietwater Films, who maybe is working on some.

Assumption of the Risk

Posted: February 11, 2008 | Author: Recreation Law | Filed under: Assumption of the Risk | Tags: Assumption of risk, Boy Scouts of America, education, Insurance, Law, Lawsuit, Risk Management, Summary judgment | Leave a comment

Assumption of the risk is defined as someone knowing and understanding the risks of the activity that injured them.

Every state has slightly different definitions of assumption of risk. In general, prior to the guest becoming injured, the guest must comprehend the risks of the activity. The comprehension must include not only the knowledge of the danger, but most states require the plaintiff know extent of the possible injury.

If this knowledge is confirmed in writing then assumption of the risk is called express assumption of the risk. If the knowledge is not written down, then assumption of the risk it is called implied assumption of the risk. In many states implied assumption of the risk has been merged with contributory negligence and goes to the percentage of fault of the plaintiff.

Assumption of the Risk in most states is no longer available as a pure defense to a claim. The legal defense of assumption of the risk has been merged into contributory negligence. With contributory negligence, the jury decides how much each person in the lawsuit was a fault. If the Plaintiff was 50% or more at fault (51% in some states) then the Plaintiff cannot recover from the Defendant. Assumption of the risk is one of the factors that contribute to a plaintiff being at fault in an accident.

However that is changing in many states as courts are tired of dealing with claims in sports and recreation where the injured party should not recover for their actions.

Assumption of the risk is a valuable a defense. It can be used to show a jury that the plaintiff was solely responsible for his or her injuries. Assumption of the risk is also the only defense available when a minor sues in many states.

However, the legal issues aside, 28 years of reviewing claims and lawsuits have shown that assumption of the risk great value besides use as a defense. Plaintiffs, who understand the risks, do not get injured. More importantly, outfitters and guides who take the time to get to know their guests, answer their questions and fully inform their guest of the risks are not sued.

There are several sub issues of these ideas that need to be explored. From the guests perspective the more the guest knows they least likely that they will be injured. A guest who really understands what is going to happen is better prepared. The guest understands the activity is not an amusement park, that there are millions of things that are out of anyone’s control. Those guests will enjoy the experience, be less afraid and will deal with any issues with better results.

Guest’s who understand the risks also are more likely to ask questions before leaping. Is that snake poisonous, is that ice solid, can I boulder over here? Answering these questions might prevent guest injuries. An outfitter who goes forward informing and educating a guest is usually also one who encourages questions. Most people if they feel comfortable will ask questions, especially, if the conversation between guest and guide is encouraged rather than strained.

Outfitters and Guides who make it part of the program to educate their guests understand that educated guests are the best guests. Not only do educated guests remain healthy, they have more fun. Nothing is worse then giving up your warm clothing to a shivering guest when they should have brought their own, but did not know to do so. That may seem like a far fetched statement, but in the whitewater rafting industry, every guide carries extra clothing because guests are rarely fully informed.

Another important issue that arises when guests are educated is they develop a closer relationship with the guides and the outfitter. As such, there is usually little anger or emotion accompanying an injury. Anger or some other emotion is the basis for the majority of lawsuits and if you can eliminate this emotion you can reduce your chances of being sued. Educated injured guests usually understand how they were injured, or understand that accidents happen that do not have someone to blame for the injury.

Finally, educated guests appreciate the risk. They understand what the outfitter and guide are doing to make the activity fun and a success as well as to keep the guests safe. They understand the energy it takes to keep a group organized and together. Educated guests are the ones you like to work for.

One major problem of assumption of the risk is quickly once we become enamored with an activity; the risks fade as a danger and become mundane. Those risks that a new guest may see as terrifying, we lightly skip over every day. Watch your guest the next time you casually stroll the to an ice climb as they contemplate, with an engaged if not terrifying look on their mind, the crampons, ice axes and the mixed terrain slope. Those risks that we now ignore are real to your guests.

This acceptance of risk can create dire consequences for the guide and outfitter. Most times we fail to identify the mundane to your guests and consequently, leave our guests in a precarious position. Yet it is the mundane risks that generally lead to the small activity ending injuries. Slightly injured guests either leave or end their activity or continue placing everyone at a heightened risk.

