Reb Gregg Outdoor Liability Law: Writings

Writings

Fundamental Legal Issues
By Charles R. Gregg

1. Perspective

a. While the subject is legal, the real issue is operational – running a quality program.
b. A quality program is one which:

1) does what is says it is going to do regarding operations and outcomes
2) manages its risks as a reasonable professional would in the same or similar circumstances.

2. The value of risk. The risk of risk.

a) We are willing to tolerate a sprained ankle to achieve the positive values of the experience. Can we similarly justify a death? Two deaths?
b) Because folks can get hurt, and make claims, and sue, we need to understand the legal implications of what we do or fail to do.

3. A brief risk management strategy – analyze, manage, inform

4. Issues in protecting students and clients

Disclosures, understanding the environment, emergency action plans, established policies and practices, good gear, good records, good administrative support, well selected and supervised staff and participants.

5. Issues in protecting the program

A quality program a risk management plan, an understanding of your own policies and the industry’s practices and standards, and applicable laws; written contracts, where they are needed; adequate insurance; allocation of possible liabilities (releases and indemnities); wise use of professionals; wise selection of business entity

6. Contracts

a. Elements of a binding contract – clarity, no coercion, etc.
b. How formed - implied and expressed, oral and written
c. How broken (failure to perform as promised)
d. Damages (the loss of the benefit of the bargain)
e. Defenses to a claim of breach – missing element, against public policy, etc.

7. Negligence

a. Elements – duty, breach, loss caused by the breach
b. How duty can be eliminated, reduced or enlarged – special relationships, active sports doctrine, special statutes, etc.

8. Defenses to claims of negligence

Inherency of the loss causing risk, inherency and assumption of the risk of negligence in active sports (Primary Assumption of Risk), Secondary Assumption of the Risk, release of the claim, etc.

9. Releases

Elements: requirements of a contract; identify who is released and who is releasing; describe activities and risks and identify risks as inherent; scope of the release (negligence); indemnities; venue, applicable law, other.

10. Other defenses to claims of negligence

Immunities, special statute, volunteer status

11. Take-aways

a) Analyze and eliminate from your program the activities, places and people that present risks that you cannot manage with confidence.
b) Examine the descriptions of your activities and risks in your promotional and other materials. If there is a reasonable possibility of something happening that will surprise your clients, enlarge your descriptions to include that thing (or those things).
c) Have your Participant Agreement reviewed by competent counsel to determine that you have covered adequately at least the following: a description of the activities and risks of your program; an acknowledgement of the risks as inherent: an assumption of the risks; a release of you and your organization from claims, including for negligence; an indemnification of you and your organization against claims of third persons arising from the client’s participation; and a provision that fixes the place of and the law to be applied to any suit brought against you or your organization.

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