The legal duty of care we owe to our visitors and clients is to protect them from unreasonable risks of harm. A violation of this duty is negligence. And claims of negligence are by far the most common claims asserted against aerial adventure operations.
Not all risks are unreasonable. For example, we have no duty to protect a visitor from inherent risks—those risks that are such an integral part of an activity that, without them, the activity would lose its basic character and appeal. We have no duty to protect a patron from risks that they expressly assume. And we have no duty with respect to claims that have been released or waived.
That said, it’s essential to run an operation that keeps its promises and takes reasonable care of its visitors and clients.
In part 1 (“People, Places, and Things,” Summer 2019) we discussed generally the legal duty of care owed by operators, trainers, builders and inspectors of our challenge courses, zip lines, canopy tours, and aerial adventure parks. We focused on the role of human error.
The article described a number of incidents and court judgments implicating people—both operators and visitors—in failures occurring at our sites. Scenarios included collisions with landing platforms, persons stranded on zip lines, collisions on zip lines and with other elements, falls while moving from place to place at a site, misidentification of cables designed to carry participants, errors in attaching patrons to harnesses and other gear, and misjudging the participant’s suitability for an activity.
Places and Things
Here we consider other factors—places and things—and legal strategies for sorting out the ultimate responsibilities for a loss to which, inevitably, many factors have contributed. We will examine these other factors in the context of the categories of incidents described previously.
Design, construction, and product defects: Collisions and falls from a platform can be the result of design error. A failure to provide railings or anchoring devices, for example, to allow staff to successfully catch or, if necessary, reach beyond the edge of a platform to retrieve an incoming participant, is an error that could result in catastrophe. Other examples:
• “Hot” arrivals can be the result of a defect in the design or condition of a line or braking system.
• Collisions of riders on the line or at the receiving platform may result from a radio or other signal-system malfunction.
• Stalls on a line, resulting in collisions or traumatic suspensions above hazards, may reflect a design issue.
• Tree limbs on the line may reflect misjudgments about the location or design of a line, or failure to consult an arborist regularly.
• Traditional challenge courses and parks have confronted claims arising from the unauthorized and unsupervised use (read: trespassing) of elements, low and high—swinging logs and elevated walkways, swings and platforms. These losses might have been prevented by different access strategies that block unauthorized access. Where possible and prudent, fences, gates, and other measures must be in place to discourage access.
• The failure of brakes, pulleys, and cables, and of harnesses and other gear, including belaying and lowering mechanisms, may result from defects in their design and manufacture, or other failure to perform their intended function. Structures, including platforms and means of access to them, may be subject to the same errors of design, fitness, or installation.
Identification and warning: Terrain and environmental conditions can produce slips and falls while moving from place to place. Falling tree limbs and encounters with plants and animals might cause harm. Operators must mark areas that pose some danger.
Part 1 described instances of a participant or staff mistaking—and attaching to—cables or ropes used for rigging or support for lifelines or zip lines. Color coding, signage, and warnings can reduce the chances for error by both participants and staff.
Note that some issues involving terrain and structures may properly be the responsibility of a landowner who has leased the activity site to an operator, and not the operator itself.
Training and inspection: Many issues can be addressed through properly conducted trainings and inspections. An operator’s log of near misses and accidents helps to identify existing and potential problems. Third-party trainings and inspections are especially valuable for the purpose of identifying and addressing these problems, because qualified third parties bring a broader perspective and range of experience to the operation. In addition, a site’s operating policies and practices, regularly reviewed and refreshed, should address risk conditions, their avoidance, and correction.
Faced with these contingencies, prudent operators and vendors of products and services will use the legal tools at hand to protect themselves from claims arising from their errors and, importantly, from errors of others.
The protections are best achieved in formal contracts for services, in which the responsibilities of the product or service provider are clearly described—what is to be done and by whom, and who has what responsibility for a defect in the product or service. More specifically:
• Vendors must be clear about warranties and obligations to correct defects.
• Liability for a failure in a service or product may be conditioned on the operator’s adherence to standards in the industry.
• A smart vendor may require the operator to protect that vendor from future claims that do not directly relate to its product or service. Contractual indemnity and/or being added as an additional insured on the owner/operator’s liability policy accomplish such protection.
A trainer or inspector should be crystal clear about the scope of his or her work—what is (and is not) to be inspected, and who is (and is not) to be trained—and equally clear about their responsibility for future claims. The inspector/trainer may choose to deny (to the extent allowed by applicable law) legal liability for future claims arising from the services provided.
Another approach—reflective of an early challenge course ethic, perhaps—is a service provider’s agreement to accept responsibility for their errors, limited only to those losses that arise solely and directly from the failure of the service, and provided the complaining party has complied with industry standards, including regular inspections and trainings—all of which must be documented, of course.
State laws vary in the relief available from the types of liabilities described here, including for construction and product errors. Operators, and service and product providers, should consult with local legal counsel and an insurance expert regarding steps available to protect themselves from liabilities for their own errors and for the errors of others.
Among the tools available to reduce legal liability are waivers, signs, warnings in print and online, insurance, training and inspections, and contracts. The availability and value of each, and the laws, ordinances, and rules that apply to them, vary from state to state, and sometimes even from town to town. Select the proper tools for your site, and you’ll be on the path to reducing your legal liabilities.
Special thanks to Bob Ryan of Project Adventure for helping gather scenarios and lawsuits for this article series.