Watch a guest carefully negotiate the cliff edge as you walk around it or standing on a slightly sloping ice covered rock. The greatest risk to everyone within earshot is possibly the flying ice axe as the guest, feet firmly planted tries to remain upright.

Most of the time, we work heard at informing the guests of the hidden risks. Avalanches, rock fall, and hypothermia are always covered in great detail. We miss those things we have come to accept as the day to day. Like driving to and from the activity, we talk about the risks of the activity in the van, ignoring the fact we are traveling at 65 miles per hour in the deadliest contraption invented by man.

Employee or contractor guides also accept risks as mundane that are still dangerous to them. This mundane acceptance becomes a worker’s compensation injury if awareness is not kept at the forefront of both guest and guide’s awareness.

Does this mean you need a continuous monologue of warnings coming from everyone’s mouth? No, it does mean that you need to have a well thought out education program. Inform the guest of what they need to know to evaluate the activity when they are exploring the idea of going. What the guests need to know when preparing for the activity. What the guests need to know when they are engaging in the activity. More importantly, paying attention to the guests looking for those expressions or voice intonations that indicate more information is needed.

For more articles on Assumption of the Risk see:

This California decision looks at assumption of the risk as it applies to non-competitive long distance bicycle rides and also determines that assumption of the risk also overcomes a violation of a statute (negligence per se).

Assumption of the Risk to be a bar to a claim the defendant must not owe a duty to the plaintiff that means the plaintiff must be involved in recreation or a sport.

In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night.

Most references in case law to assumption of the risk are to this California decision. The basis for understanding Assumption of the Risk is this decision based on an injured finger during a pickup football game.

New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.

South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.

Keep your guests educated, healthy and happy and you will probably stay out of court.

It’s Not Money

Posted: February 10, 2008 | Author: Recreation Law | Filed under: Risk Management, Skiing / Snow Boarding | Tags: Dispute Resolution, Insurance, Lawsuit, Litigation Prevention, Plaintiff, Recreation, Solving Problems | Leave a comment

Most Plaintiffs in the outdoor recreation industry do not sue for money. However, the end result of all claims, litigation or disputes is money because the system can only provide money. Lawsuits don’t bring people back to life, lawsuits don’t answer questions, lawsuits only move money around. Dealing with a plaintiff with the idea that money is their goal, you will end up in court, or at least writing a check. What research that has been done, has shown that at least seventy percent of the time the customer suing you does not want money. This may vary for some types of Plaintiffs, but for your average “Joe,” (not an MD, JD, Corporation, Business, super high income or experienced plaintiff,) its not money that an angry customer wants.

Money is how we respond to people questions, people who hurt or people who are mad. A classic case of you offering apples and the customer is talking oranges. Specifically, trying solving a problem with a hammer when a kind word and a few minutes of listening might do.

Ten Reasons Why People Sue

Why: This questions is never answered
How: No one will Answer this question
Where: Why won’t they tell me where the accident happened
Answers: No one will answer my questions
Justice: I want justice its been promised to me since first grade
Community: I don’t want anyone else damaged by this company
Retribution: I want to put them out of business
Communication: I want them to talk to me
Acknowledgement: I want them to admit they were wrong
Revenge: closely aligned with the issue of justice
Closure: An element of many of the above, but a reality in the US today.

I was a small law practice for fifteen years and was open to any person who walked through the door. Never, in fifteen years did an individual walk through the door and ask me to sue someone for money. What the injured customer wanted fell into several categories, mostly (1) answers to their questions (2) revenge or (3) justice.

Little old ladies who had been taken by a contractor only wanted to make sure no one else was hurt by the contractor. A friend of mine who had been blown up in an explosion and totally disabled, wanted to wait until the last day to see if his old boss might call.

Attorneys and insurance companies have pounded into our heads that if we are involved in potential claim we are to shut up. If you read the back of our automobile insurance cards, it reiterates what we have been trained in the “litigation minded society” to remember. “Say nothing. Only talk to our insurance representatives or law enforcement authorities.” We live in America by this mantra.

Look at this article from the Columbus Dispatch about why a family was suing a camp.

Columbus Dispatch August 16, 2000.

Family sues summer camp over drowning Wednesday, August 16, 2000 Kate Schott, Dispatch Staff Reporter

Shawan Evans’ uncle said he hopes the lawsuit he filed against the South Side Settlement House will help answer how his 6-year-old nephew drowned in a pool at a summer camp.

