Reasonable Expectations

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What legal duty of care does an adventure park owe a visitor with respect to safety equipment furnished to the visitor? The reported circumstances around the 2021 death of a zip line employee, and the findings of the investigating state occupational safety agency, are instructive.

I will draw on published reports of the death and of the investigation that followed. There may be errors and inconsistencies in the reporting, and, the business of the investigating agency being occupational safety, the focus of the reporting is the conduct of the employer—not the manufacturer or provider of the gear, the deceased employee, or others.

Here we will consider the issues from the standpoint of visitor, not employee, claims. First, let’s recap the accident and the reported findings.

THE ACCIDENT

In the fall of 2021, an employee of a major zip line operation was killed when he was thrown into the anchoring structure at the end of the line. The employee was zipping at a high speed (more than 80 mph, according to one source), and was working at the time of the accident.

The findings. The state agency charged with investigating employment-related injuries and deaths concluded that the lanyard component of the system attaching the rider to a trolley on the line had failed. It found that the lanyard had not been properly inspected or replaced as recommended by both the manufacturer of the lanyard and the designer and installer of the zip line course.

The owner/operator was fined more than $27,000 for safety violations, specifically, failing to maintain a workplace free of deadly hazards, and failing to train employees on the proper care of protective equipment.

One report noted that the absence of state regulations pertaining to zip lines limited the ability of the agency to find more egregious misconduct (willful disregard for the safety of the employee, for example) which, according to those reports, might have produced a higher penalty or even criminal charges.

The course was built in 2015 and changed ownership in 2017, roughly four years before the accident. Before and after the change in ownership, the model of the lanyard involved in the accident had been the subject of notices and alerts from the installer of the zip lines. These communications called for training employees in the use and documented inspection of the lanyards, and for the lanyards to be retired and replaced annually.

A May 2019 inspection by the installer found the lanyard involved in the accident had “excessive fuzziness” and other signs of wear, according to the incident investigation report.

In early June 2017, the installer updated its Operations and Maintenance Manual to declare that the lanyard had a maximum lifespan of one year with heavy use. An official from the new owners of the zip line tour objected to the installer’s update, questioning its validity and lack of conformity to the manufacturer’s guidelines, and announced that the new owners would rely instead on their own experts who, the official said, were familiar with industry standards.

At the time of the accident, the guide’s lanyard had been in use for nearly three full seasons.

A note about workers’ compensation as it relates to this event: The accident was an employment-related matter, and if, as is likely, the employer was a subscriber to the state’s workers’ compensation program, compensation to the decedent’s family would be expected from that source.

State laws vary somewhat on the issue but, generally, only in situations of an aggravated wrong—recklessness, or intentional misconduct—may the injured employee or family go outside the workers’ compensation scheme and file a civil lawsuit.

Had the decedent been a visitor/guest rather than an employee, a lawsuit might have been filed. The workplace safety agency would not have been involved. The representatives of the deceased surely would hire their own experts, whose investigation would be expected to include the conduct of the employer, and also the manufacturer and vendor of the lanyard, third party trainers and inspectors, and, possibly, the designer and builder of the landing environment. It’s likely that this “private” investigation would reveal much, if not all, the same information collected by the state agency.

DUTY OF CARE

Again, the following discussion considers the issues of a visitor to the zip line, not an employee. A suit arising from the death of a visitor (or other non-employee) in the circumstances described above would certainly include an assertion of negligence. Readers are likely familiar with the elements of a cause of action for negligence: a duty of care is owed, that duty is breached, and the breach causes an injury or other loss.

Clearly a duty of care would have been owed by the operator to the (visiting) rider in our scenario. That duty is usually described as one of reasonableness—to act as a reasonable operator would have acted in the same or similar circumstances. A determination of reasonableness in our scenario would include the factors discussed next, including laws, internal policies, and prevailing practices in the industry.

Was the duty of care breached—that is, did the owner-operator act unreasonably in these circumstances? Consider the conduct of the zip line tour in furnishing the rider with the lanyard:

1) Based on the reports, the lanyard was four years old at the time of the accident, and had been in use for nearly three years—well beyond the “safe” life declared by the installer.

2) The continued use of the lanyard violated repeated warnings and directives of the installer (and, arguably, of the manufacturer).

3) Staff had either not received, or ignored, training in the inspection, identification of excessive wear, and retirement, of the lanyard.

Was the operator’s conduct reasonable? Courts and juries are influenced by various factors in measuring the reasonableness of the conduct of a service provider accused of negligence. Important among these factors are laws, regulations, and industry standards.

Neither laws nor regulations were included in published reports of the 2021 death. In fact, according to the reports, the state in which the death occurred had no regulations governing its zip lines. Industry standards are mentioned in the reporting, but not by name or any other specifics.

Also pertinent to the issue of reasonableness are the service provider’s own policies, and the directions (and certainly warnings) of the equipment’s manufacturer and provider. Were these followed?

Finally, the jury will hear testimony from experts regarding what would have been reasonable conduct in the circumstances. Experts will be equally assertive on both (all) sides of the issues (including, though not in the scope of this article, design and manufacturing defects, and the carelessness of the injured or deceased party).

REGULATIONS, STANDARDS, WARNINGS

Under the laws of most states, each of these considerations—laws, regulations, standards, internal policies, manufacturers’ and vendors’ warnings, and evidence of good practices—carries with it a distinct burden of proof.

Breaking a law that is designed to prevent wrongful conduct is, in most states, negligence per se. That is, the wrongful nature of the conduct is settled as a matter of law; the complaining party is left to prove only that the unlawful conduct caused or contributed to the loss.

Violation of regulations and standards may raise only a (rebuttable) presumption of negligence. That is, the defendant may convince the judge or jury that the regulation or standard is wrong, or that special circumstances compel the court to find that the conduct, under these particular circumstances, was not negligence.

Evidence of directions or warnings from a manufacturer, supplier, or other expert will influence a determination of reasonableness, depending on the credibility of testifying experts and the ingenuity and skill of counsel.

Bottom line: When considering issues of duty, causation, and liability arising from the use of safety equipment in adventure programming, understand applicable laws, regulations, and standards. Know and evaluate the directions and guidelines of the manufacturer and other experts, your internal policies, and prevailing practices.

If you deviate from practices required or suggested by these sources, you must have a very good reason for doing so, and you must be prepared to persuade twelve strangers that your deviation was reasonable.

Reb Gregg is a Houston-based attorney specializing in legal issues of outdoor adventure programming.

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