Accreditation is marketing. In fact, it may be why you are being sued.

Posted: March 21, 2018 | Author: Recreation Law | Filed under: Uncategorized | Tags: ACA, Accreditation, American Camp Association, Check Lists, education, Marketing, Standards, training | 3 Comments

Marketing is not a way to manage risks or stop lawsuits. Marketing Makes Promises that Risk Management Must Pay For.

In an effort to sell services and promote their organization, many trade associations accredit, certify or anoint its members, with various titles, quasi degrees and paper to put on their wall and website. There is always a charge for the program and in many cases; the trade association’s budget is based on selling this program. Many times, these new programs are sold as a cure-all or at least help in risk management or litigation defense.

They are neither. At best, these are training programs; generally, they have little value other than for marketing. Worse, an accreditation can help you lose a lawsuit.

Several trade associations offer this marketing program as a way to show your future clients that you uphold the standards, or whatever of the trade association. (Ignoring the issue that people want to know if you meet their standards, not those of a trade association.) If you pay for the program you will be inspected/reviewed by “trained” members of the association who, then say you have a qualifying program or not. A trade organization will offer the idea that accreditation can provide risk management or better defenses to litigation. Because the program is up to speed on the latest and greatest or at least the tried and true for its industry.

These generally fail for several reasons.

Because no trade association represents a large segment of the industry and in most cases, they represent less than half of the trade. Granted, the better programs are usually members of the trade association, but that still does give them the clout or numbers needed to dictate how a member should run its business.
There are dozens of instances where a different way is being used, successfully by other members or non-members of the association. Consequently, the association’s way is proved ineffective or just not the only way.
State laws and prior litigation have changed the standards, and the trade association has not caught up making their standards look dated.

On top of that, trade associates move by their members. A new idea developed and used by one member needs to float t the surface and be discovered by the group writing the standards. By the time that happens, the standard is written, vetted, reviewed and published several years have passed. You need to react immediately to changes in your industry, not wait for someone to write it down.

Worse no new ideas are created because of fear that the idea will not qualify under the accreditation program creating liability for the member. If you develop a new way to run a program, that is safer but requires less people, you will be liable if you run the program without the required number of people because the association standard requires it. Even if your new idea has that extra person just standing around.

Marketing is not a defense against a lawsuit.

As much as we may wish, showing that an organization may hold itself to a higher standard to prevent litigation or help win a lawsuit, does not work. Standards of care or levels of doing something are not created by trade associations. The issue at trial is whether or not the defendant in litigation is determined by the jury to have met the standard of care proposed by the Expert Witnesses in the trial. Trying does not change that; trying to be good, trying to stay on top of things, trying to be educated does not cause a change.

In reality, it is a minimum two-step process that keeps one from losing in court. The first step is staying current. The second step is staying above the minimum required level of care a jury will accept. However, even these two steps may not be enough with the volume of information that flows today, and the speed which things change. Again the definition of the problem with trade associations and accreditation. The process to create the process is always behind the time curve. As such, the program that received the blessings of the trade association is probably out of date in a courtroom.

Marketing is simply an attempt to influence the decision making of someone. If that person believes that you are a better organization or offer a better program than your competitor, then your marketing was successful. Factors too numerous to discuss and of little relevance to this article go into marketing and how it influences a person’s decision. If you believe the seal on the door or the diploma on the wall going to influence someone to try your program, then take that route, just make sure you understand what you are buying and why.

On a side note, when I had an office, I had art on the walls, Not a single degree or diploma. In twenty years, only one person asked me where my diplomas were. I did not care to look at diplomas; I wanted to look at wildlife and nature scenes. I was spending more time in the office than anyone. Twenty years and only one person cared what diploma I had.

Someone who arrives at your business is going to have higher expectations. The person who sees the promises your marketing makes is going to expect that level or greater service. That expectation will apply, even if the accreditation has nothing to do with the program or the issues of your guests. You are accredited; therefore, I should not have been hurt.

That does not mean you should not tell the world how great you are. It means you must meet the marketing you are promoting.

Marketing also affects and to some extent, shows the world how you think of yourself. A current example is zip lines. For fifty years zip lines were used by the military to train recruits and by movies about the military to thrill viewers. The next twenty years zip lines were used in team building programs as part of a ropes or challenge course. Now zip lines have been used purely as an amusement device. People go out for a day of zip lining like they used to rent go karts or play a round of golf. Your marketing efforts to steer your possible clients back to the idea of team building are going to interfere and have to overcome the general expectations that zip lines are just fun.

Accreditation meets that same issue in the minds of the people coming to your program. Is the certificate on the wall to show me how good you are or on the wall to convince me not to sue? Alternatively, is the certificate proof that you did not take the proper care of me causing my injury. Marketing to cross purposes or marketing to reverse community beliefs is difficult.

