Legal, Risk Management & Insurance Issues facing the Outdoor Recreation Industry as, I see it.

As the industry grows and matures, it is attracting litigation. Additionally, the industry is marketing and attracting more people with no real knowledge of the risk and as such are more willing to sue.

The Outdoor Recreation Industry is facing a lot of new as well as the same-old problems they have in the past. Two components are creating the problems. Most of the industry does not have trade associations looking out after their member’s interests, and the industry keeps shooting itself in the foot.

Overall, here are the big issues I see the industry facing in 2018.

  1. There has been a substantial increase in the number of lawsuits in the industry. I used to find 20 new lawsuits a year and had another 250 stretching back into the 1930’s I could write about. I figured I could write for about ten years and cover 90% of the issues. Now I’m finding 250 a year. I’m never going to run out of lawsuits to review and write about.
    1. That increase seems to be proportionally to the activities that advertise their sports, especially those that advertise to families or groups.
      1. Zip Lines
      2. Ropes or Challenge Courses (These first two items have their industry associations working harder to promote litigation against them, still, then to stop it.)
      3. Skiing (but mostly skier v. skier collision cases) If you can’t sue the ski area, sue your friend you were skiing with or someone you never met.
    2. There are some industries where the number of lawsuits is dropping.
      1. Skiing. There are fewer lawsuits against ski areas, there are more lawsuits between participants at ski areas.
      2. Whitewater rafting, seems to have fewer lawsuits, although that is also probably to a maturing of the sport, there are less people getting injured.
  2. The Plaintiff’s are getting more sophisticated and working harder at attacking releases. Prior to 2010 occasionally, you would see plaintiff’s attempting to have the release thrown out of the litigation. Now days you see every lawsuit attacking the release and a few of them winning. Enough plaintiffs are winning that it is encouraging other plaintiffs to sue and try to void the release they signed.
  3. We still have a large contingent of people attempting to try to make it harder to sue. However, this ultimately making it easy to win a lawsuit against the industry. It’s like building a terrific trench system during WWI. The trench worked perfectly unless you were overran and then your perfect trench becomes the best defense to your arguments or attacks.
  4. There are more product liability lawsuits, and more lawsuits based on the failure to properly understand or use a harness. Most of these are occurring in the climbing wall industry, a few in the ropes’ course industry.
  5. Individual sports are having no lawsuits still. However, that will soon change. As a recreational area grows in popularity a trade association or organization believing they can get good PR or increase their membership is creating standards, classes and ways to sue that never existed before. Soon you will have a way to sue a belayer while climbing on a wall or on the rock because a standard was created. The standard is the duty, that if violated by the belayer makes the belayer liable.
  6. California Proposition 65 is going to make life miserable for manufacturers.
  7. None of the trade associations are working to help the industry learn and stay away from litigation. No one announced the changes to California Proposition 65. However, that could cost companies in the recreation industry millions if not more. Threatening letters have already started to arrive in manufacturer’s mail boxes demanding money because the manufacturer did not follow or even know the rules.

This is not a complete list, but it is a lot. I’ll expand on some of these ideas through the year.

Hopefully, I’m wrong.

What do you think? Leave a comment.

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Copyright 2018 Recreation Law (720) 334 8529

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Rules support lawsuits. Education supports the program.

The longer I work in this industry, the more I believe a couple of things.

1.     We can’t keep people safe or accident free. Any program anyone advocating this position is ignoring the realities of life.

        You can have the safest ropes’ course or zip line in the world, and someone can fall down on the stairs leading to the first element. You can bubble wrap a kid and stick him in a padded room, and he can get hurt. Stick two kids in the room and both will get hurt.

        This does not mean you should not attempt to run a safe program within industry standards. What it means is the industry standards and the “people” promoting them should accept the realities of life.

        If you are working with someone promising to make your program safe, they are lying to you. Remember you have a first-aid kit at home and most people die in the bathroom. People are going to get hurt in your program at some point if you are running long enough.

2.     Since people get hurt no matter what we do, we might as well be prepared for it. Prepared means you and them. Prepared means knowing the most likely reasons why and how people get hurt at your program. Prepared means have the appropriate first-aid kit and training. However, your preparation is not enough.

        Your guests need to be prepared also.

3.     The best way to keep people from getting hurt is to educate them. Padding, protecting and eliminating only goes so far. People fall getting into and out of their cars in your parking lot. You can pad our parking lot, or you can know it is going to happen and be prepared.

