Rocky Mountain Lift Association 2009: Risk Management: Understanding the Big Picture and Conveying...

Risk ManagementRisk ManagementUnderstanding the Big Picture and Conveying it to Your Staff will Mitigate Exposure

Understanding the Big Picture and Conveying it to Your Staff will Mitigate Exposure

DisclaimerDisclaimer

All legal advice by it’s very nature is subject to change and the laws of each state. All legal advice requires a

review by your local attorney.

RealityReality

• No matter what we learn here a judge can change it.

• By the time we get done with the conference a judge has probably changed it.

• If you are really bad, you are probably going to lose

James H. Moss, J.D.James H. Moss, J.D.

• OSU Environmental Interpretation• Capital Law School, J.D.• 500 Clients in Outdoor Recreation

Field– Individuals to Organizations– Concessionaires & Permittees– Manufactures to Retailers

Trials (in the past)Trials (in the past)

• Whitewater Rafting Companies• Snow Mobiles• Ropes Course• Canoe Liveries• Climbing Gyms• Land owners

Adjunct InstructorAdjunct Instructor

Ski Area Operations Risk Management

Author: Rec-Law.blogspot.comAuthor: Rec-Law.blogspot.com

Member of UIAA Safety CommitteeMember of UIAA Safety Committee

• Union Internationale Des Associations D’Alpinisme (International Mountaineering and Climbing Federation)– European Union Organization creating

standards for Rock Climbing, Mountaineering, Ice Climbing and Ski Mountaineering equipment

Professional ResponsibilityProfessional Responsibility

• My job to inform• Your job to figure out what you want

to do with it• Your job on how to integrate with

your Risk Management Program, Your Insurance and Your Legal Counsel

Risk ManagementRisk ManagementUnderstanding the Big Picture and Conveying it to Your Staff will Mitigate Exposure

Understanding the Big Picture and Conveying it to Your Staff will Mitigate Exposure

Risk ManagementRisk Management

Risk Management is not reactive

Risk Management to be effective is pro-active

Reactive Risk ManagementReactive Risk Management

•Deals with–Claims–Litigation–Angry guests–Attorneys & Litigation

Pro-active Risk ManagementPro-active Risk Management

•Helps Guests–Understand–Heal–Come back–Leave Happy

Anyone can be Pro-active Risk ManagementAnyone can be Pro-active Risk Management

•Anyone can Help Guests–Understand–Heal–Come back–Leave Happy

Risk ManagementRisk Management

• In advance• It is not

–Disaster Management

When you manageWhen you manage

• You keep it from getting out of control

• You keep it from going wrong• You keep it from screwing up• You keep it from becoming a

problem.

Why does an employee need to understand risk management

Why does an employee need to understand risk management

• Hierarchy of mistakes/ problems that result in accidents

• Those mistakes also lead to the emotional issues that create lawsuits

Argument

with

Spouse

Bad Day on the SlopesBad Day on the Slopes

Felt

Breakfast

was $$

Argument

with

Spouse

Bad Day on the SlopesBad Day on the Slopes

Felt

Breakfast

was $$

Argument

with

Spouse

Bad Day on the SlopesBad Day on the Slopes

Binding

Set

Wrong

Felt

Breakfast

was $$

Argument

with

Spouse

Got on

Wrong

Run & Fell

Hard

Bad Day on the SlopesBad Day on the Slopes

Binding

Set

Wrong

Fall

Unloading

Lift

Felt

Breakfast

was $$

Argument

with

Spouse

Got on

Wrong

Run & Fell

Hard

Bad Day on the SlopesBad Day on the Slopes

Binding

Set

Wrong

Fall

Unloading

Lift

Lawsuit

Felt

Breakfast

was $$

Argument

with

Spouse

Got on

Wrong

Run & Fell

Hard

Bad Day on the SlopesBad Day on the Slopes

Binding

Set

Wrong

Fall

Unloading

Lift

Lawsuit

Felt

Breakfast

was $$

Argument

with

Spouse

Got on

Wrong

Run & Fell

Hard

Bad Day on the SlopesBad Day on the Slopes

Binding

Set

Wrong

It is not one thing, it i

s always many

It is the thing that It is the thing that

• Makes them the maddest• Last the longest• Cost more than they want

Bad Day on the SlopesBad Day on the Slopes

The series of “problems can occur post accident also.

