Duty and Liability

by Charles R. Gregg

Readers will find that this to be an informative legal liability article. “Reb” Gregg is one of the nation’s top adventure law attorneys. This article originally appeared on Reb’s website.

Q. How do I run a good program without being sued?                                                                             

A. You can’t. People can and may sue you, with or without justification. And even the best program can make mistakes which might provoke the lawsuit.

Q. So how do I reduce my exposure to possible liability?

A. The ultimate and best solution, of course, is a quality program: adherence to your mission; appropriate disclosures and collection of information to reduce surprises; effective screening and supervision of participants and staff; quality gear, properly maintained; an administrative staff and policies that produce good logistics and morale and fair compensation; and an effective emergency action plan, including post accident strategies.

But you can’t eliminate the bad things that might happen, and therefore your real issue, and the subject of what follows, is how to reduce the chances of a claim being made against you, and liability for that claim.

You cannot be liable to a person unless you owe him or her some sort of duty. That duty arises from a relationship which may be created by contract or some other interaction that imposes upon you an obligation to protect that person from harm.

The duty, as you have heard many times, is one of reasonable care. You are obligated to deal with your client as would a reasonable outdoor professional under the same or similar circumstances. Unique qualifications or a high degree of speciality might enlarge your duty over that of persons less qualified. A critical aspect of your duty is that you expose your clients only to activities whose inherent risks you can reasonably manage. In other words, operate within your competencies.

Of course, owing a duty to another does not make you an insurer of every goofy thing that might go wrong. You don’t have a duty to protect a client from everything.

Q. So, if duty is the starting point, how do I control or reduce my duty so that it is fair and reasonable in scope?

A. For starters, you have no duty to protect the client from the inherent risks of a recreational activity. Inherent risks are those which simply come with the territory, and without which the activity would take on a significantly different character. Generally the courts do not require that the potential claimant have particular knowledge of the specific inherent risk which caused the loss. A few States, however, do require some level of subjective knowledge of the inherent risks of an activity.

And you have no duty to protect a client from risks which that client expressly assumes (preferably in writing). The expressed assumption of a risk does require, for the elimination of a duty to protect from that risk, the client’s specific knowledge of the risk.

And you have no duty to protect a client from injuries the claims for which have been released. Some exculpatory agreements call for the release of “any claim arising out of (a described activity)”. Some may provide for the release of “any and all claims, including those arising in whole or part out of the negligence” of the provider of the activity. While some courts accept these general provisions, the better practice is to have informed the participant of the activities and risks, including the chance of negligence on the part of the provider and co-participants.

The elements of a negligence claim are duty, breach of duty, loss, and a causal connection between the breach and the loss. If there is no duty (and, again, there is none regarding inherent and expressly assumed risks, and risks giving rise to a claim for which you have been released) the claimant cannot make a case against you.

Q. Which is my best argument for “no duty”?

A. Of the arguments described above, the argument of inherency may be the most effective. Again, in most states an argument that the injury was caused by risks inherent to the activity does not require a showing of subjective knowledge of those risks. While this inherent risk doctrine is well embedded in common law (law established by Court decisions), some states have statutes that specifically deny recovery by a claimant injured by an inherent risk of a recreation activity. Some states’ statutes are related to a specific sport – skiing and equine activities, for example. Others’ statutes refer only to generic “recreation”. The more carefully crafted of these statutes will define inherency, and even the inherent risks, in such a way that a judge is able to dispose of the claim without the matter going to trial. If the judge finds that the injury was caused by an inherent risk, there is no duty to protect another from that risk, and that is the end of that!

A feature of the inherent risk doctrine which has particular relevancy for outdoor recreation providers is a body of case law which provides that among co-participants, and between an instructor and a student, the inherent risks of a recreational activity include what might otherwise be regarded as simple carelessness – conduct, that is, which is not outside the ordinary realm of what one might expect in the activity, or instruction in the activity. In a number of jurisdictions an instructor may be excused for making errors in assessing a student’s readiness to perform certain tasks, or a student’s condition, or other aspects of the activity. These issues, the courts find, are part of the ordinary process of learning, in which the student is pushed beyond his or her present skill level. Courts will require, however, that the coach or instructor follow a prudent sequencing of learning, so that the student is not abruptly and unexpectedly thrust into a circumstance for which he or she clearly could not be expected to be prepared. Failure to reasonably prepare the student is an enlargement of the inherent risks of the instruction, and may be considered negligence.

An instructor (or co-participant) is also liable if his or her conduct is found to be reckless, or willful and wanton (both being extensions of negligence, and the latter reflecting an element of intent in some jurisdictions.)

Reb Gregg, a previous contributor to SportWaiver, is a leading attorney, lecturer and writer in legal liability issues for adventure, education and recreation based outdoor programs. More of his pieces and resources are online at his website.

Photo Credit: Ines Saralva