Marketing makes Promises that Risk Management has to Pay For.

As stated earlier, the expectations of someone who has researched your diplomas, seals and other marketing accomplishments are going to have a higher expectation that you are not going to injure them. Your commitment to staying current, your efforts to obtain the seal of approval and the paper on the wall are proof, in your guest’s minds, that you are better than your competitors. Better may mean to provide a better program or service. It better definitely means your participants will not be injured.

The American Camp Association (ACA) has an accreditation program that the ACA recognizes for what it is, a marketing program. “ACA Accreditation: Valuable Marketing Tools.” The web page even makes that known. (http://www.acacamps.org/accreditation/marketing). Numerous other instances can be found where accreditation is synonymous with marketing.

Private Duty Service Expansion through Accreditation and Marketing Excellence
Importance of Accreditation as a Marketing Strategy
Use CLE Accreditation as a Marketing Tool

Marketing is not risk management and not good at providing a defense to litigation. The two are opposite in purpose. Marketing is trying to bring people to the program by telling people the program is great and to some extent, safe. If someone is injured, then the program was not safe and the marketing was not true. Having your marketing turn on you while you are a defendant is one of the worst situations to find yourself when involved in litigation. Having your marketing prove that you were a bad operator is the worst.

That does not mean you should not get the best training you can receive in running your business, no matter what the name of the certificate you receive at the end.

Accreditation does have a legal definition and support.

Accreditation from a legal standpoint is defined by Federal Statutes. The Department of Education oversees accreditation of colleges and universities in the United States. A list of accredited college and universities and the agencies that can accredit a college or university can be found at the Department’s website. (There is also a list of those colleges that are no longer recognized.) The department of education also has a statutory scheme for determining how an educational organization will be accredited, which can be found at USC § 1099b. Recognition of accrediting agency or association.

From a legal standpoint, an accredited educational intuition is on that list. It is eligible for federal and state assistance and students of those colleges are eligible for federal financial aid.

Accreditation from any other organization for any other purpose is done to enhance or market the organization seeking the approval and the agency granting the approval. Let’s first look at what this means.

If you are not seeking to offer federal financial aid to your students or receive federal aid, then accreditation can be anything you want. If you want to be accredited, send me $10.00, and I will accredit you. (You have been accredited by James H. Moss) My accreditation has the same legal value and possibly the same marketing value as any other accreditation you can receive. The issues are not. What was done, but what can you hang on your wall and advertise to prospective clients who make you look good? (The $10 will get you a cheap diploma you have to print yourself.)

A good attorney will always look behind the diploma to see what is being covered up. Throw rugs hide spots on carpets, and pictures hide holes on the wall. Attorneys know that paperwork on the wall may be covering up something that the program felt they lacked. In some cases, he or she may only find a hole in the wall. In many cases, he will see that the accreditation is just marketing. Even without an injury that can be associated with a violation of the accreditation requirements, the attorney will use the accreditation against the organization. As the owner proudly runs through his accomplishments on the witness stand, mentioning that his organization is accredited by XYZ trade association the plaintiffs’ attorney will be prepared.

The plaintiff’s attorney will have gone through each of the accreditation requirements that the organization no longer meets or violated and have the owner admit to the problems. If the accreditation is not really based on any real requirements, (like mine), then that will also be pointed out. Either the organization manager or owner will come away looking like they bought the paper to impress guests, or they earned it and then ignored it. A marketing program gone awry.

In many cases, this “accreditation mills” type of accreditation may be probably safer from a legal perspective. There is no list of items or requirements that can be used to show you violated that as an accredited organization, you should not have broken.

You are, in fact, buying marketing when you seek accreditation. This purchase works both ways providing the accrediting agency with value because they can list the organizations that have received accreditation, thus promoting themselves. The organizations that receive accreditation have come to the trade association for its seal of approval boosting the association’s standings the eyes of the industry.

However, accreditation can have a negative side also. Accreditation usually is accompanied by a list of the requirements that must be met. The more the accrediting organization wants to promote itself the longer the list. For an agency that has been accredited, this list then becomes a set of rules which they have agreed to meet. Any failure to meet these rules or regulations cannot be violated. Example:

If the accreditation says you will have one guide per five guests any variation from this at the time of an injury, and the plaintiffs (injured person) attorney has proof that you violated your own rules or standards of operation. In effect, you have provided the plaintiffs with a list of rules which you have agreed not to violate at risk of losing your accreditation.

If accreditation was a true accreditation, it would be removed when an accredited organization fails to continue to meet accreditation. Remember the Department of Education has that list of colleges that no longer are accredited. I’ve never seen a trade association do this (doesn’t mean they don’t).

