Reb Gregg Outdoor Liability Law: Writings

Writings

The Lawyer’s Role, Post Accident
By Charles R. Gregg

If a lawyer is being used effectively in the life of an outdoor program, he or she regularly reviews the public presentation of that organization, its staffing and operating policies and practices, emergency response protocols, and, importantly, its post-accident philosophy, policies and procedures.

Dealing with serious injuries and death - the handling of other course participants, staff, families of the victim, and media – can cause tension between legal considerations and certain other values of the organization.

The commitment of the organization to the injured party and his family may affect the ultimate liability of the organization arising from the accident. Post-accident behavior of an organization - unreasonable or improper, uncooperative or too generous - can influence the outcome of a claim or a lawsuit.

Litigation reflects an adversarial relationship between the parties. Someone has been hurt and seeks compensation from someone who feels it either is not responsible for the loss or should not have to compensate to the extent demanded.

In the event of an injury almost every aspect of an organization’s operating policies and practices, qualifications of staff, representations made in marketing and other materials, and post-accident conduct (including statements of regret, apology, or anger) are fair game.

A grieving co-participant’s or staff member’s statement of fault can become evidence of an admission; an entry in a journal or log which indicates a contributing act or omission, becomes part of the evidence in the case. Without proper steps to preserve confidentiality, post-accident interviews, including therapeutic critical incident stress debriefs, can produce evidence of wrongdoing. It is easy to understand, therefore, an admonition from lawyers that the organization essentially “shut down” after an accident, saying nothing, offering nothing. Every move is orchestrated by trial counsel, usually appointed by an insurance carrier, with an eye to its implications at trial.

This approach may contradict instincts and values of the organization, which are more focused on the physical and emotional well-being of the injured person and her family. The organization, for example, coming from a strong cultural commitment to the student, may wish to bring the family to an injured student (or the site of a death); the organization might even invite the family to talk to willing co-participants or staff members. Official expressions of regret - rarely apology - might be issued to the media which can be subject to interpretation of an admission of some responsibility.

An organization may immediately convene an internal investigation whose findings might be protected from adversaries in a lawsuit by legal rules of evidence; but the organization may wish to commit, in advance, to share its results with the family. The organization might appoint an outside review team, and even offer the family the opportunity to suggest members of that team - with assurances that the results will be made known to the family. These accommodations have serious legal implications. The question, of course, if whether these implications are positive or negative.

The approach which the organization will take to post-accident relationships must be determined long in advance of the claim-producing incident. Policies and practices in this regard should be a part of the critical incident protocols of the organization. Those protocols should be the result of thoughtful discussions among staff, board members, legal counsel, representatives of the insurer, and other constituencies of the organization.

They should be clearly understood and written, and so embedded into the culture of the organization that they are implemented without question in the event of the serious incident. Some flexibility must be built into the policies, of course. Conduct or claims from an injured party or family which are unfair and mean spirited must be countered with firmness and the withholding of cooperation which might have led to a quicker and more satisfying resolution for both sides.

Money rarely is the primary goal of a victim or the family of a victim. If they consider the organization at fault you would expect a demand that expenses be recovered and perhaps some compensation for other factors; but primarily the family wants to know how the accident occurred, why it occurred and what steps will be taken to keep it from happening again. The family, in other words, wants meaning more than monetary compensation.

The priorities for the organization, too, are an understanding of what happened and why, so that it can take reasonable steps to prevent a reoccurrence. Usually the organization, unless faced with absolutely unwarranted claims or demands, will expect to provide some compensation. The willingness to compensate may exist whether or not the organization considers itself at fault. A willingness to do so is generated by the earliest formation of a relationship between the organization and the participant and his family, for the achievement of certain goals or expectations. This relationship is formed from marketing and promotional materials, through the application process, interviews or discussions regarding medical or other issues of suitability, and certainly continues importantly through relationships that are developed during the organization’s program. Again, except where there is an utter lack of reciprocity, understanding and cooperation, the organization may be wiling to share in the loss and pay dollars, erect a monument, organize a conference, or provide some other material and symbolic memorial to the event, and learn from it.

Of the several death and serious accidents involving clients, only a few have produced law suits. Others have been resolved through private negotiations between the parties, or mediation before a neutral third party.

Interestingly, although the organizations involved in these serious claims had confidence in the strength of their release of claims of negligence, that document was not a prominent part of negotiations or even the sometimes contentious mediation and pre-trial procedures. The parties were aware of its existence and acknowledged, to varying degrees, its validity, but proceeded, instead, to explore those issues which were shared by the claimant and the organization: how did this happen, how to keep it from happening again, and what would be fair compensation to the person injured. I can recall no instance - and there have been four or five significant matters - in which I feel the organization paid too much, or I learned subsequently of expressions of anger, disappointment or regret from injured parties or their families regarding the settlement.

The “let’s don’t to anything that we are not forced to do, and then only after a dog fight” approach is expensive, severely distracts staff and other constituencies, has at least the potential for damaging an organization’s reputation for fair and ethical dealing with its clients and students and, more often than not, simply delays what talented lawyers on both sides recognize early on as a reasonable and logical outcome of the dispute.

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