Reb Gregg Outdoor Liability Law: Writings

Writings

Breach of Contract and Misrepresentations
by Charles R. Gregg

Your catalogues, course descriptions and other writings may be considered contracts with your clients - agreements that you will deliver as described (promised), and that no material information (that is, material to the client’s decision whether or not to enroll) has been omitted. Such “Contracts” can be made in the field, so caution staff members against enlarging upon or modifying representations that have been mad in course literature which has been the basis of the student’s enrollment.

A claim of “breach of contract” is a complaint that you did not deliver the experience that you said you would. This “contract” has its basis certainly in the written text - you must do what you say you are going to do. Arguably, it also has a basis in photographs which are presumed to truthfully depict certain circumstances.

A healthy tension will always exist between a desire to market effectively and a hopefully equally strong desire to accurately inform the client about the experience. The guidelines are simple - tell the truth, and disclose those matters which a reasonable consumer of your service might want to know. This test of “materiality” can be applied to, for example, political unrest or a current history of banditry in a foreign country; foreign laws and unusual animals, plants, and diseases; the expected degree of supervision; familiarity with the location of the activity; the rigors of a particular activity; more intimate contacts between the sexes than the student might expect (coed tenting, for example); weight of the packs, hiking distances, terrain, environmental issues and the like. Much of this information is offered for the first time in a Participant Agreement, and that may be adequate. It would be preferable, however, to include such descriptions in the program’s main catalogue, and certainly they should appear in the more detailed descriptions of the specific activities, which might follow an inquiry by a potential client.

Fraud (a representation which you knew was not true when you made it), negligent (careless) representations and failure to disclose material information may, under the laws of many states, result in punitive, or extra, damages against a program found guilty of such conduct.

Equally significant is an argument, available in most states, that the “deal” between the program and the student was fraudulently induced by a program’s failure to disclose material information, or the program’s misrepresentation of certain facts. A fraudulent inducement claim may nullify the effect of agreements subsequently signed by the student and his or her parents - including a release or waiver of future claims.

Finally, consumer protection statutes of many states restrict the enforcement of release of liability for misrepresentations and omissions covered by those statutes. So, you may have an accident, what you consider to be an ironclad release, and a claim of material misrepresentations or omissions, and find that your release is thrown out of court.

While attention to conduct in the field which does not meet professional standards is certainly warranted and will continue to be the major focus of most program liability discussions, be mindful of this other area of potential liability - not doing what you say you are going to do, misrepresenting or failing to disclose a material aspect of the anticipated experience and, most threatening, a claim of fraud by deliberately misleading a client into believing something which you know is not true.

As always, consult with counsel in the jurisdiction whose laws will be applied to your program, regarding the points raised in this discussion.

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