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Every legal problem does not have to have a legal solution. Sometimes you can just think!

Flag of the Red Cross Suomi: Punaisen Ristin l...

Damned if you do, Damned if you don’t really means you need to think

harder. Don’t make a rule or requirement; create a solution, solve the problem. Incentivize your employees to get training, advanced first aid training, and you avoid the legal problems and create a better work environment. Make a rule live and die by it. Provide training, incentive’s hire right and you don’t need the rule.

An article was posted recently about how outfitters and guides are damned if they do and damned if they don’t.  The issue was whether the outfitter should require their employee/guides to have first aid training. Legally, the answer was a mixed bag; whatever decision you the outfitter made would both increase and decrease your risk. The article was 100% correct………legally.

However, that is not the end of the discussion (it was the end of the article). There are several ways you could have guides who have first aid training without making a rule.

1.   The easiest way is to hire guides with first aid training. It does not have to be a requirement; it is just something you look for in an employee.

2.   You could provide incentives to your employees to go get first aid training. You could provide paid study time, study help or even pay for successfully passing a first aid training course. All are relatively cheap, provide a great benefit to both the guide and the employee, provide your guests with first aid trained guides and not put your neck in a noose.

3.   You can pay guides more who are first aid trained. Simply, the more training you have the more money you can make. Basic first aid provider with an eight-hour card is paid less than an EMT.

4.   You can make first aid training a requirement for promotions or pay raises. If you say that your chances of getting a pay raise or a promotion is greater with first aid training do you think your employees will go get trained?

5.   You can do the training yourself. One ski area I worked at became an EMT instructional organization and twice a week provided free EMT classes to its employees. By the end of the ski season, the number of EMT’s doubled on the ski patrol.

You can take a Red Cross Instructor course and the required first aid courses and quite soon become a Red Cross first aid instructor.

Teaching your guide’s first aid is the best first aid training your guests could ever hope for. Your guides will be trained in the problems your business sees. They will be trained with the equipment you carry and use. (I can’t tell you how many times I’ve come across a problem and dug through someone else’s first-aid kit hoping they had a particular item.)

English: First aid training dummies.

English: First aid training dummies. (Photo credit: Wikipedia)

Your guides trained by you in the real problems they may face with the equipment they will be


Here are five simple solutions to the problem. All solve the problem without creating a damned if you do, damned if you don’t situation. More importantly you have created an incentive in your employees without making rules, to help your employees and your business get better!

Do Something

Remember Marketing makes promises that Risk Management has to pay for? Man times outfitters advertise the first aid training of their guides; that is Marketing. What if you have made the promise that your guides do have first aid training? What if they don’t?

An example of how that could occur?

You advertise that each trip will have at least one EMT on the trip. The trip has four guides; one EMT and three basic first aiders.  Halfway through the trip the EMT is evacuated. The trip can go on with three guides. However, what is going to have if someone is injured after the EMT has left the trip?

Have you not broken one of your own marketing rules? Have you not breached the standard of care you advertised to your guests?

You can always answer your quest’s questions. “Yes, we try to have an EMT on every trip, and all of our guides have first aid training.” Answering a question is not something on your website or brochure that will come back to haunt you.

Solve the problem; don’t legally put yourself in a box to become a target.

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Outdoor Retailer Winter 2012 best advertising campaign – possibly ever!

Also the one that provided a lot of entertainment or fear in the men’s restrooms!

Sole inserts (or orthotics) had the best marketing campaign at winter OR.


Seriously, these were everywhere. In stalls, above urinals, next to the sinks these were everywhere. If you did not know about Sole when you left OR, you either spent less than an hour there or had the biggest bladder in the world.

Now if you weren’t just scared straight by the first bumper sticker, you were at least reassured by this one.


Thanks Sole for providing us something to talk about in the restrooms at Winter OR.

What do you think? Leave a comment.

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Tough fight on a case, release used to stop all but one claim for a CO ski accident

Squires v. Goodwin, 2011 U.S. Dist. LEXIS 129234

But for an outrageous expert opinion, the release would have ended this lawsuit.

This case is a lawsuit against Breckenridge Outdoor Education Center (BOEC) and two of its employees by a disabled skier. Also sued was the manufacturer of the bi-ski, a device that allows people with no mobility to experience skiing. BOEC is a non-profit that provides tons of great services for people, most of whom are disabled. In this case, the plaintiff was a “legally blind, cognitively delayed, and physically limited by cerebral palsy” minor.

