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Types of Claims Brought Against Recreation or Adventure Sports Providers, Educators and Land Administrators

By Tracey Knutson

This is the second in a series of ATTA risk management articles and discussions.  In the first part of this series we considered some basic terms and concepts, some interesting facts related to the outdoor or adventure industry and looked at the structure of building a risk management program.  The first article can be viewed at http://www.adventuretravel.biz/docs/02ATTARMPrimer06.pdf             

In this series we give some consideration to the types of claims or lawsuits that are brought against commercial operators.  It is our hope that, in looking at the ways in which operators get sued and/or become exposed to liability, these liabilities can be accounted for or built into the risk management programs that we introduced in the first article.

In the next few articles we will look at issues like “what is reasonable (i.e. - non-negligent) conduct” for a commercial operator and what types of post incident or accident responses(s) are appropriate.

The following list then, constitutes the 6-7 most common types of claims brought against commercial recreation and adventure providers.  We provide case cites for you (and for your favorite counsel) so that you can reference these cases further if you so choose.

1. Co-participant Liability.  It is becoming more common for co-participants to sue one another when they injure or harm each other; the operator may or may not be brought into these types of suits.  Following the Knight/Jewett line of cases in California, it is generally thought that co-participants engaged in active sports are not liable to one another except where reckless or intentional conduct is involved.

Knight v. Jewett, 3 Cal 4th 296 (1992) Participant in active sports only liable to a co-participant for intentional or reckless conduct outside the range of the sport’s ordinary activities.                   

Mankoski v. Mieras, 1999 WL 33453871 ( Mich. App.).  Mankoski and Mieras go to the indoor rock climbing gym where they sign a release in favor of the gym.  Mieras is on belay and Mankoski falls from the climbing wall and sues his buddy saying that Mieras had too much slack in the rope and so couldn’t effectively operate the brake device. Mieras argued that Mankoski was hurt by an inherent risk of climbing so that Mieras had no duty to protect him from these risks and/or injuries.  The court dismissed Mankoski’s case saying that he was indeed hurt by an inherent risk of climbing, that his belayer would act negligently.

Blake V. Cotter  2001 Connecticut Super. Lexis 3500 (December 2001).  Blake sued his golf partner Cotter claiming that Cotter was negligent for driving their golf cart down a hill at a high rate of speed causing him to fall out and be injured.  Cotter claimed he was not liable to Blake because Blake accused him only of simple negligence, not of recklessness.  The Conn. Court rejected Cotter’s claims and held that the co-participant rule requiring a finding of recklessness was limited to team contact sports.

Dare v. Freefall Adventures, Inc., 2002 WL 432370 (N.J. Super A.D.).  Skydiver sues a co-participant for injuries sustained while attempting to avoid a collision.  Skydiver had the burden of proving the co-participant was reckless.

Moser v. Ratinoff, 105 Cal. App. 4th 1211 (January 2003).  Moser and Ratinoff were competitors in a long distance bicycle ride.  Moser sued Ratinoff after Ratinoff twice collided with Moser while Ratinoff was trying to move to the edge of the road so that Moser fell and sustained injuries.  Moser claimed Ratinoff was negligent and Ratinoff claimed this was an inherent risk of competitive biking.   The court did find that Moser had impliedly assumed the risks and, absent some showing Ratinoff was reckless or intentional in his conduct so that he had increased the inherent risks, Ratinoff owed no duty to Moser.

2. Premises Liability - this refers to the fact that landowners or other possessors of property being used for recreational endeavors can be held liable for injuries sustained by folks who are using their land or facilities.   Generally landowners or possessors will have the duty to inspect their property/facilities to discover defects, to remove or repair dangers, to warn users of hazards and to make their land/facilities reasonably safe.[i]

Estate of Adam Harshman v. Jackson Hole Mountain Resort and USA, 379 F. 3d 1161 (2004).  16 year snowboarder killed landing on head and neck after hucking off 20 foot tabletop jump in fenced off man made terrain park.  Allegations included premises liability, negligent management, maintenance and operation of terrain park.  Fed. Dt. Court found that JH owed no duty to protect Harshman from those dangers or conditions which are characteristic of or intrinsic to or such an integral part of the sport.  A provider of these types of opportunities is not required to eliminate, alter or control these inherent risks.  Court emphasizes that these decisions are not made in a vacuum but each case must be evaluated with the greatest specificity allowed by the factual record.  In this case, the terrain park contained posted warnings, had been inspected the day of the accident and Harshman himself was experienced and had used this jump many times before.