The uncle said nothing about money. The lawsuit was not started obviously because of money but because of emotional issues.

The article goes on to state: “The Evanses and their attorney met last week with lawyers representing Triple S and posed 54 questions about the drowning, Mr. Evans said. ”

“It was a waste of our time,” he said. ” We just kept hearing ‘[we] don’t know.”

“We just want to know what happened that day. We can’t seem to get any answers.”

Fifty-four questions about what happened. How did my child die? Answering the questions might have diffused the lawsuit. However, the article goes on to say the defendants had a lawyer who was protecting them.

Protecting them…………….. Right into a lawsuit.

Answers

The lawyer for the family had this to say:

“The Evanses’ attorney, Lloyd Pierre-Louis, said the family is open to settling but still wants to know what happened. ” By instituting the action, we’re in a better position to obtain the answers we need,” he said. ”

The lawyer is all ready starting to cross the emotional and question issues with monetary answers. If we do not get answers, we will get money or money will force them to answer our questions. If we get money, that answers your questions.

“Evans said the money was not the point of the suit. ” There is no way to put a price on his life,” he said. Rather, the family wants closure, to know how Shawan could have gone unnoticed by the adults at the pool. ”

Here is a multi-million dollar lawsuit that might be defused with honest answers to the family’s questions. Of course, there is a fine line to walk between honestly answering questions and setting yourself up for a lawsuit. In addition, that needs to be done before the injured party retains an attorney. If you have stalled the participant into hiring an attorney, your better make your defense wall a lot bigger and taller.

The family was asking questions about how their child died. None of those questions seemed to be targeted at gaining information to use in a lawsuit. However, the Camp’s answers, unintentionally, were structured to make sure the lawsuit happens. Not getting any answer to their questions forced them to the next highest step, court. To get money, No. To get the answers to their questions: How did my child die?

Put yourself in place of the parent. You receive a phone call telling you to go to the hospital your child has been injured. You arrive and are informed your child is dead. How? This question is searing through your mind. How did my child die? Can you think of any emotion or need that would overcome that desire to learn how your child died? Yet as attorneys, we feel we have the right to keep that information from someone to protect our clients.

Knowledge

Closure is not a new word in the American language. However, it is a word that is very important for most Americans. Injured people need to know what happened. Survivors want to know how they survived and others died. One hundred years ago, people were hurt and they died and that was life. In the past hundred years we have learned the answers to millions of questions we could not previously answer. That leads Americans to believe that question should have an answer. Everything should have closure. That is not always the case and it takes time to explain that to people. You cannot expect them to have the understanding of your industry and consequently the acceptance of the answer that you provide. You have experience and industry education to help you understand the forces and factors that create the incidents that cause injuries and death. You also understand the unknowns that affect the business. All of these give you insight and perspective that provides you with answers.

How then, based on your experience and knowledge can you expect a novice to your business how an injury or accident occurred. That takes time. Unless you are willing to put in the time, they will not be willing to understand.

Justice

In kindergarten we started to learn about our rights. Our rights have been explained to us each year until graduation as the basic foundation of the United States and one of the pillars of our success. Since that time, we have rights to everything. The right to know. The right to justice. No one lives with injustice any more. If you customer feels that they have been unjustly treated, that education that they received for twelve years rears it ugly head, however perverted that knowledge has become, we want the justice we are do.

Most people have no clude what their rights are, you see them on the news every night screaming their rights have been violated, now knowing that really has happened to them.

That desire for justice, combined with lack of knowledge on the guest part and lack of understanding on the business part leads to litigation. The desire to receive justice, the desire to extract retribution, the desire to protect others from injustice are issues, almost values that are important to our society. Unless you as the business owner understand these issues, you again will be looking at a checkbook at the way to solve your problem.

Emotional Justice is worse for everyone to handle. For years, we have approached lawsuits as being a money issue based on greed. Yet, the people who walk into an attorney’s office are normally the product of poor customer service. Many times there may or may not be a legally recognizable claim. That is the job of the attorney. The attorney will take that anger and turn it into a desire for money over time. The emotions that linger or the desire to hurt the business always heightens that desire.