By providing the plaintiff’s attorney with a list of requirements for accreditation you have also provided the plaintiff’s attorney with the standards that you have breached. The standard is what a reasonable man or organization would do in your situation. Instead of having to dig and hire expects to achieve that information, the plaintiff only has to look up the requirements for accreditation. If the injured guest, the plaintiff’s attorney’s client, was injured when something on that list was not met, then the attorney has proof of a breach of a standard.

It is irritating to see an expert witness report from the plaintiff that goes through each of the points the defendant missed for the diploma hanging on the wall. Most times the plaintiff’s expert witness was trained by the trade association that created the accreditation.

How do you think the Defendant feels watching someone trained by an association he paid money to join and more money to receive their marketing program testify against them?

In the above case, if the accreditation required one guide per five guests and there were twenty guests than the program needs four guides. If one guide stops to look at a flower or slows to tie his shoe, the program now has one guide per 6 or seven guests. If a guest is injured at that moment, the plaintiff’s attorney will argue that the injury could have been prevented with more guides, the standard required a specific number of guides, the defendant organization knew it needed more guides, (it was accredited) and if failed to provide the necessary number of guides.

Accreditation, like any outside review can cost you.

Whenever you have someone come into a program and provide you with a review of your program, that review may come back to haunt you. It is subject to discovery in litigation. Discovery means any document or witness that may have information that may lead to information about the case must be provided to the opposing side. Any document, such as an accreditation review, whether you passed it or not, must be given to the opposing side. Consequently, you want to make sure that any outside review is done in a professional manner and that negative comments and issues are either handled correctly, fixed immediately, or are not part of the written review.

Accreditation has greater value, greater weight for the plaintiff when you have failed to meet the requirements you paid to have reviewed. If the accreditation was so valuable to you, it cost you time and money to receive, how could you, then ignore it without violating the rules?

An example of this that went wrong is the case of Adam Dzialo. (See Marketing is marketing and Risk Management is not marketing, http://rec-law.us/1bPWl1c; Money is important in some lawsuits, but the emotions that start a lawsuit., http://rec-law.us/xbSs4M; Serious Disconnect: Why people sue., http://rec-law.us/wm2cBn, Wow, someone apologized, http://rec-law.us/xEIujw) Adam was enrolled in a summer camp run by Greenfield Community College. The college had just undergone a review to achieve accreditation. The accreditation report stated the number of instructors for the whitewater class was insufficient. Adam suffered a leg entrapment during a whitewater class suffering permanent brain injuries. The number of instructors for the class was below the number required to achieve accreditation, and this became a major issue during the litigation. The review provided in the accreditation process was used by the plaintiff to argue the defendant was negligent.

The defendant was told their program was insufficient, and they ignored that notice. Is the defendant liable?!

Accreditation from the perspective of an advanced degree

If you do not want your program to be marketed as an amusement but something that provides greater benefits, you might align yourself with educational organizations. As such, an “accreditation” may add that aura of validity as an educational organization rather than a summer camp. No matter that most kids would rather go to a fun summer camp than an educational one. (Not that those concepts are totally separate.)

In a courtroom, however, the marketing will be stripped bare and what you are will be laid out in the courtroom. No matter how much money you spend on marketing, if the jury sees you as an amusement park, you are an amusement park, and your marketing program will be exposed as a ruse.

It is easy to strip away an accreditation program. A plaintiff’s lawyer simply goes to the list of developed by the US Department of Education of accreditation agencies and looks for the association that accredited you. As the defendant, you are then in a position of trying to prove the value of your accreditation or diploma on the wall. What did you pay for it and why? What value does it really have? If it is not recognized, isn’t it no more than a marketing program or worse a scam.

The department of education has a statutory scheme for determining how an educational organization will be accredited. USC § 1099b. Recognition of accrediting agency or association. The department of education itself does not accredit educational institutions.

Many times an accrediting association believes that by creating a list of objectives, rules and items to meet the accrediting goals, they have done a good job. In essence, the more rules and paper the better the accreditation. However, as the Department of Education and as most people already know, more does not mean better. The accreditation is based on the “the institution’s mission, goals and objectives, resources and resource allocation, student admission requirements, student support services and the quality of the faculty and educational offerings.” The accreditation is based on the college’s goals as well as the accrediting organizations’ goals.

More may mean very bad.

One of the basic tenets of education is teaching. Helping the student understand, comprehend and be able to use the knowledge gained. One of the tenets of accreditation is the educational organization employs instructors who know the subject matter of what they are teaching but also employs people who have been trained to teach. Very few association accreditation checklists look at whether the instructors have degrees in teaching.

Accreditation at best is just one of many ways an organization can show they strive to be as good as they can and to maintain good practices. It is among a list of things that an organization can do. That other equally important, if not more important items include constant training of employees, maintain professional relationships with trade associations and attending conferences, staying current in the industry. However, the paper on the wall or the seal of approval on the front door, do not prove that this was either effective or provides any protection. The issue is and always has been doing the defendant organization breach a duty of care to the injured plaintiff.

