Staying in the Field and Out of the Courthouse (Revisited)

We are revisiting five of Reb Gregg’s previous posts on Sportwaiver.com. Nothing has changed since the article was originally posted. It provides important information for the service provider.

Doyice

by Charles R. Gregg

brett-square-300x300.jpgReb Gregg is a leading attorney, lecturer and writer in legal liability issues for adventure, education and recreation based outdoor programs. He is a true expert in the area of risk management.

The primary purpose of a risk management plan is not the avoidance of legal liability. Rather, it is the maintenance of a quality program; that is, one which deals reasonably and fairly with its clients or students and their families. A program that delivers what it says it will deliver, and does so in the context of reasonable management of the risks, is not assured of “safety” or freedom from lawsuits. But generally, if such a level of performance is achieved, legal liability issues are minimized and take care of themselves.

Good programs develop good risk management plans; and a good risk management plan will employ the principles of AMI – Analyze, Manage and Inform. This “AMI rule” is simple, important and easy to remember.

Analyze
The beginning point in the formulation of your plan is an analysis of what you are doing and why. Alignment of your choice of activities with the goals that you purport to serve is absolutely essential. Your mission or goal statement should be the North Star of your program and if your activities, structure, and schedule do not serve that mission, it will lead to confusion, and worse, among your staff and clientele. Importantly if these “surplus” activities include risks – and they certainly will – you are placing your staff and clients in jeopardy unnecessarily.

Another essential alignment is that between your program’s desired and expected outcomes and the desired and expected outcomes of the student and his or her parents. Confusion in this regard can lead to at least disappointment and frustration and possibly a claim that the program did not perform as it led the family to believe it would. Arguments supporting such a claim might include failure to provide certain activities or learning opportunities and failure to warn of the consequences of certain behaviors.

In this era of heightened competition in the outdoor recreation industry, programs are striving to be more interesting, more exiting, and more innovative than their competitors. Programs are expanding their activities to include climbing walls and other challenge course elements, extended wilderness experiences, and trips into urban settings and public venues – even foreign countries. These innovations carry new risks previously unanticipated. New activities often require the services of third party vendors – public and private. This increasingly popular method of satisfying the variety of experiences sought by the public carries certain risks. You are expected to use care in your selection of such vendors and may be responsible for their acts or omissions which cause harm to a student.

The careful administrator will be sure that innovations serve the mission of the program. That mission, of course, will vary with the uses and functions offered. If a program allows its facilities to be rented for a corporate conference, recreation event, or outdoor education program for example, the new risks and obligations must be understood, the goal of the “program” modified, at least for that function, and the expectations regarding responsibilities and outcomes must be shared with all concerned.

The most important aspect of this analysis “leg” of the AMI rule is to limit activities and risks to those which are manageable and serve the mission of the program and the expectations of the program and the people it serves. A vigorous analysis conducted by a responsible program administrator will eliminate activities and their risks which do not advance the purposes of the program, and will then turn to the business of managing the risks of those activities which are essential. Determine how well you do what you do (stop doing what you don’t do well, or hire more qualified staff); with whom you are doing it (an issue of qualified and trained staff and an informed and qualified clientele); and when and where you do it (understanding the environment and conditions in which your various activities will take place).

Manage
The Analysis described above should leave your program with only those activities which are consistent with your mission and only those risks which can be reasonably managed.

Each activity, and your program as a whole, has certain inherent risks – those which simply come with the territory. Without such risks, the activities would be very different, or eliminated altogether. The risk of falling off a horse or out of a canoe, or stumbling on a trail are, generally, inherent risks of these respective activities. If you eliminate the risk, you will not get on a horse, you will not get in a canoe (at least not on the water) and you will not venture off a concrete or asphalt path. Your clients do not expect, and your mission statement does not contemplate-cannot tolerate-the inactivity that would result if you were to attempt to eliminate the inherent risks of your program.

In addition to inherent risks, of course, other risks may present themselves and may be the result of careless acts or omissions on the part of staff or participants (negligence), of circumstances of the environment or facilities which could and should have been known or foreseen but were not, and, always, of that unforeseen event – a bolt out of the blue – which can cause injuries. Generally a program has no legal duty to protect a participant from the inherent or unforeseen risks of an activity. But a responsible program watches those risks carefully, attempts to reduce the prospects of harm arising from those risks, and certainly avoids enlarging those risks through acts or omissions of its administrative and field staffs.

Management responsibilities arise in a number of areas. These would certainly include the following:

– adequate disclosure to and collection of information from participants (see below);
– appropriate and well functioning equipment;
– emergency protocols, practices and policies which are clearly understood and appropriate to the tasks;
– an understanding of environmental conditions, including grounds and structures involved in the activities;
– maintenance of records of important aspects of the operation, including near misses and serious incidents, medical records of the campers, and personnel matters;
– a fair and well functioning administration which maintains morale at a high level and provides reasonable logistical support;
– screening and supervision of participants and staff; and
– selection, training, and policies regarding termination of staff.

Inform
The third leg of our AMI approach to risk management calls for the disclosure of aspects of the activities and other experiences likely to be encountered, for the benefit of participants and parents. Disclosure is particularly important regarding those activities with which participants and parents may not be familiar, and which might represent some departure from traditional outdoor programming – challenge course activities; remote backcountry trips; unique means of transportation, including in urban areas; reliability of various means of communication, including to remote situations; the use of third party providers and vendors, certain emergency medical help issues; and expectations regarding behavior and the consequences of failing to meet those expectations.

A participant in your program deserves to know what to expect. Perhaps more significantly, a person or family affected by an event or condition cannot be assumed to have consented to the risks of participation in that situation if they don’t know of it beforehand. (It could be difficult to convince a jury that an eleven year old child could have “just said no” to a jump off a thirty foot overhang into a natural pool.) Failure to disclose the prospect of a remote field trip, or the absence of radios, for example, may allow a family to make a claim that would not otherwise be available to it.

Another aspect of “inform,” of course, is to collect information from the participant so that you can determine his or her suitability for the activities. An alternative might be to provide enough information to the participant and to his or her physician regarding the requirements of the activities so both can intelligently resolve the issue of suitability.
This matter of informing, or disclosure, is as important as the other two parts of AMI. The purpose is to reduce surprises and disappointments so that a participant or parents cannot say of an activity which may have produced an injury: “I had no idea that. . . .”. Or “Had we known about that we certainly would never have. . .”

So there you have it: AMI, ANALYZE what you are doing and why, with whom, where and with what capability. Eliminate risky activities that don’t serve your announced goals and objectives. MANAGE well the activities, and their risks, which your analysis determines should be a part of your program. Finally, INFORM your participants and their parents of what they can expect.

Unfortunate things can happen to the best programs. What we do involves risk; but the rewards are tangible and give us confidence that, even in the face of the risks, the experience is a valuable one for participants. Following the AMI rule is no guarantee of freedom from accidents or liability, but it puts you well down the road to a quality program whose risks are reasonably managed.