And justice is not just an American issue based on law. John Rawls in his A Theory of Justice states that for humans, justice is a fundamental part of our makeup. If the value or even intrinsic issue of justice exists, we cannot ignore it when a guest has been injured.

Duty to our Client

Do attorneys do this consciously, No. Or at least I hope not. We honestly feel we are protecting your client. Based on our training and the horror stories of law school we are afraid that our clients will make a fatal mistake that not only starts the suit, but also guarantees a win for the plaintiff. However, that is not the case. If suits were monetary, then the attorney’s fears would be real. Because they are emotional or based on the US theory of rights or justice, these suits are started for reasons that simple curtseys, answers, and honesty can eliminate.

7 Mistakes Made by People who are called Defendant

Hire and retain Uncaring Employees: Hire Well, Train Well, and Treat Well
Failing Know Your Customers and why they are buying from you.
Failing to Treat Your Customers the Way They Want to Be Treated:
Examining the problem from Your Perspective: Your customer sees the problem differently than you. The customer may not even understand the problem.
Placing a ridiculous value on principles and pride. Principles & Pride Goeth Before a Lawsuit
Never know Why you are being sued: Sticking your head in the sand, or passing the problem to a lawyer does not resolve the problem.
Forgetting What Your Mother Taught You: If you act like your mother taught you, you won’t be sued.

As the emotion drains with time, the attorney refuels the desire for the suit with another emotion – greed. Even if greed itself will not work, the attorney can show the financial impact the greed has on the business. If nothing else, a large monetary judgment can be turned into justice by equating the cost to the business as punishment or revenge

What happened to turn a customer from a client to a litigant?

At a ski resort there is one brief moment in time when a happy guest is converted to an injured guest. After realizing that they are injured, the majority of injured skiers do not start thinking about money. They wantg help. However, in the mind of the ski resort something did change. That person evolved from a happy guest to a potential litigant. The ski resort goes from bending over backward to get that guest into the resort and having fun, to fearful of the person. The resort will rush food and linens to your room and transport you from one place to another with a smile prior to your injury, yet the guest is now left standing outside the clinic with no way to get back to their room or car afterwards.

What did the guest do to change? What thought occurs, that works it way through the pain that says to the guest, you are now different. Or did that evolution only occur in the minds of the people running the resort?

Angry customers do not sue. Angry ex-clients do.

You can stop anger, revenge, or unhappy customers before they turn to a lawyer.

Solutions

Do not give them a reason to go find someone to beat you up.

Work with your clients to help them back to an even emotional level. This may not always be possible if they have lost a loved one; they have suffered life-changing injuries or their financial future. You can show them you should not be the target of their anger. You can help them direct their anger to other persons or at least deal with you on a reasonable basis. You will not always be able to do this in one meeting, it may take days or months, but persistence pays off.

When in doubt compare the cost of the angry customer, attorneys to defend, and your time to the benefit of turning an angry customer into a happy customer again.

Answer questions.

Worse case scenario, you go to court and admit you answered the client’s questions. Do not believe the attorney’s mantra that clients are dumb and going to give away the company by admitting liability. It will be difficult for to answer some questions with no liability because of the ingrained fear we have of talking to injured clients. Trust yourself.

Prepare your answers as you drive over to help. However, prepare answers, not evasion.

Evasion is so evident it does not work. It makes you look like you have something to hide. By evading answers you are sending the guest to someone who will find out the answer. Since kindergarten we have been taught our “rights.” Those rights in most people have evolved into everything possible. People believe they have the right to know. They have that right with governments they therefore feel it must extend to everything else.

At the same time, why not. If a member of your family were injured, you would want to know what happened.

Treat the people as you want or they believe they want to be treated.

How can we solve these issues? We can answer questions and treat people, as we want to be treated. It will scare the living daylights out of every one of us and send our attorneys screaming to their malpractice carriers, but we may avoid a costly battle over the word “why.”

During spring of 2000, a small ski resort had a number of snowstorms. During these storms, lift operators are faced with two decisions when small children load the lift. Clean the chair lift seat or assist young children into their chair. The obvious answer is to assist young people into the lift. The sport is skiing and it is done on snow.

