Minimizing Liability Exposure in Recreational Programs

Article & Photos Copyright 2011 Ron Watters
Contact for Use Permissions – Free for Non-profit Uses

If you’re an outdoor club leader, a guide or outfitter,  or if you’re involved in recreational programs of some form, the specter of liability is always there, lurking about in the shadows.   You’re never really quite comfortable, are you?  You’re always thinking:  what if?  What if something goes wrong?

So we prepare ourselves.  We have liability released forms.  We prepare for our activities and programs carefully.  We read up on ways to minimizing our exposure, and we try to be safe as we can.  All that is pretty standard stuff.

Much has been written about it, but there’s one area of liability that’s overlooked in liability literature – and, often, it’s the most important.  And that is:  what do you do after an accident occurs?

Here is a list of several suggestions on things that you should do during the minutes, hours and days before and after an accident:

During the Activity:

  • Develop relationships with participants: notice them, recognize them, respond to them.
  • Make friends.  Friends are less likely to sue.
  • Praise participants for being safe.
  • The expectations of a leader play an important role in how participants conduct themselves.  By your words, and your actions, make it known that you want them to be safe – and that you need their help in keeping things safe.  Have them point out to you or to others when they see something unsafe.

After an Accident Occurs:

  • Document what people say immediately after an accident.  Write it down. Many time they are self-accusing at first.  A few lessons from Disneyland’s liability policy are a case in point. “Normally, sympathy-evoking cases,” according to an article in Time, “are prized by personal-injury lawyers, who usually win a healthy majority of  their suits–and collect a third of the winnings.  But even the most combative attorneys arc inclined to shake their heads when the defendant is Walt Disney Productions. Against the huge entertainment complex personal-injury specialists arc hardly ever victorious.” One of Disney’s techniques as noted in the Time article is to have employees write down any comments made by the injured party. (“I should have looked where I was going.  How stupid of me.”) Such comments can make the difference in court.
  •  If you saw an accident, write down what you observed. If you did not see it, indicate, “Bill stated,” etc.  If what you saw differs from other participants, so indicate.  Do not include conjecture or possibility, write down only facts you saw or quote comments you hear.
  •  Note who is involved in different aspects of the accident. Include names of those who offer, direct and give first aid.  Be sure to write down any witnesses, employees, or bystanders, including names, addresses and phone numbers. These people are extremely important if a suit is brought.
  •  If an injury appears serious, it may be prudent  to ask for written statements by witnesses.
  •  Remember that everything you are told is important. Members of a party, after telling the initial version of how an accident occurred, often tell an altered version later on.
  •  If at the time of the incident, you think a picture of the location and the conditions which illustrate safety measures taken by the group would help document the accident, take
  • Take whatever photos necessary.  Photos taken days or weeks after the accident may not be allowed.
  •  If there is any doubt of the injury, any doubt whatsoever, make sure the victim is taken to a hospital or checked out by a doctor.
  •  If you are not on the trip, put together a report of the accident as soon as possible while facts are still fresh in everyone’s mind. Don’t make any accusations in a report, just record facts.  If you think that a mistake was made by an outdoor employee, take whatever actions are appropriate with the employee but never state your opinion to other people or on paper.  If the case goes to court, the burden of proof rests on the plaintiff to prove that an employee or a club leader was at fault.  Since you are the potential defendant, any statements you opinioned can prejudice your program’s defense.
  • If the victim must stay in the hospital, be a good friend.  Provide support  and comfort.  Visit him regularly.
  •  In a serious accident, talk to the nearest relatives.  Keep them updated on  his/her condition, and help and comfort them as much as possible.  The same  is of greater importance in the case of a death.  Do everything possible to  provide to support and assistance to the relatives.  If you go out of your way  to help, they will be less likely to bring a suit.  Many suits would not even  come to court had the responsible people simply taken time to be  compassionate and caring.

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