Do Industry Standards Increase our Liability? (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.

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Readers will find that this is one of the best pieces to be found relating to industry standards and liability. Our thanks go to author “Reb” Gregg and to Steve Smith who originally published the article in Touchstones – News and Resources for Outdoor Programs for permission to run the article in SportWaiver.com. Touchstones is a publication of Experiental Consulting which focuses on risk management, staff training, and human resources for outdoor programs and is edited by Steve Smith. To subscribe to the newsletter, click here.
 

By Charles “Reb” Gregg, Attorney

There is anxiety in some quarters about the role of standards in our professional lives. Otherwise intelligent folks are, apparently sincerely, questioning whether standards are good for the industry. The anxiety is fueled in large part by a blog manager who wants us to believe that standards are dangerous because they provide a blueprint to an adversary in the event of litigation. In other words, his readers are advised, it’s best to pass up the chance to learn what others in the industry consider acceptable practices because you might violate those practices and be accountable for doing so. (Are you following this?)

Standards are a statement by a professional association, governmental or quasi-governmental agency, or other organization which wishes to guide constituents or a larger audience in achieving what it considers good practices. Standards are not mere “guidelines,” which are, generally speaking, suggestions only.

Good standards are those which are well examined by consensus groups of experts and other interested persons, and written in a manner that does not tie the hands of practitioners faced with circumstances that compel a deviation. They may purport to set out a “best” or “preferred” or “accepted” practice, or merely a floor below which an organization should not fall.

It is hard to imagine a truly “best practice” – one for which there is no better alternative in any circumstance. (Wearing a helmet in rock fall environments and a PFD when on water come close). Well crafted standards take this into account. They are clear as to what they are offering, which may range from “consider this,” to “most folks we reviewed do it this way” to “failure to follow this will expose your client to extreme danger.”

Standards, like industry practices, regulations and statutes, may be used by a Court to determine if a duty of care has been violated. A good statement of a standard will be clear about its intent. It will be interpreted by a Court of law in accordance with that announced intent and usage.

Some standards set precise measurements – strength and weight bearing capacity, for example. Others address more flexible and subjective issues – group size, adequacy of supervision, emergency response plans, etc. The latter are often drawn in anticipation of an expert reviewer determining what is “appropriate” under the circumstance.

A few randomly selected examples of standards:

  • “Does the camp have a program of training and rehearsal to prepare the staff to carry out their responsibilities in emergency situations?” (American Camp Association);
  • “The Program has conducted a hazard assessment and risk analysis for all program activities” (Association for Experiential Education );
  • “Lanyards shall have a minimum breaking strength of 5,000 lbf” (Association for Challenge Course Technology);
  • “The organization shall have a supervisory plan in place for all activities” (Association for Challenge Course Technology).

Objections to standards may arise from a misunderstanding about what degree of compliance is expected, or required. Is no deviation allowed? Are some standards mandatory and others only strongly suggested, or instructive? Other objections address the qualifications, including the experience and diversity of views, of those who create the standards. These issues are manageable in the formation of a standard and its publication to an audience. They are no excuse for categorically rejecting’ standards as a part of our profession.

I see both ethical and legal problems in the anti-standard argument I described above.

As a service provider you owe it to your clients to know what others in your field are doing – standards of varying degrees of authority, prominent industry practices and the internal practices and policies of highly respected practitioners, including your own. Failure to look beyond your own practices is the height of arrogance. If you are not acting in accordance with a customary industry practice, you must determine “they” are wrong and you are right, or change what you are doing. “They” may in fact be wrong, but if you deviate from prevailing practices you had better have a good reason for doing so. As I have said elsewhere: don’t do anything you can’t explain to twelve strangers.

Which takes us to the legal piece of this discussion. The law requires us to act reasonably in our dealings with others. “Reasonableness” is acting as a reasonable practitioner would act in the same or similar circumstances. ‘Reasonableness” is a standard of behavior in the law of negligence. It establishes the duty of care owed. Well considered and articulated standards are an effective means of determining what is “reasonable” by experts in the field. Industry standards are not a safe harbor in all circumstances. See for example the case of T.J. Hooper, et al v. The Northern Barge Company, 60 F26 737 (1932), in which a prevailing practice in shipping on the mid-Atlantic coast was found to be negligent. But if you are in compliance with a good set of standards, you are, as they say, playing the house odds.

Generally courts consider the violation of a standard as only “some evidence” of negligence. The violation of a particularly authoritative standard might create a “presumption” of negligence (a presumption which could be rebutted by evidence that the offending party was NOT in fact negligent). A violation of a law – a law is a standard of sorts – may in some limited circumstances produce a finding of “negligence per se” (a ruling that a standard of care was breached). In this case, the plaintiff would still have to prove some loss, caused by the alleged violation. The elements of negligence are: a duty, a breach of the duty, a loss, and a causal connection between the breach and the loss. Negligence per se is a finding that a duty of care was breached.

Experts can be found who will disagree about a standard: what it means, its application in a particular circumstance, and whether it is “right.” But generally, depending on the quality of the contributors to a set of standards and the acceptance of those standards in an industry, the “standards” side of the argument is where you want to be. You should expect to be held accountable if you deviate. You deserve to be held accountable, unless you can explain your deviation, or convince a jury or judge that the standard is not a good one. Furthermore, you cannot avoid accountability by disassociating yourself from organizations that set the standards.

Standards are embraced by those who seek excellence in their operations. The priority for such people is quality programming and good service to clients – not the avoidance of litigation. Standards may be seen as a threat by those who are not so careful and choose not to learn what others consider desirable practices. Inevitably an organization’s performance will be measured by some external factor – and standards may play a role in that measurement. But the answer is not to avoid the creation or adoption of standards: it is to be sure that standards are reasonably created, articulated and understood. There is a risk in violating a standard. There is a greater risk in not knowing what others, including experts in the field, are doing.

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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: Thanks to Nukeit1’s Photostream for the photo (http://www.flickr.com/photos/nukeit1/).