Outdoor Network Volume I, Issue 7 - Fall 1990

LAWSUITS - THE INS AND OUTS OF OUTDOOR EDUCATION CASES
By Jim Moss, Attorney at Law

Each month, a new activity develops to lure the adrenaline junkie from one sport to the next. Bungee jump schools meet for early morning thrills, hopefully before the local constables are aware of the activity. Climbing walls are a standard fixture in the trendy health clubs. Paragliding is now the latest Euro import. As each new sport makes its entrance, the outdoor risk adventures of the past are being pushed aside to add new programs to keep up with the adrenaline demand.

In any article about outdoor recreational activities, there is no need to elaborate on the inherent risk of accidents. The education that we lack is how to prevent them from occurring, what to do if they do occur, and how to protect ourselves after they have occurred.

The riskier the sport, the greater the risk of trouble - not necessarily. Can you add these new activities to your roster of activities? Probably, dependent upon the state you live in, the training you provide, and your own ability to handle the strain. Actuaries will never understand Bungee jumping. When I worked for a large insurance company, I used to find one of them hanging around my desk every Monday morning. I found out later that they set up a pool on whether I would survive my weekends of rock climbing. They considered a late Saturday morning tee time to be as risky as you could get.

Once you are insured, your next step is to educate the participants about the risk of the activity in which they want to participate. The most important document you can use is your 'release/waiver/acknowledgement of risk' form. Contrary to popular belief, a properly written release form is being upheld in several states, with more states likely to adopt this form in the future.
If the sport in which you are a participant is deemed dangerous by the general public, an accident based solely on participation will usually not bring lawsuits. It is the actions of the people before, during, and after the activity that can precipitate a lawsuit. Common claims include: "I didn't know it was that dangerous," "the guide told me to do it that way," and "if the guide had not moved me, I wouldn't be in this situation."

If the participant thinks the sport is too dangerous, you have done a good job in detailing the risk. Give the person a refund, thank them for coming, and don't allow anyone to attempt to talk them into it. Be careful, though, to differentiate between being scared of the activity and being afraid of getting hurt. We all need encouragement when we have a basic desire to try, but can't. We all suffer when someone who is afraid of the activity engages in the affair after being assured that "we have never had an accident and you won't get hurt either." A good test of your pre-activity training is whether someone backs out. If no one ever goes home without participating, you aren't explaining the risks adequately.

The final and most important step is your reaction to any accident you have. The majority of lawsuits are filed because the injured party or his/her family were not satisfied with the way the incident was handled. Attorneys and insurance companies have a justifiable fear that the words spoken at the scene of an accident may come back to haunt them on the eve of a trial. By the same token, there is a warning on the back of most automobile insurance cards not to make a statement or give any information to anyone. Every couch potato knows that when the police appear, you have the right to remain silent.

But that same right may be the catalyst for legal combustion - a fire where everyone gets burned except for the attorney. It is easy to see why attorneys are the scorn of the insurance industry. They walk through the fire unscathed and bill the insurance company on a monthly basis.
"I am sorry" does not mean the same as "I am liable for your injury, your spouse, and your kid's education." Talking to any injured participant is the easiest way to discover what happened and how you can correct that error, and most importantly, it is a good way to develop a friendship with the party. Friends don't sue friends - they also get over that anger more quickly. All too often, when the information concerning an accident arrives at the office and the participant is safely in a hospital, everyone plays ostrich and sticks their heads under the desk, hoping they can't be seen or sued. Go to the hospital, talk to the injured party, find out what he wants to be made happy, and get to know him or her.

You learn more, make a friend, and probably get the participant back into the program. A client of mine had a personal injury attorney who was injured on a rafting trip. The entire staff stopped by the hospital to check on the attorney. Flowers were sent, books were brought, and no lawsuits have been filed. The injured party even hiked eight miles back into the river canyon to rejoin the trip.
A lawsuit is a scary word, especially if you are a named party. The best medicine to prevent this dreaded disease is to prepare in advance, but if that doesn't work, don't hide - walk up and smile and say, "How are you and what can I do to help you?"