Many disappointments and injuries in our industry arise from the inherent risks of an adventure. Some, however, are the result of someone’s carelessness or poor judgment. These incidents deserve our scrutiny and understanding, so that we may better protect our clients and better manage our legal liability.
This two-part series presents stories of injuries and other losses occurring on our challenge courses, zip lines, and canopy tours, and in our adventure and aerial parks. We’ll identify who and what might have contributed to the losses, and discuss strategies for reducing legal liability for them.
First, note that the “State of the Industry Report” in the Spring 2019 issue of this magazine presented valuable incident statistics for our industry’s 2018 operations. Among the findings pertinent to our discussion here was the recognition that finding and managing qualified staff is the top concern of operators.
Injuries, according the report, are “relatively uncommon”—more common in zip line and canopy tour programs, and less in ground-based experiential programs. A higher rate of near misses—incidents not resulting in injury—in aerial adventure courses is attributed to, possibly, more reliable reporting. The reported causes of injuries include slips and falls, pre-existing medical conditions, and staff and visitor error. In short, the cause of most incidents is people.
The following stories are drawn from actual incidents as reported in the news media, litigated in courts of law, and discussed with confidence, including at conferences, among practitioners, experts, and insurance representatives. All are believed to be accurate and valuable teaching opportunities. They reveal an array of people, places, and things that have disappointed and hurt customers and, in some circumstances, produced lawsuits.
DUTY OF CARE
Legal liability accrues most often when the provider of a service fails to meet the legal duty of care it owes to a client. That failure usually is asserted as negligence. The elements of a successful claim of negligence are:
1. a legal duty of care owed to the complaining party,
2.a breach of that duty, and
3. an injury or other loss caused by the breach.
A legal duty of care is the cornerstone of a negligence claim. If no duty was owed, there can be no negligence.
The duty of care we owe to our visitors is to protect them from unreasonable risks of harm. This includes, for owners and operators, an obligation to maintain the properties, and the activities on them, in such a manner that they are as safe as they appear to be, and to remove any hazard of which the owner/operator is, or should be, aware.
There are ways for operators to reduce or eliminate the legal duty owed. For example, we have no duty to protect a party from a risk that has been expressly assumed (“I choose not to wear a helmet”). We are not legally obligated to eliminate an inherent risk—that is, a risk without which the activity would lose its basic character: a client on a rope swing loses his grip, or fails to lift his feet to meet an obvious rise in the terrain.
Also, a legal duty can be waived or released. Hence our industry’s widespread use of waivers. However, the practical utility of waivers varies from state to state, and from one waiver form to the next.
THE HUMAN ELEMENT
The players in these stories are familiar: owners and operators of the premises; managers and staff; designers and builders; third-party trainers and inspectors; and issuers of credentials and standards.
Actual incidents and the persons who contributed to them are described here. While places and things may contribute to an incident, there is almost always a human factor that contributes. So our focus here is on visitors and staff.
Of course, we have long been aware that, in many cases, incidents have multiple contributors and contributing factors. Attorneys for potential claimants share that understanding, and it is a rare lawsuit that stops at “operator error” (either guest or staff). Let’s look more closely at the main players:
Suitability and compliance. Visitors must meet several tests. They must be “suitable” for the activity, which means they must meet requirements for age, height (or reach), and weight, as well as have some degree of emotional stability, and have no condition that would cause them to be a danger to themselves or others. Visitors must also be “compliant,” which means they must follow instructions and rules.
Suitability and compliance are shared responsibilities—that is, staff must be attentive to issues of suitability, and reject or separate an unsuitable visitor who does not do so himself.
In addition, the site must provide for visitors:
- protocols for instruction
- clearly announced rules, including warnings, and
- an attentive and informed staff empowered to enforce them.
Visitor errors include, among others:
- dangerous conduct on a zip line or swing—e.g. facing backwards, bouncing on a line or cable, unclipping
- participating while under the influence of drugs or alcohol, and
- failing to fdisclose disabilities or other issues that might cause harm.
Again, staff has some responsibility for spotting such conduct and intervening.
Sources of staff errors. Acts and omissions involving staff that produce bad results include:
- negligent hiring, training, and retention
- faulty instruction and supervision,
- lapses in site and participant awareness.
The inattentiveness or ignorance of staff frequently plays a role in incidents—in the State of the Industry survey, “staff error” ranks as the fourth most common cause of injury, behind slips and falls, animal and insect bites, and guest error. That’s why legal counsel for an injured visitor often will investigate the personal histories of staff and the employer’s records of incidents, outside reviews, and inspections. Plaintiff attorneys search for evidence to support an argument that the staff member was improperly (negligently) hired, trained, or had a history of lapses.
Staff training. Errors in staff performance often stem from second-generation training. This type of training occurs when staff that were trained—presumably, by outside or on-staff experts—undertake to replicate that training for new staff as they come on board. Too often, this training by trainees continues for years without reflection, though the procedures may be outdated or wrong. Teachable matters of practice and policy must be evaluated regularly by experts, and reinforced or modified as needed. Otherwise, the operation’s practices may increase the chances that staff error will contribute to incidents.
