Many of American Whitewater's members are also river guides or instructors and several own companies. This article is primarily directed towards protecting the outfitters from liability litigation. However, we think this information will be of general interest to our members and volunteers who help with events, races, and other activities. Liability and litigation are ever-increasing facets of river management and use and its good to be aware of trends in risk mitigation.
A large part of the success of any risk management plan is the understanding, simplification, and implementation of a program that actually gets used by everyone in the organization.
Many levels of complexity and detail can be utilized, but the essential basics are fairly simple. Based on my examination of dozens of lawsuits against outfitters and the results of conducting hundreds of risk management consultations, a few instructive lessons are apparent. This process has given me the opportunity to identify the most critical factors that could hurt or help in the event an outfitter is faced with frivolous litigation.
The following comprises a list of these important risk management tools that most outfitters would benefit from using:
Develop a means to prove that guests were adequately warned and informed. This avoids claims that, "My client was not adequately warned and informed, and therefor did not know what s(he) was getting into". This is the single most common allegation against outfitters and the most difficult one to disprove without some kind of documentation. There are many ways to go about it.
You can design a basic safety talk outline and laminate it on a small card that your guides can use to make sure they do not forget important points. You can give out handouts to participants with pertinent safety information prior to the trip. You can post signs, do a safety video, or any number of other creative solutions. Redundancy is always a good idea and reduces the possibility of ambiguity.
Safety guarantees, which are made in your literature or marketing materials, are an open invitation for a lawsuit. Instead, you can talk about things like your excellent safety record, extensive staff training and/or experience, and membership in professional trade organizations without actually guaranteeing safety. Everything you can do to make sure your guests know what they are getting into and what is required of them is in your favor. This includes sharing information in all printed materials, advertising, and even scripts for your guides to answer frequently asked questions.
All field staff must have current basic first aid training. It's the industry standard. All the government's permitting agencies require it. You have to do it. In fact, in today's world, with numerous recreation industry specific first aid courses now widely available, it could be argued that basic first aid training may not meet the prevailing industry standard. Think of it this way: would you want one of your own family members to be attended to by someone with basic first aid, or would you want them to be helped by someone with a higher level of training?
You should develop a written emergency/evacuation plan for all areas and activities that you'll be using. The plan does not have to be rigid or precisely adhered to in all situations as that would be unrealistic and impossible. However, it does needs to contain general guidelines and information that the field staff will find useful in an emergency situation.
One good witness statement will shut down a frivolous lawsuit faster, cheaper, and less painfully than anything else will. You must have some means of tracking the names, addresses, and phone numbers of all participants in your activities. Staff should also be alerted to the critical importance of witnesses and be trained to look for opportunities to obtain names and phone numbers of independent persons such as private boaters who might have seen the accident.
You must use a properly drafted liability release form. The old adage that "they aren't worth the paper they are printed on" may have been true in the eighties, but it is no longer the case. The courts are increasingly supportive of the doctrine of the Express (written) Assumption of Risk. Part of the value of release forms lies in the fact that they may or may not be enforceable. The mere threat that a given release may work in a given situation is sometimes enough to encourage the litigation attorney in a frivolous cause of action (personal injury lawsuit), to advise his/her client to take the excess medical benefit offered by your liability insurance policy and be happy. Do they really want to spend the time and the money to find out if the release will or will not be upheld? Often times the answer is no.
It seems that obtaining general liability insurance should be a cornerstone of any risk management strategy. However, contrary to what most attorneys and all insurance agents will tell you, buying a huge liability insurance policy does not necessarily provide you with more protection. This is a case where less is truly more. The more money you put out there at the end of the rainbow, the more goofballs you're going to have looking for it. Huge liability limits, and I'm talking about a million dollars or more, encourage litigation. The rub comes when you are required to have liability insurance in order to get a government agency permit from the Forest Service or the Park Service and they require huge limits. Purchase the minimum required, do good risk management, be a pro, and you should be ok. The courts look at the facts of any suit and determine if the outfitter met the standard of care and determine if the accident was due to inherent risks.
The judicial system got terribly bogged down in the eighties with frivolous litigation and they started telling the ambulance chasers to take a hike in the nineties. Today, if you adhere to the prevailing professional practices of the river industry and somebody gets hurt due to inherent risks, you are defendable, and should insist on an aggressive defense from your liability insurance provider.
These risk management tools and strategies are easy to develop and easy to implement. Utilizing them is important for many reasons. The fear of litigation alone is not a good enough reason to do anything. If a tool does not serve the larger purpose of providing safer, better organized, less problematic programming then it's is not worth doing.
The bottom line must always be to do everything possible to reduce the likelihood of humane pain and suffering. Having better warned and informed participants should be a goal of all outfitters.
Safety talks, activity orientations, carefully drafted literature, and liability release forms all speak to this goal. Staff trained in first aid and emergency planning helps the outfitter take care of people when the unfortunate does occur. The secondary benefit of strengthening the outfitter's position when faced with a frivolous lawsuit is just a welcome bonus for doing the right thing!