On this particular day, the resort received approximately four inches of snow in a couple of hours. A mother and her 9-year-old son loaded a two-person chair. The lift operator assisted the boy into the chair and consequently did not clean the chair. The mother and son started brushing the snow off the chair seat. Shifting to do so, the son was moving around the chair. The mother told the son either to be careful or not to clean the snow but he continued to do so. The young boy slipped off the chair and fell approximately 15 feet.

The mother rode the chair to the top where a Ski Patroller met her, who took her down to the scene. Upon arrival, she snapped photographs of the scene and the chair. A ski patroller assisted the mother; other patrollers took son down to the clinic and in the process learned, she was an attorney.

I was notified of the lift accident and the fact the mother was an attorney. I met the ambulance at the Clinic and assisted the parties in getting into the clinic. Mother was quite terse and demanding. Normal emotions for a mother concerned about her son. However, if you couple that attitude with her vocation, it brings fear to a risk manager’s heart. No injuries could be found on the boy; however, he was not communicating and complained of pain so he was air lifted to Denver.

Mother was given a map, given telephone numbers to contact me and escorted to her car. She was contacted at the hospital that night to make sure she arrived. She and her son walked out of the hospital that night around midnight and the mother and son checked out the next day.

The son was sent a resort Teddy Bear and a personal card. The mother was also sent a card. Mother responded with a card and thanked the staff for their help.

The mother called fall of 2001 and stated she wanted to come back skiing but her son was afraid of the lifts. In order to assist in this, the resort volunteered to find the perfect instructor to assist the boy for two all days’ private lessons so that mother and son could enjoy skiing.

I met the family the night they arrived and talked to them for two hours about the resort and skiing. Mother is a tax attorney and concerned that son would no longer want to ski, but the son was a quite excited.

After two days of private lessons, the mother and son were skiing intermediate and some expert runs. They hired the ski instructor for a third day of private lessons. They family left after 5 days and are now excited about skiing. Since that first incident they have come back to the resort two more times. Each time they have hired the same private instructor for a day or more. This last time they visited the resort, the mother and son took me out to dinner.

Whether this was ever, a lawsuit is unknown. However, a disgruntled scared guest has been turned into a happy guest. By treating the guest as a guest and not a litigant, a customer with a possible propensity to recover damages was turned into a lifelong customer. In addition, by coming back to the resort, skiing, and riding lift, from which the boy fell; we substantially reduced the chance of a lawsuit. (People who come back to ski have a hard time suing. On the stand, they cannot answer the question, “If the resort is so dangerous, why did you go back and ski there?”)

Mom and Son are happy and will always come back to the resort.

Costs: two private all day lessons, one teddy bear, telephone calls, postage, etc. Less than $700.00.

Return: eleven nights lodging in a one or two-bedroom unit, Twenty-three days of lift tickets, and two all day private lesson, meals.

Possible damages: days in depositions, staff hours responding to discovery, may a win, maybe a loss. Either way, a customer we had spent money on to come to the resort was lost

Results: Happy guests and no lawsuit. I have three cards from the family on my shelf and a free meal.

In this case, I ignored our liability issues. I just concentrated on dealing with the guest, answering questions honestly or honestly saying, “I don’t know,” and getting back to the guest with answers when I learned them. Getting back to the customer and answering their questions establishes credibility.

Every time you say, “I don’t know,” write the question down and research to find the answer. If you can’t find an answer, explain why. Maybe there is no answer, but if you use that statement, there better not be an answer. Coming back and restating the question and answering the question will provide you with an immense amount of respect and trust. As Franklin Covey stated in his 7 Habits of Highly Effective People, talks about the Emotional Bank Account. He states you can only trust someone if they have developed an emotional bank account with the other person. “You make deposits in the emotional bank account through genuine courtesy, respect, and appreciate for that person and for the other point of view.”

When you make the commitment to establish an emotional bank account with another person:

You listen more, you listen in greater depth. You express yourself with greater courage. You aren’t reactive. You go deeper inside yourself for strength of character to be proactive. You keep hammering it out until the other person begins to realize that you genuinely want the resolution to be a real win for both of you. That very process is a tremendous deposit in the Emotional Bank Account.

And the stronger you are—the more genuine your character, the higher your level of proactivity, the more committed you really are to Win/Win—the more powerful your influence will be with that other person.