        People, hopefully, know their cars and parking lots. However, you program is a big blank in their knowledge inventory. If they get hurt getting out of their car, they can get hurt getting into your boat, into your harness, into any part of your program. People get hurt before the program begins and yet 99% of the work to keep people safe, we all (including me) do is just about the program.

        (At the same time writing an article about the dangers of sidewalks or parking lot risks is just not fun.)

4.     Rules (laws), regulations and industry standards don’t work. The number-one reason they don’t work is your customers don’t know or understand them. On top of that they don’t know or understand what the rules are supposed to do or why. The more rules you make for your program the more ways you set yourself up for a lawsuit. The more an industry works to make standards/regulations the more ways your participant can break one with no idea what why or how.

        Your risk management manual, emergency plan or other such as documents are probably more helpful to the plaintiff in a lawsuit than to your defense.

Rules support lawsuits. Education supports the program.

Concentrate on educating your customers then. This does not mean to ignore changes in the industry that might make the program safer. This means that you can do more to keep someone’s safe if they understand how they are going to get hurt.

The legal principle of assumption of the risk was based on this. If you knew what you were getting into and got hurt you could not sue. This still holds true in most states for sports or recreational activities.

More importantly you are doing your customers a better service of educating them rather than threatening them. (Most releases contain several threats if you read them.)

Even better and ignoring the legal issues, participants who understand what they are getting into will have a better time. Their chances of getting hurt will be reduced and consequently, the entire trip will be better with no injuries. Your guests can reach for their goals of entertainment, enjoyment or growth and still present a great program to them.

·         Education is better than a threat. It worked for you.

·         Education is better than a release; one lasts forever, and the other one is hopefully never used.

·         Education shows you care, not that you don’t care.

Make your program safe but make your guests or participants knowledgeable. Help them understand their safety, their risk and their responsibility to keep themselves safe.

You and your program will be better off, and your guests will have been more fun.

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Great article on why some corporate apologies fall short and they are not sincere

The same goes with dealing with anyone in a Crisis.

The article starts with the apology from Netflix that created more problems than it solved.

If you don’t mean it don’t do it.

Throwing half-hearted apologies at an issue will just exacerbate a festering problem — and people will view it as an obvious and empty attempt to quiet the masses.

The article deals with the issues for a corporation or business that has created a public relations disaster. However, some of the ideas can apply to any situation where people are not happy or people are upset over an issue with you or your business.

Most reputation blows require a clear, strategic message, explaining two things: (1) what went wrong, and (2) what you are doing to rectify the situation

The latter part is equally important. People don’t complain to complain, no matter what you may think. They complain to get you to change or at the very least to acknowledge that there is a problem.

If there is a problem, tell them what you are doing to fix the problem.

If there is a reason why you are not following their advice, tell them that. Explain with as much detail as needed why you cannot do what they suggest.

Not all the ideas in the article I believe are great in all situations. The statement: “That is, don’t allow feelings of regret to cloud your best communications judgment.” I hope means to communicate clearly. I do believe that allowing true feelings, as long as they do not interfere with the communication, to be expressed to help the situation. When people understand that you understand, and are sorry for the situation, they are going to start to feel better.

Another statement that is great is “reaffirm their commitment to the values that underpin their companies” If your company has core values, remember them. Use that as your basis for dealing with the problem. Those values may provide a light to follow when you are being swallowed up with people throwing crap at you who are unhappy.

· Remember an apology cannot come from your attorney or your insurance company: don’t get them involved.

· Remember an apology must be real, or you are just ramping up the fight.

· Remember, work through your apology from the perspective of your guest or customer, not from your position. No one cares about your position.

For more ideas on this subject see:

Crisis Response

Crisis Customer Relationship Management

Ten Commandments of Dealing with People in a Crisis

7 Mistakes Made by People who are called Defendant

Ten Reasons Why People Sue

For other articles on Apologies see:

A Church wants to apologize and the insurance company for the church panics. What else would you expect a church to do?

Money is important in some lawsuits, but the emotions that starts a lawsuit.

Serious Disconnect: Why people sue.

Dealing with an accident, injury or problem is a conflict, when you allow yourself to create one.

To read the article see: Smart Apologies Should Be Strategic

What do you think? Leave a comment.

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Serious Disconnect: Why people sue.

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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