So, what does it mean when you do not meet the standards or accreditation of the trade association when someone was injured?

A legal duty is the duty owed to the plaintiff or what would a reasonable person do in the defendant’s situation. Duty is the first of four steps that the plaintiff must prove to prove negligence. Those steps are:

Duty
Breach of a duty
Injury proximately caused by the breach of duty.
Damages from the injury

For the plaintiff to win his or her lawsuit, the plaintiff must prove all four elements of negligence. As you can see, nothing in the definition of negligence is based on the diplomas on the wall or the certificates in a file.

The hardest part of any negligence suit to prove for the plaintiff is, was there a duty and a breach of the duty. Duty is defined as the standard of care of a reasonable person or organization in the same position as the defendant. Normally, the plaintiff and his or her attorney would hire expert witnesses to determine if the duty was breached. However, if there is a written document which the defendant has agreed to abide by in running his or her organization, the written document will be substituted by the plaintiff as the standard of care. Those requirements that you met to be accredited are then transposed by the plaintiff as the standards of care that you agreed to meet. Your agreement to meet those requirements is evidence by you proclaiming them to the guests.

By agreeing to them or by calling them standards, it is a foregone conclusion, almost, that, that is the standard of care you breached.

In effect, once accreditation is obtained, it becomes the level of operation that the organization can never fall below. It becomes a list of requirements the organization must always meet every day.

Accreditation or lack thereof, can also come back to haunt you in another way. Like any misrepresentation, if you claim you have a level of training or skill, and you don’t. That is misrepresentation or fraud. Even if the accreditation has no value as a defense and is only a marketing ploy, failure to have what you claim is fraud, and you are liable for any injury your misrepresentation caused.

A good example of that is you are accredited by XYZ Association on January 1, 2012 for a three-year term. Your accreditation says you have your staff trained in current CPR. In January of 2014, the American Red Cross changes how CPR is taught, and none of your staff are current. In fact, 99% of the people trained in CPR are no longer current. If on January 2, 2014, you have someone have a heart attack on your property who dies, are you liable because you stated and held yourself out as being accredited and yet you were not?

Professional relationships, membership in trade associations, employee training and staying current rarely have the possible kick back that the certificate on the wall may have. Those ways of maintaining professionalism do not come with a list of ways that you have failed to be professional.

Another way that any type of training can come back to haunt an industry is in raising the expectation of the guests of the industry above the normal level of care.

Any value of accreditation that once existed has been diluted by its adoption by numerous other industries. Once the sole domain of higher education, as stated earlier anyone and everyone are now offering accreditation for anything and everything. As such, the term has lost any significance in its value to the public. And that value has always been as a marketing tool rather than a legal defense.

Accreditation to be valuable must occur regularly and be current.

Another major issue is once a program receives accreditation. The program ceases to stay current. The program rests on its laurels on in this case the accreditation. The accreditation provides a false sense of accomplishment and finality, when just the opposite is true.

Staying current in an industry is the only way to stay in the winning column in litigation.

Major Organizations do not offer Accreditation.

Very few trade associations offer accreditation. They know that the cost of keeping the accreditation up to the level it should be along with the risk it subjects its membership too, do not justify the time and expense. Some of the organizations that do not offer accreditation in the outdoor recreation industry are the National Ski Area Association, Boy Scouts of America, Girl Scouts of America and America Outdoors. All of these organizations represent large groups of people. Commercial or business ventures that are serious about their business and represent a large segment of their industry.

Is Accreditation bad?

No accreditation is not a bad thing, unless you are sold on the idea and achieve the accreditation on a mistaken theory that it will assist in either staying out of court or winning in court.

However, like all programs you must know what you are buying. No longer are the days of caveat emptor the rule of the day. That legal pronouncement was created when determining the age of your transportation consisted of looking at the horse’s teeth and walking around the animal. Now days you can look at a car engine for hours and never know if it will run for a day or a lifetime.

The plaintiff is opening your program’s hood and looking forward to seeing if your program runs. You are saying it will because of the paper on the wall or the seal on your website. The trade association went through a checklist of items and issues to hand you a piece of paper. None of those items can guaranty the safety of the guest. All of those items can be used by the guest to prove the program liable and hold you and the trade association accountable.

As it applies to you when you are looking at marketing your program as well as when your clients are looking at your program. If you believe that a marketing program will protect you, you are not studying the program hard enough. Neither will accreditation guaranty the safety of your guests.

Make sure you know what you are accomplishing before you start.
Justify why you are going down that route.
Make sure if your path can be interpreted two ways, that you cover both options to make them good ideas.
If you find problems fix them immediately.
You understand the difference between risk management and marketing.

