Trip Leading & Liability

1. Trip Leading & Liability Peter Gowen

2. Potential Trip Liability Why are we concerned with potential legal liability as trip leaders? If something goes wrong, injured parties (actually their lawyers) look for someone from whom to recover for damages.

3. Legal Basis for Potential Legal Liability • Liability in tort

4. Tort • A tort is (civil) liability of one to another outside of a contractual agreement

5. Types of Torts • Negligence - primary basis in CMC Leadership context • Gross negligence - secondary basis in CMC Leadership context • Intentional tort - battery can happen in a first aid context • Always Ask – Can I help you : Do not start first aid to anyone without their permission! • Possibly willful and wanton conduct (state of mind requirement) • Strict liability - not likely in CMC leadership context (usually imposed by statute)

6. What is Negligence? • An Act or omission which a reasonably prudent person would or would not do to avoid reasonably foreseeable harm to another, under the same or similar circumstances • When a person is harmed as a result of another’s negligent actions, although the harm was unintended

7. Elements of A Negligence Claim 1. Duty of care owed by defendant to plaintiff 2.   Failure to meet that duty 3. The failure to meet the duty is PROXIMATE CAUSE of damage or injury 4. Actual damage or injury suffered by plaintiff

8. Negligence Example: Trip leader makes a decision that is careless that leads to an accident, injuring a trip member - such as continuing on with a peak climb during a serious electrical storm.

9. Analysis: • Duty of Care- trip leader owes a duty of care to trip participants not to do something that could cause harm that is reasonably foreseeable to a trip participant. • When someone becomes a CMC trip leader, that person assumes a duty of care. • Failure to meet the duty • Continuing to hike in this fact situation clearly fails to meet that duty.

10. Analysis 3. Proximate Cause • If a trip participant gets hit by lightening after the leader continues with previous lightening strikes have occurred all around the area, the trip leader's failure to turn back is a logical proximate cause of the injury. 4.  Actual Damage. • Death or serious injury usually pretty apparent as damage. Subtle injury may be more difficult to prove

11. Gross Negligence Conduct so egregiously missing the duty of care so as to open up a whole new level of liability - possible punitive damages and loss of protection from many insurance policies.

12. Willful and Wanton Conduct Intentional conduct with grave probability of serious damage ignored, or intentional conduct callously inflicting damage or injury

13. Public Policy behind Negligence Liability • Society has a general interest in requiring people not injuring others in the conduct of social interactions. • Negligence liability is avoidable by acting as a reasonably prudent person would under the same or similar circumstances. • By avoiding acts that cause reasonably foreseeable harm to others, society as a whole is benefited. • The way to encourage people to avoid acts which cause reasonably foreseeable harm to others is to hold them liable for damages caused for those acts. • This is achieved by compensation (compensatory damages) that places the injured party in the position they would have been in had the injury not occurred.

14. Negligence Cases How are they decided? • Negligence is a mixed question of fact and law. • Cases are determined on a case by case basis by juries • Juries can be all over the map as to how they decide a particular case Different juries hearing the same case could frequently come to widely different results

15. What is Assumption of Risk? Assumption of Risk is an affirmative defense against a negligence claim. • Can be expressed- signed waiver of liability • Must be knowing and informed • Only works in absence of gross negligence or willful and wanton conduct • Can be implied – • Plaintiff clearly knew and understood the risks involved and still proceeded with known risk

16. Federal "Volunteer Protection Act of 1997“ 42 USC 14504 • Liability protection for volunteers • no volunteer of a nonprofit organization or governmental entity shall be liable for harm if- • (1) the volunteer was acting within the scope of the volunteer’s responsibilities in the nonprofit organization or governmental entity at the time of the act or omission; • (2) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer

17. Volunteer (Fed Act Definition) • The term “volunteer” means an individual performing services for a nonprofit organization or a governmental entity who does not receive— • (A) compensation (other than reasonable reimbursement or allowance for expenses actually incurred); or • (B) any other thing of value in lieu of compensation, in excess of $500 per year.

18. Volunteer Service Act (State) • Any volunteer shall be immune from civil liability in any action on the basis of any act or omission of a volunteer resulting in damage or injury if: • (I) The volunteer is immune from liability for the act or omission under the federal "Volunteer Protection Act of 1997", as from time to time may be amended, codified at 42 U.S.C. sec. 14501 et seq.; and • (II) The damage or injury was not caused by misconduct or other circumstances that would preclude immunity for such volunteer under the federal law CRS 13-21-115.5. (4)(a) -Volunteer Service Act

19. Statutory Immunity • Key Requirements: • No compensation • Good Faith • Absence of Gross Negligence, Willful or Reckless Misconduct, or a Conscious, Flagrant Indifference to rights of injured party

20. Potential Tort LiabilityLegal significance to CMC Leaders • Need to follow "REASONABLY PRUDENT PERSON " rule while leading trips  • If do not follow "REASONABLY PRUDENT PERSON " rule, potential exposure to legal liability. • Make sure member has signed Waiver of Liability. • Guests should not be allowed to participate in trip unless waiver has been signed Waiver of Liability. • (This waiver should work as a shield against ordinary negligence claims.) • Do NOT accept anything of value as compensation • Includes anything that can be construed as compensation for leading a trip • If you do, be prepared to accept a higher level of legal liability exposure than you would otherwise have.

21. CMC Liability Coverage • CMC State office carries liability insurance protection for ordinary negligence in the conduct of CMC trips • Limits of $1,000,000 per occurrence • Does not cover gross negligence or willful or wanton (no insurance policy will)

22. Personal Liability Coverage • Homeowners policy probably affords some protection against ordinary negligence claims up to limits of the policy • Additional "Umbrella" coverage can be obtained

23. Avoiding Legal Liability • Act prudently under all circumstances • Learn and understand prudent standards for trip leading by taking this seminar and refreshing your knowledge periodically

24. Additional Topics • Inclusiveness • Do not discriminate on the basis of: • Race • Religion • Country of Origin • Gender • Anything Else Except: • SAFETY RELATED MATTERS – NECESSARY SKILLS

25. Additional Topics • Sexual Harassment • Avoid Unwanted Sexual Advances • Do not abuse your Leadership Position • Assume Any Advances Unwelcome Unless Explicit Consent (Particularly at First Meeting) This is a completely (and easily) avoidable problem

26. Additional Topics • Alcohol - an issue of concern at State Level • No use on Day trips • If driving with others returning in car pool • Absolutely do not over-consume • Err on side of Caution • Non-drinkers in car may be concerned with any consumption • Be aware of this concern • Offer an opportunity for non-drinking driver

27. Bottom Line • Let's be careful out there!!! • No need to be big time paranoid about legal liability, but a little bit may be useful and may be just what the lawyer ordered! • The butt you save will likely include your own!

28. QUESTIONS ???(I am willing to take questions off line as well)303-494-5420PJGowen@comcast.net

29. Disclaimer This outline is intended only for broad, general information purposes and should not to be considered legal advice for any particular set of circumstances. The user is specifically advised to confer with appropriate legal counsel in any circumstance where there may be a specific question as to that person's legal rights and responsibilities under a given set of facts