By Leah Corrigan, Esq., (published in the America Outdoors Association summer quarterly)
Outfitters and guides rightfully place a high premium on the concept of personal responsibility. Perhaps as a result of this fundamental value, outfitters also tend to dismiss people who sue as greedy, out to make a quick buck, or lacking in personal responsibility. This misconception about WHY people sue drives certain fundamental risk management errors.
The person who felt they were uninformed about the type or level of risk when an accident occurs is the person who will consider a lawsuit.
How we talk about and treat the concepts of inherent risk, and assumption of that risk, when communicating with our clients and the recreating public is important. Fundamentally, outfitters and guides understand that the reason outdoor adventures provide a valuable experience to clients is partially because of the presence of risk in the recreational activity. The risk in an outdoor adventure is in large measure what makes the activity fun and exciting, and the experience worth paying for.
The primary reason that outfitters and guides can make a living facilitating outdoor adventures for clients is because they understand the risks of the activity and how to mitigate those risks. Outfitters also understand that not all risks can be effectively controlled and mistakes can always be made. Empowering your clients with that knowledge, and letting them make an informed decision to assume those risks, will make for a strong risk management program, and an appreciative and loyal client base.
Five basic steps to educate your customers about inherent risk:
1. Implement signage – in PLAIN ENGLISH – indicating that your adventure or recreational activity has a certain level of inherent risk that you cannot completely control, and that their choice to participate is a choice to assume those risks. AVOID LAWYER SPEAK.
2. Train your guides and staff to be comfortable talking, both formally and informally, about the concept of inherent risk. Educating the recreating public that adventure cannot be had without inherent risk is critical to good risk management.
3. Explain in some detail what the inherent risks of your outdoor activity are, and provide customers with an opportunity to ask questions about the level of risk. Answer those questions openly and honestly.
4. Explain to clients during a safety talk or orientation session that, while your guides are professionals who do the best job they can, they are still humans and make mistakes. The risk of those mistakes is part of the inherent risk of the activity, and a risk the client is assuming.
5. Your liability release should contain a plain English preamble about inherent risk and assumption of risk, and should be written in language that normal people can understand. While a good release must contain certain legal elements, it doesn’t have to be written in legalese to be enforceable.
Implementing these steps will not only help you defend any claim or lawsuit. They will help you avoid getting sued in the first place, or having an unhappy customer who can paint your operation as unsafe in an internet review forum. Adventure and inherent risk are inextricably linked, and we all have a stake in helping our client base understand the risks they’re getting involved.