The plaintiff went to BOEC with a group people from Kansas, the Adventure Fitness Program at Camp Fire USA. Before going on the trip the plaintiff’s mother signed the necessary documents, including a release and reviewed the marketing and other information provided to her. Upon arrival, the plaintiff was taken to Breckenridge Ski Area with two BOEC employees. She was skiing in a bi-ski with the two defendant skiers. One was a lookout or later termed blocker in the case and one held tethers, which controlled the bi-ski.

On the second run, the three were skiing down a blue or intermediate ski run. A third party not part of the suit lost control and skied between the defendant employee and the bi-ski into the tethers. This separated the BOEC employee from the bi-ski. The bi-ski proceeded down the ski slope, out of control hitting a tree. The injuries to the plaintiff were not described.

The plaintiff through her mother sued the bi-ski manufacture, BOEC and the two BOEC employees. The plaintiff claimed four counts of negligence per se because of violations of the Colorado Skier Safety Act against the defendant employee who was holding the tethers. (To see a definition of Negligence Per Se under Colorado law see Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability.) The plaintiff argued another claim sounding in “negligence, willful and wanton, reckless, and/or gross negligence” against BOEC. The remaining claims were against the manufacturer of the bi-ski which was dismissed in another action not the subject of this opinion.

This motion was a motion for Summary Judgment filed by BOEC to eliminate the fifth claim, the negligence, willful and wanton, reckless, and/or gross negligence of BOEC.

Validity of a Release for a minor signed by a parent under the CO Statute

The court first looked at the requirements for a release signed by a parent to be upheld under Colo. Rev. Stat. § 13-22-107, generally that the parent’s signature must be voluntary and informed. Prior to this decision, the only case that has taken a look at this issue was Wycoff v. Grace Community Church of the Assemblies of God, 251 P.3d 1260, 1277 (Colo. App. 2010) which I reviewed in 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.

In Wycoff, the release signed by the mother for the child was not upheld. The Wycoff release only had one sentence referring to releasing any claims. Here, the BOEC release had a minimum of six paragraphs informing the plaintiff’s mother that she was waiving her daughter and her legal rights.

Colorado law does not require the specific use of the word negligence in a release. However, all Supreme Court decisions to date had some language referencing waiving personal injury claims based on the activity the release covered.

The court concluded that the plaintiff’s mother signed a document that was clearly identified as a release, and thus she signed it voluntarily.

The court then looked at the release to see if it informed the plaintiff’s mother of the risks of the activity. The release had one full page that explained in detail the degree of risk involved in the BOEC programs. On top of that, the plaintiff’s mother had called and talked to the staff at BOEC as well as the staff of Adventure Fitness Program at Camp Fire USA that was taking her daughter on the trip.

After all of this, the plaintiff’s mother the court concluded was informed of the risks of the trip and the activity.

Validity of the Release

The court started by reviewing the Colorado requirements on how a release will be reviewed under Colorado law. This is fairly standard in all legal decisions.

Exculpatory agreements are construed strictly against the party seeking to limit its liability.” Hamill v. Cheley Colorado Camps, Inc.,     P. 3d    , 2011 Colo. App. LEXIS 495, 2011 WL 1168006, (Colo. App. March 31, 2011) (Reviewed here in Release stops suit for falling off horse at Colorado summer Camp.)

The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the court to determine. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998)

Although an exculpatory agreement that attempts to insulate a party from liability for his own simple negligence” is disfavored, “it is not necessarily void as against public policy . . . as long as one party is not at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004)

To be effective, the release must meet four criteria: (i) there must not have been an obvious disparity in bargaining power between the releasor and releasee; (ii) the agreement must set forth the parties’ intentions in clear and unambiguous language; (iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and (iv) the agreement may not violate public policy. Robinette, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093

BOEC bears the burden of proving each of these elements

The court then went through each of the four steps to make sure this release met the requirements.

(i) there must not have been an obvious disparity in bargaining power between the releasor and releasee;

(ii) the agreement must set forth the parties’ intentions in clear and unambiguous language;

(iii) the circumstances and the nature of the service must indicate that the agreement was fairly entered into; and

(iv) the agreement may not violate public policy

Other courts had found that recreation services are not essential services and there is no unfair bargaining advantage in these types of services. Those recreational services in Colorado where courts had made this decision included mountain biking, bicycle rental, skydiving, handicapped downhill ski racing, and rental of ski equipment.

