By Doyice Cotten
What is Risk Management? An expert in adventure law, Reb Gregg says:
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 (Charles R. Gregg. Staying in the Field and Out of the Courthouse. 2002)
In a recent California case (Chavez v. City of Santa Fe Springs, 2011), the appellate court overruled the trial court holding a waiver to be unenforceable because there was sufficient evidence that a jury might find that the city was grossly negligent. Here, I want to contrast some things the city did well from a risk management standpoint and what the city did that indicated poor risk management and left them potentially liable for the death of a teenager.
The city planned to take a group of 20 or more high school students on a five-day city-sponsored camping trip to a state park at the base of Mt. Whitney. While on the trip, 17-year-old John Chavez was swept over a waterfall during unsupervised “free time” and fell to his death. Subsequently, John’s mother sued the city alleging negligence and gross negligence.
What the City did Right!
- They held a mandatory meeting for parents explaining the trip to them.
- The answered the questions of the parents.
- They required that the parent sign a waiver of liability releasing the city from liability.
- The waiver was good enough that the trial court enforced it, relieving the city of liability.
- The city provided 7 adults to accompany 20 youngsters on the trip as chaperones.
What the City did Wrong!
- At the mandatory parents meeting, the city promised the parents that their children would be safe.
- At the mandatory parents meeting, the city promised that the youngsters would be supervised “at all times.”
- Two of the adults were law enforcement personnel with no supervisory duties.
- None of the adults received any special training regarding camping or hiking.
- There was no determination of the campers’ level of outdoor experience.
- There was no discussion of the type or condition of the shoes or other equipment the campers should bring on the trip.
- There was apparently no discussion of the slippery surfaces that might be encountered at the waterfall. (Some staff members had been on previous trips to the area and were aware of the risks that someone might slip and fall there.)
- There was no discussion of precautions that could or should be taken in light of the risks.
- The trip itinerary specified that there would be daily planned “free time” during which the teens were not supervised by staff and were permitted (and even encouraged to explore the surrounding area as long as they did not go alone and told a staff member where they were going.
10. Parents were not shown the itinerary; parents had been assured of supervision “at all times.”
11. Campers were not told to not to climb above or near the waterfall.
The author suggests that you click on the hyperlink to the case and read the entire case. Much can be learned about risk management by looking at the mistakes of others. One asks, how can a good idea go so wrong? It really boils down to the failure of the city to have and apply a sound risk management plan. Providers should learn all about risk management and its purpose – as Reb Gregg says in the opening quote, the purpose 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.
The appellate court found sufficient evidence to conclude that a jury might determine that the city was not just negligent, but grossly negligence. The court sent the case back to the trial court for determination if there was gross negligence.
Photo Credit: Thanks to Philms at http://www.flickr.com/photos/philms/2621012333/sizes/s/in/photostream/