References:

The Database of Accredited Postsecondary Institutions and Programs

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The blurry line between agent, independent contractor and employee can be used against you if you do not understand the differences and put it in writing.

Posted: December 11, 2017 | Author: Recreation Law | Filed under: Minors, Youth, Children, New Jersey, Summer Camp | Tags: Apparent Authority, appearance of authority, Brochure, campers, citation omitted, Contractor, discovery, Duty of care, genuine, golf, Golf Camp, golf club, hired, home builder, Independent Contractor, logo, Marketing, master-servant, minor child, mouth, New Jersey Professional Golf Association, NOLS, non-moving, Outward Bound, PGA NJPGA, planning, Professional Golf Association, professional golfer, renewed, Respondeat Superior, servant, Standard of review, Summary judgment, Summer Camp, supposed, YMCA, Youth Camp | Leave a comment

The use of the PGA name was not enough to tie the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.

Choi and Keane v. Hunterdon County YMCA, Inc., et. al., 2017 N.J. Super. Unpub. LEXIS 2737

State: New Jersey, Superior Court of New Jersey, Appellate Division

Plaintiff: Seung Yon Choi and Gerald J. Keane on behalf of E.K., a Minor as Guardian Ad Litem, and Seung Yon Choi, and Gerald J. Keane, individually, Plaintiffs-Appellants

Defendant: Hunterdon County YMCA, Inc., Michael Trianio, Chris Nallen, Alex Baker, Erica Croat, The New Jersey Professional Golfers Association, Inc. (NJPGA), James Mullen, Defendants, and The Professional Golfers Association, Inc.

Plaintiff Claims: negligent supervision

Defendant Defenses: no relationship to create an agency

Holding: for the defendant

Year: 2017

Summary

A minor was injured by another camper at a golf camp. The parents sued everyone involved including the PGA. The PGA filed a motion to dismiss because they had nothing to do with the camp.

The motion was granted because there was no legal relationship between the camp and the PGA. The use of the PGA logo by the camp in its brochure was not enough, if allowed by the PGA, to establish liability.

Facts

The minor, age 5, was enrolled in a YMCA golf camp. The golf camp in its brochure advertised the camp would be run or the instructors would be PGA professionals. The PGA logo was used on the brochure.

The minor was struck in the face by a golf club swung by another minor at the camp. The parents sued the defendants listed above for negligent supervision. Prior to this motion, the plaintiff settled with all the defendants except the PGA (Professional Golf Association). The PGA filed a motion for summary judgment arguing it owed no duty of care to the minor plaintiff. The motion was granted by the court, and the plaintiff’s appealed.

Analysis: making sense of the law based on these facts.

The issue was the involvement of the PGA in the operation and control of the camp. The PGA argued they had nothing to do with the camp, almost indicating their name and logo had been used without their permission.

The parents argued two issues. The PGA was liable under the theory of respondeat superior and camp, and the professional golfer hired by the camp had apparent authority to act for the PGA.

The phrase respondeat superior means the employer could be found liable for the acts of an employee, if at the time of the occurrence the employee was acting within the scope of his or her employment. The easiest example of this is you have an employee who in their personal car goes to collect the company mail at the post office. On the way back to the office the employee has a car accident where the employee is at fault. The employer is liable for the acts of the employee because he or she was working or doing work for the employer at the time of the accident.

Under respondeat superior, an employer can be found liable for the negligence of an employee causing injuries to third parties, if, at the time of the occurrence, the employee was acting within the scope of his or her employment.” To establish liability, a plaintiff must show “that a master-servant relationship existed.” “If no master-servant relationship exists, no further inquiry need take place because the master-servant relationship is sine qua non to the invocation of respondeat superior.”

If you have employees do this make sure you have non-owned auto coverage under your company business insurance or purchase a business automobile policy.

In this case, the professional golfer hired to instruct at the camp was an independent contractor of the YMCA and not employed by the PGA. The master servant relationship was created because the professional golfer was an independent contractor of the YMCA and did not work for the PGA.

The record indicates Nallen was hired by the NJ Golf Foundation as an independent contractor to run the YMCA’s Golf Camp. The NJ Golf Foundation paid Nallen $2700 for his services, which was reflected in an IRS form 1099-MISC used for reporting income paid to independent contractors. The PGA is not mentioned in the agreement signed by the YMCA and the NJPGA. Plaintiffs failed to offer any evidence that would show, or even create a
genuine dispute of fact, that Nallen was in a master-servant relationship with the PGA. We agree with the trial court that a master-servant relationship was not established merely because Nallen was a professional golfer who had competed in PGA events as a member of the PGA.

The second theory was there was an apparent agency between the PGA and the professional golfer.

