Certification and Standards: A Possible Noose for the Outdoor Recreation Industry
By Jim Moss

This is the second in a three part series on liability for certifiers, endorsers, and trade associations. The Spring 1992 issue presented information on potential liability hazards associated with the certification or endorsement of products and/or programs. This article will focus on the liability problems stemming from the development of industry standards.

During the past eighteen months, the outdoor recreation community has seemed intent on developing standards for various outdoor programs. Whether the reason for this is legitimacy, credibility, or promotion, the effect is the same. Standards create immediate liability, the pathways that plaintiffs will follow to a defendant's wallet.

Currently, there are no national standards for the outdoor recreation industry. Most state laws dealing with standards, licenses, and certification are fairly innocuous, and laws vary considerably from state to state. At present, the only standards for outdoors recreation that exist are minimal ones set forth by state statutes.

In a lawsuit, standards are the issue. The plaintiff must argue that the defendant broke the standard and injured the plaintiff. This allows the defendant to argue that the standard was not breached. Without a national written standard, the defendant can argue that there is no one standard, or that there are several ways to accomplish a goal. Arguable positions do not sit well with educators and those wishing to advertise their products, but they do allow for the legal defense of a position.

Without national standards, each program, outfitter, or guide can set his/her own standards based on the mil- lions of variables of the rock, river, or wilderness area where they operate. However, once a national standard is set, no matter how many variables are included or how benign the standards are, they create a noose the outdoor industry will hang from.

Violation of any of the standards, even if not a part of the accident, creates liability. If the plaintiff can dig through a set of standards and find a series of mistakes that the defendant made, even if they have nothing to do with the accident, it allows the plaintiff to show that the defendant was negligent in its actions, and therefore negligent and responsible for any accident. An example is the use of helmets on a climbing wall. An accident occurred when the plaintiff fell and broke an ankle because the belayer failed to catch the fall. The plaintiff's attorney starts by showing the standards breached by the defendant: helmets were not being worn. You did not supply helmets; therefore, you run a negligent operation. You were so bad that the accident was bound to happen. You did not care about your guests enough to give them helmets or make sure they wouldn't get hurt.

Whether the standard is used by the industry itself or the experts in the industry, you still have to live by that standard. As long as the treatise or journal is recognized in the industry, the court will recognize it and allow the jury to hear the standard breached by the defendant.

Of course, treatises can be impeached, but that is done by impeaching the authors, proving that they don't know what they are talking about.

At present, standards are subjective. They are argued about by the experts in the trial and decided on by the jury. If the outdoor recreation industry pulls together and does not testify for the plaintiff's side of arguments, then the credible experts, the experts that the jury will listen to, will be on the side of the outdoor recreation industry.

The usual arguments for the implementation of standards are that people don't know what they should be doing, or they don't know about new changes in the industry. Conferences, newsletters, and competitors can be sources of information about changes in the industry. Standards are rarely rewritten or updated fast enough to follow changes in the industry. Herein lies another black hole. Standards that do not change fast enough to follow changes create old standards that knowledgeable recreationists do not use. Standards that move too fast place into the stream of use ideas that have not been tested. An example might be a new product that creates greater safety in an activity and becomes the standard before all the flaws or greater danger from other sources appear. Kevlar is an example of a quickly adopted product that was placed into use and then questioned about its safety. Kevlar was used for rock-climbing protection. After it was in use, many articles expressed concern about its ability to handle wear and tear. If Kevlar had become the standard at any point along the way, soon thereafter the standard would have been wrong. In the end the concern passed. Kevlar is being used in protection, but it was a tough and exciting road for a while.

The second problem is that of standards that change in the middle of the activity. Kevlar is again a great example. Before the original standard could be rewritten, it had changed twice. This makes it difficult for people in the field to follow the correct standard. Think of how many new belay devices have appeared on the market over the past seven years and the complication involved in writing new standards to cover all of them.

Finally, standards create liability that plaintiff's attorneys do not even know about. To date, outdoor recreation lawsuits center on deaths or activities with large numbers of participants. Standards legitimize an industry (to a point) and, as a consequence, allow the plaintiffs the opportunity to sue. There have been few or no lawsuits about backcountry skiing, ice climbing, and other outdoor sports with few participants. Standards will allow a plaintiff's attorney to find lawsuits. Standards will change injured guests into plaintiffs.

This should not preclude you in any way from creating your own guidelines and risk-management policy. You should and will be held liable for your own standards. However, those standards are yours. They allow you to create, train, monitor, and live with the rules that you want, for the activities that you run, in the areas that you use, with the equipment that you feel is right for your operation. In addition, you can argue as the defendant that you created your own standards because there are no national standards and you want to be safe.

Whether you have been sued isn't relevant. Whether you want to pay for the damages you may feel responsible for isn't relevant. You want to be in the position to decide to pay, not to have the court tell you to pay. What is relevant is not forcing your goals and ideas on everyone else, and making everyone an easy target for litigation.

Jim Moss is a Denver-area trial attorney who specializes in recreation risk issues. He represents insurers, the rafting industry and recreational equipment manufacturers. He can be reached at 72340 W. Alameda Pkwy., Lakewood, CO 80228- 2841. Telephone: (303) 980-5353.