The issue of whether the party’s intentions are clear and unambiguous requires a review of the document. To do that the court looked at the requirements for a contract in general. (A release is a contract, an agreement between two parties with consideration flowing between the parties.) “Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.“

In determining whether a provision in a contract is ambiguous, the instrument’s language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement’s provisions.

The meaning and effect of a contract is to be determined from a review of the entire instrument, not merely from isolated clauses or phrases.

Here, the release was written in simple and clear terms that were free from legal jargon, not inordinately long and/or complicated. Finally, the fact that the plaintiff’s mother indicated she understood the release satisfied this requirement.

The third requirement requires that the contract be fairly entered into. That means that one party is not so obviously disadvantaged that they are at the mercy of the other party. Because recreational activities are not essential services, and those services can be found through other parties who offer them this requirement is always met in the recreational setting. Essential services are those necessary for life. Examples are public transportation, utilities or food.

The last requirement is that the release does not violate public policy. This means that the release does not waive a duty of BOEC’s which cannot be waived. Again, recreational services do not make up a public policy or violate a public policy. In fact, under Colorado law, the public policy is to support recreational activities and thus have parent’s sign releases.

The expressed public policy in Colorado is “to encourage the affordability and availability of youth activities in this state by permitting a parent of a child to release a prospective negligence claim of the child against certain persons and entities involved in providing the opportunity to participate in the activities. Colo. Rev. Stat. § 13-22-107(1)(a)(VI)

Was there a Material Misrepresentation or Fraud in the Inducement in the relationship between the plaintiff and her mother and the defendant BOEC.


Marketing makes promises that Risk Management must pay for.

A release is voidable if it was secured based on a material misrepresentation or fraud in the inducement. Here, the plaintiff argued that BOEC claimed it met the highest standards of the Association of Experiential Education (AEE), which it did not. The plaintiff claimed that BOEC claimed that it was accredited by AEE when it was not, and it met the standards of AEE for adaptive ski programs when there was not any standard for that program.

BOEC stated that at the time of the accident, BOEC did not have any written ski lesson policies and procedures for the adaptive ski program. BOEC also admitted that at the time of the accident the accreditation was for other programs of BOEC, and that AEE did not accredit adaptive ski programs.

Based on these two representations, the plaintiff then argued that BOEC misrepresented itself to the plaintiff.

To establish fraud, a plaintiff has to prove that

(1) a fraudulent misrepresentation of material fact was made by the defendant;

(2) at the time the representation was made, the defendant knew the representation was false or was aware that he did not know whether the representation was true or false;

(3) the plaintiff relied on the misrepresentation;

(4) the plaintiff had the right to rely on, or was justified in relying on, the misrepresentation; and

(5) the reliance resulted in damages.

Here, the plaintiff could not prove that it relied on the misrepresentations of the BOEC and that the reliance was justified. The court did not find that BOEC had not misrepresented itself or its credentials. The court found the plaintiff had not proven reliance the final step needed to prove fraud.

The court also found that BOEC had not misrepresented the facts to the extent needed to be an intentional fraudulent misrepresentation.

At the time, BOEC followed the adaptive ski standards of the Professional Ski Instructors of America, (PSIA). BOEC was accredited by AEE for its other programs. The letter which had the critical information in it about standards, and accreditation was a letter used for all BOEC programs.

Was the conduct of the parties Willful and Wanton rising to the level of Gross Negligence?

This is always an issue when a release is signed because if the actions of the defendant rise to this level than the release cannot be used to stop claims for gross negligence or intentional acts.

“Gross negligence is willful and wanton conduct; that is, action committed recklessly, with conscious disregard for the safety of others.”  

The court then reviewed the opinion of the plaintiff’s expert witness. His report labeled the BOEC program as inherently unsafe and went on from there. (See Come on! Expert’s will say anything sometimes.)

Based on the expert witness report, the court did not dismiss the last claim of the plaintiffs for gross negligence. The opinion of the expert raised enough facts to create an issue that could not be decided by the court.

All but this final claim was dismissed by the court.

A well-written  release in this case almost won the day; it definitely took a lot of fight out of the plaintiff’s case. The only issue the release could not beat was an outrageous opinion by the plaintiff’s expert witness.

So Now What?