If a principal cloaks an independent contractor with apparent authority or agency, the principal can be held liable as if the contractor were its own employee if it held out the contractor to the plaintiff as its own servant or agent.” Liability may be imposed on the principal based upon “apparent authority” when “the principal’s actions have misled a third-party into believing that a relationship of authority in fact exists.”

The issue is the principal, in this case the PGA must cloak the agent, the professional golfer with the authority to do something on behalf of the principal.

Liability arises if “the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business uses, and the nature of the particular business, is justified in presuming that such agent has the authority to perform the particular act in question.”

Because the PGA did nothing, possibility did not even know about the camp, the PGA could and did not cloak the professional golfer with any authority to do anything.

To satisfy its burden of establishing the apparent authority or apparent agency relationship, plaintiffs had to establish: “(1) that the appearance of authority has been created by the conduct of the alleged principal and it cannot be established ‘alone and solely by proof of [conduct by] the supposed agent,’ (2) that a third party has relied on the agent’s apparent authority to act for a principal, and (3) that the reliance was reasonable under the circumstances.”

This prevents the principals of the world from being drug into every lawsuit any blowhard could create. You have no control over the people walking around saying they work for you, you may not even know they are saying it let alone even know they exist. Therefore, their actions cannot drag you into litigation that you have no knowledge of.

By contrast, there was no evidence of voluntary conduct on the part of the PGA to create an appearance that the YMCA or Nallen had authority to act for the PGA. Indeed, there was no evidence the PGA was involved in any aspect of the planning or administration of the YMCA’s camp. There was no evidence the PGA was even aware of the use of its logo or name in the YMCA’s brochure prior to this lawsuit, let alone that it authorized its use for the YMCA’s marketing purposes. Again, the appearance of authority “cannot be established ‘alone and solely by proof of [conduct by] the supposed agent[.]'”

Since there were no acts or actions on the part of the PGA they were allowed to be dismissed from the suit.

So Now What?

I suspect that the PGA is going to maintain a closer hold on the use of its name in the future. I also suspect that in a couple of states, this might have had more traction. The PGA, like many other organizations, works hard to uphold the values and qualifies its name represents. Consequently, legitimacy can be provided to a program or camp by using its name.

The same issues appear in the outdoor recreation world. I just finished an article where name NOLS was used to describe a program, that was not a NOLS program. NOLS and Outward Bound represent the top tier of outdoor training in the US short of the AMGA for more technical skills. As such always be a little suspicious when their names are bandied about. Is it truly a course being offered by them or are they using the name to provide legitimacy to what they are trying to do.

The other issue is who has authority to do what for your business or program. Keep your eyes and ears open for the use of your name by anyone.

Finally, this might have gone another way if there was not a written agreement between the professional golfer and the camp. Everyone wants to blur the lines when there is an injury. The IRS lives on blurred lines when taxes are not filed. If you hire independent contractors, you should look at hiring them with a written contract.

At the same time, hiring independent contractors to do the work of employees will also get you in hot water. If in the industry, normally employees do the work that your “independent contractors” are doing, you will be writing big checks to the IRS, Workers Compensation and to the employees themselves.

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Choi and Keane v. Hunterdon County YMCA, Inc., et. al., 2017 N.J. Super. Unpub. LEXIS 2737

Posted: November 29, 2017 | Author: Recreation Law | Filed under: Legal Case, Minors, Youth, Children, New Jersey, Summer Camp | Tags: Apparent Authority, appearance of authority, Brochure, campers, citation omitted, Contractor, discovery, Duty of care, genuine, golf, Golf Camp, golf club, hired, home builder, Independent Contractor, logo, Marketing, master-servant, minor child, mouth, New Jersey Professional Golf Association, non-moving, PGA NJPGA, planning, Professional Golf Association, professional golfer, renewed, Respondeat Superior, servant, Standard of review, Summary judgment, Summer Camp, supposed, YMCA, Youth Camp | Leave a comment

Choi and Keane v. Hunterdon County YMCA, Inc., et. al., 2017 N.J. Super. Unpub. LEXIS 2737

Seung Yon Choi and Gerald J. Keane on behalf of E.K., a Minor as Guardian Ad Litem, and Seung Yon Choi, and Gerald J. Keane, individually, Plaintiffs-Appellants, v. Hunterdon County YMCA, Inc., Michael Trianio, Chris Nallen, Alex Baker, Erica Croat, The New Jersey Professional Golfers Association, Inc., James Mullen, Defendants, and The Professional Golfers Association, Inc., Defendant-Respondent.

DOCKET NO. A-5375-15T2

SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION

2017 N.J. Super. Unpub. LEXIS 2737

September 19, 2017, Submitted

November 1, 2017, Decided

NOTICE: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.

PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.

PRIOR HISTORY: [*1] On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0159-14.