Dr. Covey stresses the idea that a Win/Win situation is achievable when this type of relationship is established. A Win/Win resolution to any issue can work for a monetary or emotional crisis. However his words fit perfectly with the idea that lawsuits start as emotion. Develop a relationship, work to a Win/Win relationship on the emotional basis and you may not need to identify the financial issues

Because Win/Win is a principle people can validate in their own lives, you will be able to bring most people to a realization that they will win more of what they want by going for what you both want.

You are probably starting with a negative balance in the guests Emotional Bank Account. You are the person representing the loss of money, income, the injury or even loss of life. Whether or not you had any or all of the responsibility for the crisis, you are the person who must open and Emotional Bank Account and start making deposits.

Work hard at making deposits in to the Emotional Bank Account. You cannot even open an account unless you are sincere, unless you care, unless you have real empathy and a desire to help. “With those guides you can listen and when the opportunity presents itself, start making deposits.

“By listening, you will here the opportunity to establish deposits.” Establish report. Listen for the opportunity to learn about the guest. Learn about what type of deposits they want. To learn how they deal with the different issues they present, by listening to them.

Habit 4 of Dr. Stephen Covey is Win/Win involves mutual learning, mutual influence, and mutual benefits. Relationships built on a Win/Win begin with character and move toward relationships out of which flow agreements.

Without trust, the best we can do is compromise, without trust, we lack the credibility for open, mutual learning and the communication and real creativity.

Compromise is a settlement and for most people settlement has a negative feeling, a negative connotation. Settlement is not the end of a problem, it is the result of what I was really owed, but I settled for something else. I was owed more, but I settled for less. You do not settle for anything in your life, why settle in this emotional issue. Settlement also means money. No emotion, only money. Once money is on the table, then money is the only currency that can be used to settle the issues. For money brings its own emotion, greed. And few, if any other emotions except love can overcome greed.

Who: You. It must be you or someone on your staff who can speak with authority for you and the business. Sending your attorney or risk manager will only raise suspicion that you have something to hide. You are real, you are credible, and you have the connection to the disaster that raises the concerns.

The guest has always dealt with customer service when there was a problem. Again what changed that moved the business response from customer service to risk management. The guest has a problem, deal with it, whether the room is too hot, they are short of towels, they are hungry or they are hurt.

What if the situation still goes bad? You have created several defenses to a lawsuit by being human, by showing kindness and being honest. The mother and son came back to the resort Mountain. The Mother and son rode the chairlift from which the boy had fallen. The defense: If it was so dangerous, why did you come back to the resort and ride the dangerous device. Why did you ride the same chair lift?

To rent equipment and sign up for the ski lesson, mother signed a rental agreement releasing her and son for future and past liability.

The thank-you cards I have from the mother make no allegations of negligence or wrongdoing on the part of the resort. A Plaintiff does not send the defendant thank you cards.

Even catastrophic accidents such as a customer death or accident can be handled to change a customer’s attitude about your company.

Even catastrophic accidents can be handled in a dignified manner providing comfort, support, and answers to your customers.

Your customer is at your business and their spouse dies. Have food delivered. Lots of food. Remember the casserole parade, (as I call it) of the sixties. Someone was hurt and within hours, casseroles were rolling down the sidewalk, some in the hands of mothers, others by kids. Families with problems did not have to cook.

Dealing with the problems, big and small can eliminate anger and many other emotions.

Helping a mourning family receive closure works. Unanswered question nag for years, maybe past the statute – maybe not.

This idea is not something that is person specific, anyone can use this technique. A friend of mine running a community outdoor recreation program had a minor injured on a mountain bike trip to Gunnison County. The program director called the father and told him about the incident and agreed to meet the father at the hospital about the time the ambulance was expected to arrive back to the Front Range.

At midnight, the agreed meeting time, my friend was walking into the hospital dreading what he was going to do. He knew beyond those doors was possibly an angry parent. He walked through the doors and met the father and they talked. The ambulance was two hours late, so both men had plenty of time to get to know one another. By the time the ambulance arrived they had become friends.

No litigation came from the child’s injuries. The program director and the father became such good friends they would meet for lunch.

In another situation, a rafting company in the Grand Canyon had an attorney receive a facial injury on a trip. She was helicoptered out of the grand to the hospital in Flagstaff. The river company managers met her in the hospital and spent time with her while she was there. When she checked out, she, along with an employee hiked down to the canyon and met up the trip and continued on. She later came back and took the entire trip again.