1.       Don’t make the court look for a clause to support your release. Put in the release the magic word negligence and that the signor is giving up their legal rights for any injury or claims based on your negligence. Here, the court was able to find six paragraphs that did the same thing. You can eliminate a few paragraphs if you are up front and honest. You are giving up your right to sue me for any claim or loss based on my negligence.

2.      Identify your document as a release. The court based its decision upholding the release based on the language in the release, and because it was labeled a release.

3.      If you communicate with a client in advance of the activity about the risks or the release, make a note of it. This again was important to the court in proving the mother was not misled and knew what she was signing.

4.      Besides specifically informing the signor of the fact they are giving up their right to sue, your release needs to point out the risks of your activity. Here, the court points out the page long list of risks as important in upholding the release. Too many releases do not include the risks.

5.       Make it easy for your guests to contact you and ask questions about your release, your activity and the risks. Again, the court pointed this out as a specific issue that was important in the court finding for the defendant in this case.

6.      The burden on proving that the release meets the requirements needed in a specific state is on the defendant. Consequently, it behooves the defendant recreation provider to place those requirements in the release so the plaintiff, upon signing, helps prove the document is valid.

7.       Marketing sinks more ships in the outdoor recreation industry than injuries. Make sure your marketing matches who you are and what you do, and that you are not misrepresenting who you are and what you can do. In this case, BOEC escaped a disaster with its marketing of standards and accreditation that either did not exist, or that it did not have.

What do you think? Leave a comment.

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INFLATION AND DEFLATION: A Quick Course in Outdoor Recreation Economics

Those of you who know me are probably falling over with laughter at the mere thought of me taking on anything to do with economics. However, we need to discuss inflation and deflation: The inflation of ratings and qualifications concurrent with the deflation of actual injuries and other issues.

In the past ten years, all North American Rivers and probably most of the world’s rivers have gotten harder to run. I make that statement with a straight face because I have read brochures from all over the world describing the difficulty of a river trip. The Arkansas River has two guidebooks that were written over fifteen years ago. Both guidebooks describe Brown’s Canyon between Buena Vista and Salida, Colorado as a Class III run. Both guidebooks describe the Royal Gorge just west of Canon City as a Class IV run. However, the majority of brochures from the 60+ rafting companies on those rivers describe Brown’s Canyon as Class IV and the Royal Gorge as IV+-V. The river got harder to raft, kayak and boat.

Scarier still, the State Government supports this inflation of the river rating, even though their own documents state those sections are Class III and IV. Either the river has gotten much more difficult or the outfitters on the river have inflated the difficulty in an attempt to market the river.

Let us look at this seemingly innocuous marketing technique and the legal effects it may have.

Scenario I: The owner of the Company is on the stand and is describing Brown’s Canyon. There is a tendency for the owner to want to downplay the difficulty of the river to prove it is a safer trip. The Owner will tell the jury how easy the trip is, and how the guidebook describes Brown’s Canyon as a Class III run. On cross-examination, the owner is presented his own brochure that describes the run as a class IV run. During closing arguments, the Owner is described as a liar. He says one thing on the stand, but advertises another thing to the public.

Scenario II: Same as above, but during cross examination the Owner is pressed on the differences. The Owner states that he is just increasing the difficulty for marketing purposes. The Plaintiff’s attorney presses the issue with the owner eventually admitting that he lies to the public in order to get the public’s money.

Scenario III: The Owner is on the witness stand and is presented with his own brochure. He states that Brown’s Canyon is a Class IV run. (What choice did he have, his brochure said it is class IV.) When asked what other outfitters are considered “good outfitters in Brown’s Canyon, the Owner describes several. He is then presented with both guidebooks, which clearly state that Brown’s Canyon is a Class III. He is also presented with the good outfitter’s brochures which state Brown’s Canyon is a Class III run.

Scenario IV: Same as III, however, the owner insists after being confronted with his brochure that Brown’s Canyon really is a Class IV run. The Plaintiff then brings in documentation, magazine articles, books and other evidence to show that running a Class IV river requires additional guide training, better boats, and more safety equipment, etc. The Owner has, based on his testimony, proved he did not meet the standard of care for a Class IV river.

Each of these situations places the Defense in a position where you never want to be! The person on the stand is proven a liar or at least admits he or she is misleading the public. The final scenario is death by stupidity. Instead of “can we win,” the discussion turns to how much will this cost.

I was in Canada at a Risk Management Conference where I brought this idea up and the Canadians laughed. They all knew about the American penchant for inflating the risk and thought it comical. Canadian law does not allow commercial rafting on Class V Rivers. The group named numerous rivers they had run that they believe were overrated by the American Outfitters.