FallUnloading

Lift

Bad Day on the Slopes

FallUnloading

Lift

Clinic Busy20 Min

Till Seen

Bad Day on the Slopes

FallUnloading

Lift

Clinic Busy20 Min

Till Seen

TransportedTo

Denver

Bad Day on the Slopes

FallUnloading

Lift

Clinic Busy20 Min

Till Seen

TransportedTo

Denver CellPhoneLeft inRoom

Bad Day on the Slopes

Can’t Tell Wife how to Find him or get him back

to Resort

FallUnloading

Lift

Clinic Busy20 Min

Till Seen

TransportedTo

Denver CellPhoneLeft inRoom

Bad Day on the Slopes

Can’t Tell Wife how to Find him or get him back

to Resort

FallUnloading

Lift

Clinic Busy20 Min

Till Seen

TransportedTo

Denver CellPhoneLeft inRoom

Lawsuit

Bad Day on the Slopes

Happy Guest Mad Guest

Returning Guest Plaintiff

FallUnloading

Lift

Clinic Busy20 Min

Till Seen

TransportedTo

Denver

CellPhoneLeft inRoom

Can’tCall

Happy Guest Mad Guest

Returning Guest Plaintiff

FallUnloading

Lift

Clinic Busy20 Min

Till Seen

TransportedTo

Denver

CellPhoneLeft inRoom

Can’tCall

Happy GuestReturning Guest

FallUnloading

Lift

Clinic Busy20 Min

Till Seen

TransportedTo

Denver

CellPhoneLeft inRoom

Can’tCall

Good Employee Experience

How Do You Deal with These IssuesHow Do You Deal with These Issues

1. Educate Your Employees1. Educate Your Employees

How can your employees stop litigationHow can your employees stop litigation

Your Employees Must

• Know the law• Understand risk management• Understand Customer service• Be customer service

Colorado Skier Safety Act is EasyColorado Skier Safety Act is Easy

• If your employees understand the Act

– They can answer questions without fear

– They can help guests understand the issues

– Employees feel more comfortable dealing with guests

ExampleExample

• Guest is angry because of “hit and run” accident

• Your employee is first on the scene – did not witness the accident

• Guest is angry at employee for not capturing/arresting person who hit him

Employee is in situation where more knowledge would provide more relief for guest than “what?” “huh?” and sorry.

Knowledge of the lawKnowledge of the law

• CSSA states it is not the responsibility of the resort to capture catch “hit and runs”

• Illegal for employee (unless witnessed) to do anything

• Most resort can do is yank lift ticket• Employee can radio down hill with good

description• Help is on the way

Employee with knowledgeEmployee with knowledge

• Understand anger of guest• Listen and respond properly• Honestly answer questions rather

than fending off questions or dodging questions

• Guest will realize employee did the legal thing, the right thing

Knowledge of the CSSA Means?Knowledge of the CSSA Means?

• Inherent dangers and risks of skiing" • Duties of passengers• Duties of operators – signs• Duties of ski area operators - signs and notices

required for skiers' information• WARNING – Under Colorado Law• Each skier shall stay clear of snow-grooming

equipment,….• Before beginning to ski from a stationary

position or before entering a ski slope or trail from the side…..

Knowledge of the CSSA Means?Knowledge of the CSSA Means?

• No person shall …. while such person's ability to do so is impaired by the consumption of alcohol or by the use of any controlled substance

• No skier involved in a collision with another skier ….• All snowmobiles ….• The ski area operator, upon finding a person skiing in a

careless and reckless manner, may revoke ….• The ski area operator shall mark hydrants, water pipes,

and all other man-made structures ….

Employees won’t just pass the BuckEmployees won’t just pass the Buck

If they understand the CSSA they can be effectiveIf they understand the CSSA they can be effective

WhyWhy

• Guests know “parts” of the CSSA–Usually the wrong parts

• Your employees need self confidence to deal with half-knowledge–Knowledge inspires confidence

How does more education & training help you?How does more education & training help you?

• If an employee understands why– it is easier to do

• If an employee understands the results– it is easier to do

• If an employee can understand the reward– it is easier to do

The more you employee understands the law and risk managementThe more you employee understands the law and risk management

• The easier it is for your employee to get the “job” done

• The more effective your employee• The greater the chances your

employee will stick around or move up

Back to Bad Day IBack to Bad Day IA knowledgeable employee canA knowledgeable employee can

Solving the problem at its source is more effectiveSolving the problem at its source is more effective

