Reb Gregg Outdoor Liability Law: Writings

Writings

The Smoking Gun
by Charles R. Gregg

Within limits of available storage space and staff time, the more written communication the better. The program can always edit or discard pursuant to a retention policy if the volume gets out of hand.

What do you do about a report from field staff which characterizes an activity, environment or person as negligent or dangerous? Suppose a staff member opines that certain equipment is a hazard, a fellow worker is behaving improperly, a site is dangerous, or a home stay parent or staff member has conducted himself in a way that exposes the program to liability.

The answer may be as obvious as you think.

You cannot ignore the information - as baseless, uninformed, hyperbolic or inflammatory as it may be. “Deep sixing” it is not an option. Similarly, editing is not wise, unless the edit is temporary only, while the mater is being investigated.

If, or when, the report goes into your records, it must be followed with something equally aggressive reflecting the same or greater degree of expertise and experience, and responding in a way that either eliminates the described risk or authoritatively contradicts the reports.

Consultation with the author may clarify the matter, or produce a version which more correctly states what was intended. He or she may have said what was said without an understanding of the implications of some terms used too casually. Statements that a rock fall area is a “death zone,” or that continued use of a piece of equipment is “contrary to all reasonable industry standards,” or that a practice is unjustified or “negligence,” must be investigated both with respect to their true meaning, and their validity.

You should do nothing to discourage the reporting of circumstances in the field which may represent a danger to your clientele and liability to the program. The issues is what do you do when those reports come in. So: (1) encourage staff to report items they truly feel are problems; (2) train staff to report them objectively, without characterizations that may have unintended legal implications; (3) satisfy yourself that what is said was intended to be said (and consider having the author eliminate inappropriate characterizations) and (4) document a thoughtful and authoritative response - either from knowledge that already exists or after an investigation.

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