Rivers are not the only things that suffer inflation. Guided mountaineering and rock climbing trips are inflated. Staff qualifications are a serious issue.

Many times brochures are printed to last several years. A brochure printed with the hope that it will last for years can create a serious inflation problem. It is common to see staff qualifications placed in the brochure. A group of employees/guides who have worked for one company while going through college may acquire four years of experience and EMT training. A brochure printed at the height of this staffing success would be remiss to not highlighting the guide experience and qualifications. However, eventually those guides move on and the company is faced with another group of first year guides with basic first aid training. The brochure touts the previous group of guides’ experience and the cost of reprinting the brochure is high. So, the outfitter continues to use the old brochure.

Scenario V: A large group arrives at your shop for a five-day backpacking trip. The Group Leader does this annually and does not recognize any of the guides. After talking to several, he realizes last year’s experienced guides have moved, and this year, there is a brand new crop of guides. He walks into your office with a brochure in his hand and is concerned about the trip.

Scenario VI: The Company Owner is on the stand for a trial where the issue is a decision made by the guide. The guide has already been on the stand and testified to her experience and qualifications, as well as to that of the other guides in the group. The Owner is faced with his own brochure, which advertises experience, training and qualifications not met, by any of the guides on the trip.

In each of these hypothetical scenarios, the outcome could be disastrous because the information provided to the public was not true.

In the same way, Deflation is also another problem in the outdoor recreation or hospitality industry. Deflation occurs when someone is hesitant about taking the trip and that person, group or leader is assured the trip is not as difficult as his or her mind has imagined it to be.

Scenario VII: A local school district is advertising for bids. They want to do a three-day canoe trip for their middle school. A local raft company has a permit for a class II section of river but nothing else. The Raft Company is competing against several canoe companies for the business. During the pitch meeting with the school district, the Company owner assures the School District that Class I water will bore the middle school kids, and they should under take a Class II trip. The Raft Company also provides more gear because they will include a raft to haul gear on the river. During the trip, the canoes are continually over turning, and the kids are miserable. The School District wants their money back.

Scenario VIII: The rock-climbing guide is having a slow week. A Midwest family is in a park and thrilled by the rock climbing. Climbing guide assures them that climbing is easy and anyone can do it. Later while frantically struggling on a pitch the Midwest customer falls and suffers a heart-stopping fall.

In both situations statements made at the outfitters operation have come back to haunt the outfitter. That line between bringing business in while not scaring it away is sometimes quite thin line and easily crossed.

In addition to the obvious issues in the last two scenarios, an additional problem arises. How are the statements made by the Defendant Company justified with the information in the release? In the last scenario, the Midwest Family after reading the release may ask more questions because the properly written release is honest about the difficulty. One Court in Colorado has stated that a statement made by a guide can void a release. As such, any comment made to induce someone to undertake a trip may blow the release right out of the courtroom.

Most of us by now have learned that any statement concerning risk or injuries can be dangerous. A brochure that advertises “No major injuries” is now trash after the first injury occurs. Similarly, any statement as to how “safe” the operation will always come back to haunt the company.

Equally dangerous I believe is information communicating a “family” activity. No parent is going to place his or her child in a dangerous position. A family-oriented activity is therefore, by definition “safe.” I have yet to see this occur, but I believe a sharp attorney can take the issue of marketing in a brochure and compare it to the information in the release. If the activity is as dangerous as the release states, advertising it as family oriented could be problematic in court.

Although statistically, we might be able to argue that compared to numerous other family activities, the Outdoor Recreation Activity was safe; a jury will undoubtedly concentrate on the reality. The activity was advertised as family oriented. “After hearing what happened, I would not allow my child to go. Therefore, it was not a family oriented activity; it was dangerous. The Outfitter lied.”

Contrast this with the ethical duty to inform your guest, participant or client of the actual risk of the activity, and you may believe you are walking a tightrope. However, the lines are broader than you might expect. The ethical viewpoint is probably the better way to view this entire issue. Is what you are telling the person the truth? Is what you are telling the person what you, as a parent would want to hear if your child was undertaking the activity? Would your mother accept what you are saying or would your ear be yanked, as you are lead to a corner to “contemplate your actions?” If you can pass those tests, you should not be running any liability traps.

What do you think? Leave a comment.

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