• Correct the binding problem• Assist off the wrong trail• Argument with Spouse (If you have a

solution, let us all know!)• Breakfast, relay the concerns, get a

name & contact info

If Nothing Else Just Listen

And if necessary answer with a correct answer

And if necessary answer with a correct answer

How Do You Deal with These IssuesHow Do You Deal with These Issues

2. Empower your employees2. Empower your employees

If an Employee is ComfortableIf an Employee is Comfortable

• They are more likely to act• They will act in a positive

manner• They will solve the problems

Example: Ski PatrolExample: Ski Patrol

I Spoke at the Annual Ski Patrol Training meeting

I had 9 months working with the patrol

I simply told them to solve the problem and I would pay for it

I wrote one check that year for $100

because a patroller told me too……

The Patrollers KnewThe Patrollers Knew

• They had the Power to Act• They knew I was behind them• They knew no matter what I would

back them up

And I did and they did

An Employee whoAn Employee who

• Knows what they are to do• Knows how to react• Knows the issues

Can solve problems before they get to litigation

How Do You Deal with These IssuesHow Do You Deal with These Issues

3. Educate, Train and Prepare3. Educate, Train and Prepare

How do you get Education & TrainingHow do you get Education & Training

• Attend your conferences• Attend in-house training• Attend Outside training

ConferencesConferences

At Conferences You & Employees learn

• New Ideas• Where is the standard• What is everyone else doing

RMLA is invaluableRMLA is invaluable

• You Learn–new techniques–You Learn bad techniques–You Learn what works and what

doesn’t work–Share ideas–Understand where things are going

In-house trainingIn-house training

• Completes OSHA requirements• Provides for feedback• Keeps everyone on the same page

Inside or Outside TrainersInside or Outside Trainers

• You can teach your staff

• Hire the manufacturers of you equipment– Make it part of the purchase

• Not just how to when purchased but continual

• Hire Outside Trainers

In-house trainingIn-house training

• 15 minutes a week• Latest problems

– Knowledge shared rather than constantly asking you

• Assign an employee something to teach– You Teach something you learn it

• You all learn it

Outside TrainingOutside Training

Ski Area Operations Risk Management

How Does CMC SAO Risk Management Work

How Does CMC SAO Risk Management Work

ClassroomDiscussion

Weeks Lessons

TextReading

Issues toBe

Covered

CaseLaw

OutsideReading

Classroom

ModeratedStudent

Discussions

Weeks Lessons

TextReading

Issues toBe

Covered

CaseLaw

OutsideReading

Online Class

ExampleExample

Issues to be CoveredIssues to be Covered

• Week 7 Legal Defenses– Assumption of Risk – Contributory Negligence – Releases/Waivers/Covenants not to

sue – Read from the Book: – Releases– Other Issues That Assist in a

Defense– Legal Defense Clauses

Outside Reading: Moss MaximOutside Reading: Moss Maxim

7 Mistakes Made by People who are called Defendant

1. Hire and retain Uncaring Employees

2. Failing Know Your Customers and why they are buying from you.

3. Failing to Treat Your Customers the Way They Want to Be Treated:

4. Examining the problem from Your Perspective

5. Placing a ridiculous value on principles and pride. Principles & Pride Goethe Before a Lawsuit

6. Never know Why you are being sued

7. Forgetting What Your Mother Taught You© James H. Moss 2003

A Victim is:A Victim is:

• Anyone who was bleeding, unconscious or in pain• Anyone related to the above• Anyone who was with the above• Anyone who saw any blood or pain• Any guest who heard about the incident• All Employees• Outside sources who responded to the incident

Remember: A Victim was originally a guest of your business 

© James H. Moss 2002

Chapter 14: Specific Activity Risks Chapter 14: Specific Activity Risks

• Specific Occupational Risks– Indoor Climbing Walls– Instructional Programs– Mountaineering– Retail Rental Programs– Rock Climbing– Whitewater Rafting

Chapter 15: Skiing and Ski AreasChapter 15: Skiing and Ski Areas

• Downhill Skiing– Ski Rental Programs– Tubing Hills

Text ReadingText Reading

SKIING AND SKI AREAS

Skiing has been a commercial operation since the thirties and had its first lawsuit in the early 1950’s (Wright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524). Because of the length of time skiing has been a popular sport, the size and number of people skiing, the severity of the accidents and the number of accidents that occur, skiing has a long history of claims and litigation.

Why the lawsuits in skiingMost recreational activities are judged against all other activities to determine an activities level of danger. That level of danger is also evaluated against the need of the participant to engage in the activity. There is no need to ski, or do any other recreational activity from a legal perspective. Need is used to identify such things as food, warmth, electricity, public transportation.