CORE TERMS: golf, independent contractor, apparent authority, logo, summary judgment, master-servant, brochure, professional golfer, citation omitted, summer camp, duty of care, standard of review, respondeat superior, appearance of authority, home builder, contractor, non-moving, marketing, supposed, planning, servant, genuine, hired, golf club, minor child, discovery, renewed, campers, mouth

COUNSEL: Carter, Van Rensselaer and Caldwell, attorneys for appellant (William J. Caldwell, on the brief).

Cascio & Capotorto, attorneys for respondent (Jeffrey A. Savage, on the brief).

JUDGES: Before Judges Yannotti and Leone.

OPINION

PER CURIAM

This action arises out of injuries sustained by a five-year-old girl, E.K., while attending a golf camp. Plaintiffs, E.K.’s parents Seung Yon Choi and Gerald J. Keane, brought suit on their own behalf and on behalf of E.K. They appeal from a June 28, 2016 order granting summary judgment to defendant Professional Golfers Association of America, Inc. (PGA). We affirm.

In the summer of 2013, plaintiffs enrolled E.K. in a summer “Golf Camp” offered by defendant Hunterdon County YMCA, Inc. (YMCA). The YMCA summer camp brochure’s description of the Golf Camp stated that “PGA (Professional Golf Association) Professionals will provide a friendly and relaxing environment where your child can learn the fundamentals of” golf, and that “campers will spend half of the day with PGA professionals playing golf[.]” The PGA’s logo was displayed above the description of the Golf Camp in the [*2] brochure.

On July 27, 2013, E.K. was accidentally struck in the mouth by a golf club swung by another minor child. E.K. sustained injuries to her face and mouth including the loss of multiple baby teeth.

Plaintiffs filed suit against multiple defendants including the YMCA and several of its employees; Chris Nallen, the professional golfer hired as an instructor at the camp; the parents of the minor child that hit E.K. with the golf club; the New Jersey Professional Golfers Association, Inc. (NJPGA); the New Jersey Golf Foundation, Inc. (NJ Golf Foundation); the PGA Foundation; and the PGA. In their amended complaint, plaintiffs alleged that E.K. would not have been injured but for the negligent supervision of the Golf Camp and the campers. Plaintiff also alleged that Nallen was a member, official, agent, servant, or independent contractor of the PGA, that the PGA had a duty to ensure Nallen would properly supervise the Golf Camp, and that the PGA was an independent contractor of the YMCA.

The PGA filed a motion for summary judgment. The motion was denied on January 28, 2016, because discovery had not yet been completed and the court wanted to give plaintiffs the opportunity to develop [*3] their claim against the PGA. Plaintiffs then settled with the NJPGA, NJ Golf Foundation, Nallen, and the YMCA and its employees. After the close of discovery, the PGA filed a renewed motion for summary judgment, arguing that it owed no duty of care to plaintiffs. On June 28, 2016, Judge Michael F. O’Neill granted the PGA’s renewed motion for summary judgment. Plaintiffs appeal.

II.

Summary judgment must be granted if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.” R. 4:46-2(c). The court must “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). “[T]he court must accept as true all the evidence which supports the position of the party defending against the motion and must accord [that party] the benefit of all legitimate inferences which can be deduced therefrom.” Id. at 535 (citation and internal [*4] quotation marks omitted).

An appellate court “review[s] the trial court’s grant of summary judgment de novo under the same standard as the trial court.” Templo Fuente De Vida Corp. v. Nat’l Union Fire Ins. Co., 224 N.J. 189, 199, 129 A.3d 1069 (2016). We must hew to that standard of review.

Based on our standard of review, we affirm substantially for the reasons set forth in Judge O’Neill’s thoughtful and well-reasoned decision issued on June 28, 2016. We add the following.

III.

“[A] negligence cause of action requires the establishment of four elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages.” Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594, 59 A.3d 561 (2013). “The determination of the existence of a duty is a question of law for the court.” Petrillo v. Bachenberg, 139 N.J. 472, 479, 655 A.2d 1354 (1995). “Under respondeat superior, an employer can be found liable for the negligence of an employee causing injuries to third parties, if, at the time of the occurrence, the employee was acting within the scope of his or her employment.” Carter v. Reynolds, 175 N.J. 402, 408-09, 815 A.2d 460 (2003). To establish liability, a plaintiff must show “that a master-servant relationship existed.” Id. at 409. “If no master-servant relationship exists, no further inquiry need take place because the master-servant relationship is sine qua non to the invocation of respondeat superior.” ]Ibid.

