Avoiding a Lawsuit: Deal with your guest’s problems, don’t pass the buck to someone who can only create a lawsuit.

As you prepare for the upcoming season, checking each piece of equipment and training staff, your personal pre-season checklist needs to be updated: how will you handle an emergency? Each member of your staff must be prepared, trained in First Aid and CPR and know how to respond to a crisis. But are you prepared for the responsibilities of making sure an injured guest will not sue you?

As you prepare for the upcoming season, checking each piece of equipment and training your staff, your personal pre-season checklist needs to be updated: how will you handle an emergency? Each member of your staff must be prepared, trained in First Aid and CPR and know how to respond to a crisis. But are you prepared for the responsibilities of making sure an injured guest will not sue you? This article will probably be the exact opposite of how you have approached problems in the past. I suggest, however, that you read and think, and then call your insurance agent.

Most times, we, the soon-to-be-defendant, place the idea of a lawsuit in the mind of an injured party. I was once involved in a lawsuit that started when the defendant called the plaintiff and offered to settle the lawsuit. The plaintiff hadn’t started a lawsuit, but like everyone today, had threatened to get an attorney. Because the defendant believed he had a lawsuit, the plaintiff called an attorney, and a lawsuit was started. Too often, we have been trained by our auto insurance cards to say nothing, get names and addressees, and tell the injured parties that our insurance companies or adjusters will call. Try this test. Get your staff together and ask them to say the first word that comes to mind after you say adjuster, settlement, claim, or insurance company. Eventually, the words remind them of money. We have, by following the advice of our insurance carriers, put the idea of money into the minds of injured parties.

By immediately bringing in third parties to handle problems, we remove the caring attitude on which the outdoor industry was founded and bring in strangers to handle a problem. Our care for the environment and its relationship with human’s dissolves when a human is injured by or in the environment. The majority of people that sue over an injury do not want money; they want their problems taken care of. Think about the last car accident you were involved in. Did you want a check or did you want your car fixed? If the inconvenience you encounter is eliminated, and you are returned to your situation prior to the accident, you won’t worry about the accident or getting money. Our first goal should be to place people in the position they were in before they were injured, not with money, but with the ability to get along, get well, and get back to the program.

How often do we shun an injured guest? Don’t shun them, get them back. Fulfill your commitment to provide them with the adventure and the relationship your course or brochure promised. This effort to bring back an injured participant will bring additional rewards.

When a guest is injured on a trip, he/she is dealing with an instructor and organization that he/she knows and trusts. The guests won’t worry about money. Put yourself in an injured party’s place. Who would you rather deal with, the guide and company with whom you have spent four days and have gotten to know and trust, or an adjuster that you don’t know? How would you feel if the people with whom you have just spent time building trust disappear? Don’t disappear.

Try this. When someone gets hurt, call your insurance agent, notify your attorney, and go to the hospital to tell them you are sorry that their vacation was ruined. Ask them if there is anything they need. Help them arrange special transportation home. Help them get back into the program or catch up with the trip. Give them a rain check, ask them to come back and use it, send them flowers, and help them get well. Double check their insurance form with the information from their medical release form (Outdoor Network, Winter 1990, Volume 1, Issue 8), make sure the deductible is covered under your liability med-pay, and help them recover. Why should they sue you? You are now a friend helping them, not someone who disappeared when the injury occurred to be replaced by a clipboard-carrying adjuster.

When you get mad at a friend, what do you feel? Anger. When you get mad at someone, you don’t know, you get an attorney. Prevent the lawsuit from arising by making an injured guest comfortable, make them like you, keep the adjuster who only talks money out of the equation. Insurance companies can only pay; they can’t eliminate the emotional problems. You can.

Too often, we are afraid of saying anything, for fear that it will come back and haunt us in a courtroom. That fear alienates us from someone we just spent days trying to get to know. We have to know our guests to help them get the most from the experience, and yet we run for cover when they get injured. A rafting company had an attorney that was injured on a rafting trip. The attorney was air-lifted out of the canyon and taken to the hospital. the staff visit her and made her hospital stay more comfortable. For the price of some flowers, and the time it cost to stop by and say hello before and after work, they made a friend. The attorney walked back into the canyon after she got well and rejoined the trip. She never sued.

The rafting company took a potentially devastating incident and turned it into a minor incident. Also, it was probably great advertising: “The trip was rough and exciting. I was injured, and the staff was super. I even hiked back in order to rejoin the trip.”

Clearing this with your insurance company will be the biggest hurdle. Walking into a hospital room and showing someone, you care will remind you of the first time you strapped on a climbing harness. Some of my clients and I have developed a program with the insurance companies that makes them less concerned. After an accident occurs, the insured, the insurance company, and I get on the phone and plan a procedure for helping the insured. Coverage is reviewed, and limits are set on the amount of money to be spent in covering the insured’s expenses and my fees. The insurance company is not left in the dark, and the insured knows that we are only a phone call away to answer questions and provide support. Call your insurance agent and find out how they feel about a program like this.

Next time one of your guests is injured, think about how they feel. They are probably a long way from home, alone, in a strange hospital. How much better would you feel if someone stopped by once in a while and asked about you? How more secure would you be if you knew you could call someone and ask them to pick up another book for you on their way home from work? How mad could you get if they sympathized with your injury, wanted you to get well, and wanted you to come back and see them again?

What do you think? Leave a comment.

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Make sure you understand what the other side is saying

Solving problems means listening and understanding first, solving the problem second.

As an attorney, I was trained to solve the problem. Ignore the symptoms and just solve the problem. However, that does not work outside of the law. In fact, if you follow that idea, you can turn a problem into a legal problem.

What do you need to do?

1.   Listen

2.   Make sure you understand.

You may not be able to solve the problem, but you can go a long way in smoothing the situation if you listen to the symptoms.

People just want you to care.

The first step in listening is making sure you understand what the person is saying. Ask questions to make sure you understand and to show you are trying to understand.

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See http://rec-law.us/XwOLNR

How often have you left a conversation and thought you understood what you need to do, only to find out later you either did not understand or did something that was no longer needed because you did not realize you needed to listen, not respond.

Listen first, and then respond.

Many times a person just needs to vent or have someone listen to them. Listening may solve the problem.

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By Recreation Law  Rec-law@recreation-law.com      James H. Moss         Jim Moss

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