Case Law StudiedCase Law Studied

Bayer v. Crested Butte Mountain Resort

, 960 P.2d 70 (Colo. 1998)

Highest standard of care is owed to people riding the lift.

Online classOnline class

• Discussion: The Colorado Skier Safety act is the most important legal issue for Colorado Ski Areas. The act requires the resorts to do some things and skiers to do some things. Discuss whether you think the act protects the Colorado Ski Areas or skiers? What parts of the act protect the skier? What parts protect the ski area?

Online DiscussionOnline Discussion

Find another states ski safety act and tell us if that act is better protection for the ski areas than Colorado's?

Other ResourcesOther Resources

• NSAA Safety Source Book

Additional Case Law to ReadAdditional Case Law to Read

• Pizza v. Wolf Creek Ski Development Corp., 711 P.2d 671 (Colo. 1985)

• Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991)

SAO teaches Employees to Stay CurrentSAO teaches Employees to Stay Current

• Current in the Risk Management Issues & Law

• Current in Insurance Issues• Current in Techniques• Current in Equipment

Have your employees enroll in CMC’s SAO Program

Have your employees enroll in CMC’s SAO Program

SAO 110 Risk Management!!!!SAO 110 Risk Management!!!!

Additional BenefitsAdditional Benefits

• Reports are written correctly• Post incident reviews are easier• Testimony if needed is done

correctly• Happy Guests don’t sue

Reports are written correctlyReports are written correctly

• Only Facts are written down• Knowledge makes remembering

easier• No opinions are provided

– That can later lead to problems

Post incident reviews are easierPost incident reviews are easier

• Either with you or Risk Management– Exact statements can be

remembered because of the training received

– Specific issues asked will be remembered because specific answers were given

Testimony if needed is done correctlyTestimony if needed is done correctly

• If in a Deposition or on the Stand– No worry because employee

understood the law and provided good info to the guest

– No snakebites because reports and reviews post incident were done correctly

Happy Guests don’t sueHappy Guests don’t sue

• If the guests questions are answered they have no reason to be angry– It angers guests when they have to deal with a

dozen people to get answers– It angers guests when they can’t get an answer– It angers guests when the ski area does not want

to answer questions

ExampleExample

• You are at work and you get a call from a spouse, your young child was injured at summer camp

• You rush home, pick up spouse and rush to hospital. Child is OK

• You ask child what happened• Child says I don’t know, I was playing and then

I got hurt

What HappenedWhat Happened

• You ask the camp counselor that is with child at the hospital and their response is “I don’t know” I wasn’t there.

• You are told if you want an answer you have to send a letter to the risk manager describing the incident with the date and then the risk manager will send you any reports

Take the Same Exact ScenarioTake the Same Exact Scenario

• But replace Camp with Ski Area• Replace I was playing with I was

riding the lift

At what point are you going to go nuts?At what point are you going to go nuts?

• Do you believe any parent will not go to hell and back to find out what happened to their child?

• How mad do you think that will make a parent?

Or maybe, at what point are you going to get mad and ask for help in

finding out – help meaning a lawyer?

VersusVersus

• Based on what the other kids said, they were running around after breakfast and he tripped on a tree trunk

• Based on what the other people said behind him on the lift, the kids were fooling around on the lift as they were getting off and he slid off before the unloading zone

An Educated EmployeeAn Educated Employee

• Does not instill fear in Risk Management in their ability to answer questions– Or create a lawsuit

Bonus RoundBonus Round

If you have a fire at your resort on USFS Land who is in charge?

If you have a fire at your resort on USFS Land who is in charge?

Probably A Graduate of SAO 110Probably A Graduate of SAO 110

Not the GM

Not the employee’s bosses

According to USFS the person with the highest level of ICS Training is in charge

Graduates of SAO 110 are ICS Level 100Graduates of SAO 110 are ICS Level 100

If there are no other ICS trained people at the scene, the highest level of ICS level who is on the scene first is in charge of the scene

ICSICS

• Incident Command System– Is a standardized, on-scene, all-hazard

incident management concept. – Allows its users to adopt an integrated

organizational structure to match the complexities and demands of single or multiple incidents without being hindered by jurisdictional boundaries.

Graduates of SAO 110Graduates of SAO 110

• Have completed ICS 100– The first level of ICS training

• This training is necessary according to the USFS to be part of the incident and in some cases receive information other than press releases about the incident

Don’t WorryDon’t Worry

They are also taught that exercising their ICS 100 incorrectly may make them an un-employed person in charge of a fire!

Questions?Questions?

Thank you!Thank you!