The record indicates Nallen was hired by [*5] the NJ Golf Foundation as an independent contractor to run the YMCA’s Golf Camp. The NJ Golf Foundation paid Nallen $2700 for his services, which was reflected in an IRS form 1099-MISC used for reporting income paid to independent contractors. The PGA is not mentioned in the agreement signed by the YMCA and the NJPGA. Plaintiffs failed to offer any evidence that would show, or even create a genuine dispute of fact, that Nallen was in a master-servant relationship with the PGA. We agree with the trial court that a master-servant relationship was not established merely because Nallen was a professional golfer who had competed in PGA events as a member of the PGA. See Basil v. Wolf, 193 N.J. 38, 62, 935 A.2d 1154 (2007) (a principal is generally immune from liability for the negligence of an independent contractor).

IV.

Plaintiffs argue that even if Nallen was an independent contractor, liability can still be imposed under the doctrine of apparent authority or agency. See Sears Mortg. Corp. v. Rose, 134 N.J. 326, 337-38, 634 A.2d 74 (1993). “If a principal cloaks an independent contractor with apparent authority or agency, the principal can be held liable as if the contractor were its own employee if it held out the contractor to the plaintiff as its own servant or agent.” Basil, supra, 193 N.J. at 63. Liability may be imposed on the [*6] principal based upon “apparent authority” when “the principal’s actions have misled a third-party into believing that a relationship of authority in fact exists.” Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 317, 735 A.2d 576 (App. Div. 1999). Liability arises if “the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business uses, and the nature of the particular business, is justified in presuming that such agent has the authority to perform the particular act in question.” Id. at 318 (citation omitted).

Plaintiffs seek to impose liability on the PGA based on the use of the PGA logo and references to the PGA in the YMCA’s summer camp brochure. In Mercer, we reversed summary judgment granted to Weyerhaeuser, a [*7] large building and lumber supply company, because “[t]here was no dispute that Weyerhaeuser authorized [the home builder] to use its logo on [the home builder’s] business cards, brochures, press lists, correspondence and newspaper advertisements at the time that plaintiffs purchased their homes.” Mercer, supra, 324 N.J. Super. at 321. As such, there was a factual dispute over “whether plaintiffs relied on Weyerhauser’s conduct (lending [the home builder] its name and logo for marketing purposes) in deciding to purchase these homes[.]” Id. at 319.

1 The PGA asserts the use of its logo was apparently authorized by the NJ Golf Foundation or the NJPGA, which contracted with the YMCA. Plaintiffs have not shown those entities were alter egos of the PGA.

Moreover, the PGA did not hold Nallen out as its agent or employee. Indeed, [*8] there was no evidence the PGA was involved in any aspect of the planning or administration of the YMCA’s camp. Thus, plaintiffs, unlike the plaintiffs in Mercer, have failed to meet their burden to show apparent authority. Therefore, we need not address whether plaintiffs relief on the alleged apparent authority, or whether that reliance was reasonable.

Affirmed.

Do You Understand Inbound Marketing? Pimping a Book for a Friend, But a Good Book

Posted: November 22, 2016 | Author: Recreation Law | Filed under: Uncategorized | Tags: Eric Pratt, Inbound Marketing, Marketing, Marketing and Advertsing, Revenue River | Leave a comment

How to Lead and Compete in a Digital Universe: Growing Your Business in a Digitally Distracted World

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

Posted: January 8, 2014 | Author: Recreation Law | Filed under: First Aid | Tags: Education and Training, Emergency medical technician, EMT, first aid, First Aid Training, Guides, Marketing, Occupational Health & Safety, Outfitters, Risk Management, Standard of Care, Standards, training | Leave a comment

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. (Photo credit: Wikipedia)

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

using.

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!

Posted: March 1, 2012 | Author: Recreation Law | Filed under: Uncategorized | Tags: Insert, Marketing, OR, Orthotic, Sole, Winter Market | Leave a comment

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.

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

Posted: February 6, 2012 | Author: Recreation Law | Filed under: Colorado, Release (pre-injury contract not to sue), Skiing / Snow Boarding | Tags: Adventure travel, AEE, Alpine skiing, BOEC, Breckenridge Outdoor Education Center, Breckenridge Ski Area, Camp Fire USA, Colorado, Lawsuit, Marketing, PSIA, Standards, Summary judgment | Leave a comment

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.

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INFLATION AND DEFLATION: A Quick Course in Outdoor Recreation Economics

Posted: September 8, 2010 | Author: Recreation Law | Filed under: Uncategorized | Tags: honesty, Marketing | Leave a comment

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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Buy it today, it’s less than a buck!

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

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

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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.

INFLATION AND DEFLATION: A Quick Course in Outdoor Recreation Economics

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How to Lead and Compete in a Digital Universe: Growing Your Business in a Digitally Distracted World

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

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

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

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

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35 Years of Outdoor Retailer

Recognized as the Go to Lawyer by the Outdoor Recreation Industry

If you want to book an appointment?

Outdoor Recreation Risk Management, Insurance & Law

My New Book: Boating the Grand Canyon: A “How To” for Private Boaters

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James H. Moss, J.D.

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