Self-guided experiences, while their rewards are substantial, expose participants to challenges that are not the same as those of guided, and even moderately supervised, courses and tours. It follows, then, that the legal duty of care owed to participants on self-guided courses, and strategies for avoiding or shifting legal liability, are not the same as those associated with traditional courses. Anyone who operates a self-guided activity should be aware of the following considerations.
THE ISSUES
Obligations to visitors. First, a reminder of an operator’s legal obligations to visitors. An operator must keep its promises. This is basic contract law. Operators are expected to do what they say they will on their website and other publications, in signage, and during the on-site orientations for participants.
Duty of care. In addition, an operator owes a duty of care to its participants. In legal terms, this duty is commonly described as an obligation to deal with the visitor as a reasonable park operator would under the same or similar circumstances. The “same or similar circumstances” aspect of this definition is particularly pertinent when dealing with a claim arising from a self-guided experience.
A breach of the legal duty of care is negligence and, if found by a judge or jury, the operator must compensate an injured visitor if the negligence caused an injury or other loss.
Industry standards pertaining to the activity can be used to measure the reasonableness of an operator’s performance. State law may provide that the violation of an industry standard designed to protect a participant can be used by the complaining party as some evidence of negligence. A deviation from common practices, too, may be some evidence of negligence.
Limits to duty of care. An operator has no duty to protect a participant from the inherent risks of the activity—risks that are so much a part of the experience that, without them, the experience would lose its value and appeal.
Claims arising from athletic and sporting events, including activities on aerial tours, are particularly susceptible to an “inherency of the risk” defense. This may, in some circumstances, include even the carelessness of staff and other participants.
Further, an operator has no duty to protect a participant from risks that are knowingly assumed. Routinely, operators require participants to sign agreements whereby claims of loss are released, including claims of negligence (but not claims of recklessness or gross negligence).
RECENT CASES
A few recently settled cases shed light on duty of care and liability issues.
Suspension trauma. A woman on a self-guided course in a Kentucky cavern fell, twice, on an element consisting of two horizontal ladders. She was suspended from the second ladder, in her harness, for “five to eight minutes,” according to the court’s opinion. She lost consciousness during the rescue and later died at the hospital.
The estate presented evidence that her death was caused by “suspension trauma” resulting from her extended time hanging unsupported. The estate claimed further that the operator failed to exercise ordinary care in the operation of the course and failed to respond promptly to the emergency. The operator argued that the death was caused by a pre-existing health condition and by the participant’s own failure to exercise ordinary care.
The jury found the estate did not prove the operator’s failure to exercise proper care. (Bradley v. Louisville Mega Cavern, Court of Appeals, Kentucky, May 19, 2023).
Failure to brake properly. A 16-year-old suffered a permanent knee injury when he failed to properly brake at the end of a zip line. The Ohio court found no liability, because, it said, the child was engaged in a sporting activity with certain inherent risks, which included the failure to properly brake. (Thomas v. Chimera, Court of Appeals of Ohio, June 26, 2023).
DUTY AND LIABILITY
Duty and liability issues can arise from a number of circumstances, including a) the design and condition of the course, b) the training and performance of staff, and c) the preparation of the participants for the activity.
Course design. In designing the course and managing the risks of its operation, consideration must be given to the particular challenges of the self-guided aspects. For example, how much of the course can be monitored by staff, and quickly reached if circumstances require? Are there terrain features that might be hazardous to an unsupervised group, requiring some modification or elimination of routes between elements? Are participants able to determine if a line is clear before descending? Are landing platforms “user friendly”—not requiring special on-site directions or assistance? How will an emergency be communicated to staff?
Staff training. Staff must be trained for their unique roles in protecting the participants from unreasonable harm. This can become somewhat involved and detailed.
The ANSI/ACCT Canopy/Zip Line Tours Standards (March 2019) requirements include the use of equipment in accordance with the manufacturer’s instructions, the inspection and use of appropriate personal and group safety systems, and proper monitoring or supervising of participants and responding to participants as needed. Staff have a role in each of these requirements.
Further, section C.2.5 (Operating Standards, Staff Competencies, Self-Guided Courses) of ANSI/ACCT 2019 more particularly describes the obligations of the staff in monitoring and/or supervising, assessing, and responding. (“Monitor,” it appears from a chart at A.3.1, means that the staff member is not close enough to directly intervene.)
C.2.5.5 states that the monitoring and/or supervision shall be appropriate for the type of personal safety system employed and participant requirements as defined by the manufacturer or other qualified person. It then describes six safety systems (auto-locking lanyard connections, and five others) along with four related supervision “strategies.” (E.g., Strategy A: “The monitor can physically intervene to ensure proper use of the System”; or C: “the monitor can communicate verbally”; or D: “the monitor can hear and properly respond to a call for assistance and provide that assistance.”) Finally, minimum supervision strategies are described, setting out, in graph form, the strategy appropriate for various age groups, depending on the safety systems in use.
SUPERVISING THE PARTICIPANTS
Risk management strategies of a reasonable operator must also address the unique needs of self-guided participants, who will navigate their way through the activity without the degree of staff supervision and intervention expected in the traditional course or tour. There are several strategies to consider.
Education. Aspects of the experience that a participant might not reasonably anticipate—the indirect-only involvement of staff, for example—must be prominent in descriptive materials and in the orientation, and reinforced by signage. The park’s release or visitor agreement must be explicit regarding the special characteristics of the self-guided tour. The law does not favor the assumption of, or release of, claims arising from conditions that a participant cannot reasonably have known or anticipated.
Instruction. Participants must understand the course and their responsibilities for managing its risks, including proper use of gear and the hazards of unsupervised adjustments or removal, the use of safety systems, and a reliable means of calling for help.
Orientation. Preparation of participants begins most importantly with an on-site orientation, during which critical aspects of the course, activities and equipment are discussed. The orientation must be serious in tone, not rushed, and provide ample opportunities for questions. The orientation must be conducted in such a manner that the visitor cannot reasonably claim that they were not given a vital piece of information and an opportunity to ask questions.
Evaluation. Heightened attention must be given to a participant’s qualifications, including height, weight, and maturity of judgment as they move among the elements. Are they clipping onto the proper cables? Are they prepared for the upcoming platform? Where is the accompanying adult?
THE BOTTOM LINE
The essential nature, and significant values, of self-guided parks and tours require new and enlarged risk management strategies for the operator and participants. Operators who comply with the applicable industry standards and follow the advice of experts, train their staff, and inform their participants accordingly, can reasonably expect to meet the legal duties of care owed to the people they serve, and will spend their days at the park and not in the courthouse.
Reb Gregg is a Houston-based attorney specializing in legal issues of outdoor adventure programming.
