Trip Leading & LiabilityTrip Leading & LiabilityPeter Gowen

Potential Trip LiabilityPotential 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.

Legal Basis for Potential Legal Legal Basis for Potential Legal LiabilityLiability

Liability in tort

TortTort

A tort is (civil) liability of one to another outside of a contractual agreement

Types of TortsTypes 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)

What is Negligence?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

Elements of A Negligence Elements of A Negligence ClaimClaim1.Duty of care owed by defendant to

plaintiff2.   Failure to meet that duty3.The failure to meet the duty is

PROXIMATE CAUSE of damage or injury

4. Actual damage or injury suffered by plaintiff

Negligence Example: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.

Analysis: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.

AnalysisAnalysis

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

Gross NegligenceGross 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.

Willful and Wanton ConductWillful and Wanton Conduct

Intentional conduct with grave probability of serious damage ignored, or intentional conduct callously inflicting damage or injury

Public Policy behind Negligence Public Policy behind Negligence LiabilityLiability 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.

Negligence Cases Negligence Cases How are they decided?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

What is Assumption of Risk?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 conductCan be implied –

– Plaintiff clearly knew and understood the risks involved and still proceeded with known risk

Federal "Federal "VolunteerVolunteer Protection Protection Act of 1997“ Act of 1997“ 42 USC 14504 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

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Volunteer (Fed Act Definition)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.

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VolunteerVolunteer Service Act (State) 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

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Statutory ImmunityStatutory 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

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Potential Tort LiabilityPotential Tort LiabilityLegal significance to CMC LeadersLegal 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.

CMC Liability CoverageCMC 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)

Personal Liability CoveragePersonal Liability Coverage

Homeowners policy probably affords some protection against ordinary negligence claims up to limits of the policy

Additional "Umbrella" coverage can be obtained

Avoiding Legal LiabilityAvoiding Legal Liability

Act prudently under all circumstances Learn and understand prudent standards for

trip leading by taking this seminar and refreshing your knowledge periodically

Additional TopicsAdditional Topics

Inclusiveness– Do not discriminate on the basis of:

RaceReligionCountry of OriginGenderAnything Else Except:

– SAFETY RELATED MATTERS – NECESSARY SKILLS

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Additional TopicsAdditional 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

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Additional TopicsAdditional 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-consumeErr 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

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Bottom Line 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!

QUESTIONSQUESTIONS ??????

((I am willing to take questions off line as well)I am willing to take questions off line as well)

303-494-5420303-494-5420PJGowen@comcast.netPJGowen@comcast.net

DisclaimerDisclaimer

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