3. Negligent rescue, response or medical care.  Recreation and adventure providers have to be concerned about providing adequate response in the event of an incident.[ii]  When improper or inadequate rescue or response happens, or when the provider has no procedure in place, the claimant/participant will argue that an accident of some sort was certainly foreseeable and having a poor response exposed them to an unreasonable risk of harm.

Jaffee, et al. V. Pallota Teamworks, 276 F. Supp. 2d 102 (D.D.C., August 2003).  Jaffee died after participating in a charity bike ride sponsored by Pallota to raise money for AIDS research.  During this four day ride, one afternoon while Jaffee was participating she approached a medical aid station and complained of dizziness and nausea.  Volunteers gave her IV fluids and when her condition failed to improve and she began vomiting they gave her more IV fluids.   When her blood pressure dropped and she collapsed she was finally transported to a hospital.  She died the next day of a brain hemorrhage.  Jaffee’s parent and estate sued the race organizer claiming that they negligently trained and equipped the aid stations and then negligently failed to diagnose, monitor, treat and care for Jaffee.  Jaffee had signed a release however, that acknowledged the risk of injury or death, that stated she was physically capable of participating, that her medical care provider had approved her participation, and which included in the list of folks to be released the medical care folks.

4. Negligent supervision or instruction.  Recreational entities need to be aware that they have a duty to supervise participants.  Supervising generally includes things like directing, overseeing, managing, regulating, teaching, etc.[iii]

Dunn v. So. Calif. 7th Day Adventists, San Bernadino Sup. Ct. 1998;  Fourteen year old boy fell while rock climbing on a church sponsored camping trip and suffered severe brain injury.  Claims were negligent supervision and undertaking a high risk activity w/o sufficient experience. The club was found 70% negligent and the hiker 30% negligent.  Case was ultimately settled.

Bendik v.Crossroads School, (Ca. 1998) Fifteen year old girl killed on a school outing when she slid down a mountain snow slope after brief hike to scenic overlook.  Parents sued private school and guide service hired by school to take group on the outing.  Allegations were negligent instruction (snow sliding) and negligent supervision.  Jury found in favor of the defendant teachers/school where some of the testimony revealed girl did not follow instructions.

5. Negligent hiring or use of inexperienced guides, instructors, etc. Training involves decision making and judgment; so too does hiring the right people.  The judgments made by staff as they both inform people of the risks and treat them as clients and the judgments made by staff in the field can be the success or failure of the program and whether someone is injured or has a good experience.[iv]
   Motor vehicle use is a particularly big area to look at with personnel.[v]  You can be sued if there is an accident and you failed to properly screen your personnel.  Establish in your policies and procedures who is going to be driving and under what circumstances.  You should have copies of valid driver’s licenses and written agreements that driving staff are required to notify you of driving infractions.  Get Department of Motor Vehicle records checks on all driving staff; you can usually get these from your state highway department with the person’s name, DOB and their DL number.
   
   
6. Failure to Warn
   One of the most common allegations in lawsuits against outdoor oriented operations is that they failed to warn and inform participants of the risks involved and/or failed to give adequate instructions.  Operators must inform guests of the risks that they are taking in participating in an activity.
   
   Duty to warn can usually be accomplished by:
   • setting good policies or rules
   • posting warnings on equipment or facilities
   • oral warnings
   • good documentation like release and waiver documents
   • encouraging safe participation
   • making sure that all participants and spectators are aware of the inherent risks of the sport. 
   
   An effective warning is thought to be:
   • specific
   • obvious and direct
   • unambiguous, easy to understand
   • simple and complete. 

Suggestions include:
• laminating your instructions on a card so guides don’t forget something
• video your safety briefing or
• create a witness who marks off a checklist and then signs that you have covered all of the requisites.

Consider also the issue of how much information a guide should provide to a client; ask whether the old style of authoritative guiding sets the guide up for making all decisions rather than having the guide educate clients about the options and include them in the decision making so that guests are accepting the risks.[vi]  Before engaging in activities, guides/instructors/staff should conduct a safety talk. The basic outline of a good safety talk should include:[vii]                   

• Specific of the activity: area, weather, what can be expected on the trip, inherent dangers/risks, proper equipment use, proper techniques demonstration, what to do in the event of an emergency, that clients/students must follow the guide/instructors directions at all times.
  