Incidents that might point to inadequate staff training, or a failure to properly assess or supervise, include:
- collisions on the zip line or platform
- failure of staff to successfully “catch” an incoming zipper, and
- miscommunications between the launching and receiving platforms. Loss of radio communication has been cited as the reason for several recent collisions resulting in serious injuries.
INCIDENTS TO LEARN FROM
1. Honduran fatality. In the summer of 2018, on a Honduras zip line tour to which cruise ship passengers were referred, a husband was killed when he collided with his wife who was “stuck” halfway down the line. The issue was miscommunication, or no communication, among staff.
2. Low landing. Zippers and rope swingers may hit the edge of a platform, or the ground, failing to lift their legs as they approach. A 2015 Michigan lawsuit alleged that a zip line rider was injured when she hit the ground, landing low and fast. Poor reflexes? Poor design? Poor instruction? While courts may observe that even the youngest child knows to pick up his or her feet when a change in elevation threatens, these incidents and injuries continue.
3. Braking. Zippers coming into platforms too fast may be the result of a failure of a braking system. But it is more likely that the zipper failed to brake as instructed, or lacked the strength to do so, or otherwise came in at such a speed that the backup braking system was overwhelmed. Such “hot” zippers, if not properly caught, may collide with the platform structure or others on the platform. In a recent Massachusetts case, the incoming zipper apparently fainted, was unable to brake, and collided with an unpadded tree on the far side of the platform.
4. Untethered staff. Staff members were seriously injured (Tennessee, 2010) or killed (Utah, 2015) when they fell while trying to catch or retrieve incoming zippers. In an attempted retrieval on a Hawaiian zip line in 2014, a staff member was pulled off the platform while holding onto the incoming zipper. She held on as long as she was able, and finally fell to her death. According to reports, in none of these cases was the staff member tethered to the platform.
5. Kids. An adult and child recently stalled for some time on a zip line 40 feet over a crocodile pond at an Orlando, Fla., park. The cause, according to the operator, was “wind gusts.” A Michigan court earlier this year (2019) denied summary judgment (disposition of the case before trial) sought by an owner/operator whose staff, a leave replacement supervising 24 children, failed to properly instruct a young child on the use of the playground zip line and how to break a fall.
6. Failure to supervise. Some programs advise their visitors that they should not assume that they are being supervised or even observed while on a tour. And yet we know that participants may do foolish things, even unclip, without warning and for a variety of reasons.
In a 2016 Michigan lawsuit, a staff member who provided a harness to an indoor wall climber and allegedly watched as it was put on was sued for recklessness when the climber fell from height and was badly injured. The harness was put on backwards.
7. Lack of awareness. Issues of visitor and site awareness include inattention to the condition of the course and obstacles on it. In 2016, a zipper at a Utah resort was killed when she collided with a tree that was falling, or had fallen, onto the line. Zip line and giant swing riders have been injured in recent years when they struck a ladder or movable platform inadvertently left in the path of the line or swing after it was used to access the element.
8. Unique dangers. A course may have unique characteristics that require special attention and training. Lawsuits have sought compensation for injuries resulting from a confusion of cables or ropes, causing zip line and swing riders to fall. Examples:
•In a case arbitrated in New York in late 2018, staff confused two ropes attached to the harness of a giant swing rider, who, untethered to the cable, fell 30 feet to the ground. The arbitrator found fault with the design of the swing, although the supplier forcefully argued operator error.
•At a North Carolina camp in 2015, staff clipped a 12-year-old girl into one of two zip lines, installed side by side and in close enough proximity to each other to, allegedly, confuse staff. Staff ran the tether from one zip line over the other, and then to the rider’s harness. Soon after launch the lines separated, the tether supporting the rider was severed by friction, and she fell to her death.
•A few years ago, in a Vermont park, an elderly gentleman on a self-belayed course mistook a guy wire for a zip line, clipped onto it, rode it to the ground and was injured.
• In 2015, an 18-year-old on a zip line in Tennessee died from a fall after his neck became entangled in the double lanyard system on his harness.
• And finally, in 2003, a staff member of four years’ experience, setting up an “aerial slide” teambuilding element in a U.K. park, strangled in her harness only a few feet above the ground. According to the newspaper account, the organization observed: “Something might have failed.” Indeed: Something, or someone, failed.
WHO’S AT FAULT?
Visitors and staff are clearly implicated in the events and bad outcomes described here. Deficiencies can be found in staff training and in the management of course conditions, gear, and visitors.
While visitors and staff are most prominent in these accounts, we know that other factors are also present. Part II of this series will revisit some of these incidents, introduce others, and discuss contributing factors of design, construction, terrain, and gear. Part II will conclude with a discussion of legal strategies for protection from liability, including for the carelessness of others.