In both of these cases, they fear of dealing with an angry customer and the fear of litigation were put behind the business and the reality of dealing with an injured party was placed in the first priorty. In each case, the results were not successful in preventing litigation, but they had far reaching effects after the injuries had healed.

Money or Emotion

A mild mannered woman comes to the front desk of your business and asks for you by name. As you approach, she smiles and confirms your name. She then hands you several pieces of paper and says, “You’re served.”

Your rush to your attorney’s office with conflicting emotions fighting to surface. Rage that someone could sue you. Anger that you have to waste time over such a stupid issue. Concerned about the financial impact this is going to have on your business. Scared.

Your attorney reads the summons and complaint asks you a few questions and says, “Don’t worry, it is not personal. They only want money.”

Your attorney is wrong. It is personal. It is very personal for the plaintiff. For the consumer or customer listed as the plaintiff, the last issue your customer is thinking about is money. The customer is angry, is walking around with feelings of resentment. Your customer wants justice. He or she wants you and your business to hurt just as they hurt. They want to make sure that what you did to them never happens again.

It should be personnel for you. It is a sign of bad service, unjust treatment, or believing in lawyers and insurance companies too much. The easiest way to start a lawsuit is to protect your self from losing a lawsuit. That seems to be an impossible balancing act; however, it is quite possible and very easy. Worst-case scenario, you appear to be an honest, good-hearted person/corporation on the witness stand.

How you approach this problem, personal, or monetary is irrelevant now, but was critical at the time the problem first started.

References

Stephen R. Covey, 1989. The 7 Habits of Highly Effective People. New York: Simon & Schuster

Patricia Ewick and Susan S. Silbey, 1998. The Common Place of Law: Stories from Everyday Life. Chicago: University of Chicago Press

Lawrence M. Friedman, 1977. Law and Society an Introduction. Englewood Cliffs: Prentice Hall

John Rawls, 1999. A Theory of Justice. Cambridge: Harvard University Press

It's not what I write, It's what you Learn

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Wycoff v. Grace Community Church of the Assemblies of God, 2010 Colo. App. LEXIS 1832

So?

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Assumption of the risk is your best defense in these states

These states do not allow a recreational business or program to use a release to stop litigation.

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What is going to occur is less people are going to want to volunteer to be chaperones.

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Accrediting Program Increases Liability Exposure

Plaintiff’s filed suit

Plaintiff’s comments about the suit

The Disconnect

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BACKGROUND

FACTS OF THE CASE

LIVERY MISTAKES

INSURANCE COMPANY MISTAKES

INTERESTING LEGAL ISSUES

ANALYSIS

SUMMARY

Videos

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Assumption of the risk is defined as someone knowing and understanding the risks of the activity that injured them.

Keep your guests educated, healthy and happy and you will probably stay out of court.

Copyright 2011-2023 Recreation Law 720 334 8529, Recreaton.Law@Gmail.com

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Ten Reasons Why People Sue

Why: This questions is never answered

How: No one will Answer this question

Where: Why won’t they tell me where the accident happened

Answers: No one will answer my questions

Justice: I want justice its been promised to me since first grade

Community: I don’t want anyone else damaged by this company

Retribution: I want to put them out of business

Communication: I want them to talk to me

Acknowledgement: I want them to admit they were wrong

Revenge: closely aligned with the issue of justice

Closure: An element of many of the above, but a reality in the US today.

7 Mistakes Made by People who are called Defendant

Hire and retain Uncaring Employees: Hire Well, Train Well, and Treat Well

Failing Know Your Customers and why they are buying from you.

Failing to Treat Your Customers the Way They Want to Be Treated:

Examining the problem from Your Perspective: Your customer sees the problem differently than you. The customer may not even understand the problem.

Placing a ridiculous value on principles and pride. Principles & Pride Goeth Before a Lawsuit

Never know Why you are being sued: Sticking your head in the sand, or passing the problem to a lawyer does not resolve the problem.

Forgetting What Your Mother Taught You: If you act like your mother taught you, you won’t be sued.

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35 Years of Outdoor Retailer

The book for the Outdoor Recreation Industry Professional.

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