• Participant Responsibility: the level of physical involvement, confirm that no one has a medical or physical condition that would prevent their participation or ability to help in the event of an emergency, explanation that no drugs or alcohol are to be consumed during activity, that guests must notify guides of any problems with equipment or other guests and that they must report any incidents or accidents.
  
• Closing - confirm everyone signed the release form or other forms your operation requires, ask about additional questions they might have, arrive at consensus that the group understands and accepts what is required of them in the activity and that they accept the risks of the activity, provide an “out” for participants who do not want to participate so that participation is voluntary.

7. Equipment Issues.  We are not really dealing with products liability here as it is such a large field in and of itself.  Suffice it to say that product manufacturers, distributers, retailers and others who provide equipment can be sued on the basis of negligent or faulty design or manufacture.[viii]www.traceyknutson.com  Operators or other providers can also be sued for improper fitting, lack of maintenance, noncompliance with standards or with the manufacturer’s instructions or representations.  Note that if you alter your equipment or use it against the manufacturer’s suggestions you can void the warranty on the product.  Modifications should be done only by trained personnel.  Make timely inspections of equipment and document your inspections and care so that damaged or overused equipment is repaired by qualified persons or replaced.   Inventory your equipment and number it and keep all manufacturer warranties and make sure the warranties are registered.

Conclusion
Again, in conjunction with reading this article, we recommend that you review the first risk management article (see, citation in first paragraph) we posted last year.  Combining an internal risk management program that you design for your own business with a knowledge of the types of claims that are most routinely made against commercial operators should allow you to design into your program steps to avoid the types of issues that lead to liability and exposure.  While most of us in this industry have felt that risk management remains such a crucial issue in today’s difficult insurance market and in today’s litigious atmosphere, it can often be difficult to keep this crucial issue “on the front burner” so to speak.  Making a practice of internally considering risk management and then periodically reviewing your internal programs keeps your business pro-active in risk management.  The end result is that you protect your business, you become more attractive to insurers and you (hopefully) avoid the headaches associated with legal claims.

Bibliography

[i]   See,  Law For Recreation and Sports Mangers, Third Edition, Doyice J. Cotten, John T. Wolohan, at Chapter 3.20 on Premises Liability, page 209.   Kendall/Hunt Publishing Co., Dubuque, Iowa..  

[ii]  Id. at  Chapter 2.31 on Emergency Care.  

[iii]   Id. at Chapter 2.32 on Supervision of Participants.  

[iv]   See, Staffing Issues in the Adventure and Recreation Industry, James V. Pearson, Section III, from Recreation & Adventure Program Law & Liability Conference, April 2004, Denver Colorado.  CLE International.  

[v]   See,  Safe at First, A Guide to Help Sports Administrators Reduce Their Liability, Gil Fried, 1999, Chapter 27, Transportation, page 296.  Carolina Academic Press, Durham, North Carolina.  See also,  Law For Recreation and Sports Mangers, Third Edition, Doyice J. Cotten, John T. Wolohan,  Chapter 2.34 on Transportation.  Kendall/Hunt Publishing Co., Dubuque, Iowa.   A Crash-Bang Ride Around Transportation Safety, Beth Anglin and Rob Chatfield, Outward Bound.  2002 Wilderness Risk Management Conference Proceedings, October 2002, Reno,  NV.   

[vi]   See, Legal Liability and Risk Management in Adventure Tourism, Ross Cloutier with Daniel Garvey, et. al.,  2000, Chapter Two on Tort Law, pg. 19. Bhudak Consultants, Kamloops, British Columbia.  

[vii]   Id. at Chapter Nine on Risk Management Documents, pages 126-127, quoting Will Leverette on Safety Talks.  

[viii]   See, Sports & Recreational Liability, Laura L. Horton, from Recreation & Adventure Program Law & Liability Conference, April 2004, Denver Colorado.  CLE International.  

Knutson & Associates
Tracey Knutson
P.O. Box 1026
Girdwood, Alaska 99587
PH 907-264-6610
Fax 907-783-2028       .

Related Article: What Tour Operators and Adventure Travelers Need to Know About Travel “Risk Mitigation” Insurance