Sunday, April 18, 2010

Recreational Adventure Liability

We had the spring RICKA sea kayaking pot luck on Saturday evening. It was as usual, a good time. It is always fun to see people after a long winter break and plan summer time fun.
As is typical at this gathering, the conversation trended towards liability. The sad fact of the matter is that one of the risks a trip leader (or coordinator) faces, in addition to the plethora of seafaring risks, is the the risk of being sued if something goes wrong and a paddler is injured. None of us are payed and, as far as I know, wealthy enough to shrug off being sued.
Our groups approach to the issue has always been to dance around it. We make sure the guidelines for joining a club trip and the expectations of paddlers on a trip on the Web site. Before leaving the beach, most leaders review the float plan, the predicted weather conditions and sea state, and the expectations of the participants. We are also very clear that we are volunteers and not paid guides. I usually point out that I don't have any credentials or certifications as well.
The idea is that if we are clear that we are amateurs, people will be less likely to sue and it would be less likely that a lawsuit would stick. It leaves leaders who do have professional certifications and/or credentials in a tricky spot since they are not really amateurs even if they are volunteering to lead or just along for a recreational paddle. That, however, is not a problem the club can really solve. Paddler's with professional credentials need to be aware of the risks of joining a club paddle and decide for themselves if they are willing to risk it. I doubt the club could protect them in a lawsuit if it tried.
Interestingly, two people at the meeting had spent Friday at an all day liability seminar for outdoor recreational clubs and shared their impressions. It was informative.
Everything from here out is just my rehashing of their rehashing of information gleaned from the conference on Friday. The people who went to the conference are not lawyers. I am not a lawyer. What follows should not be taken as legal guidance.
The biggest take away, and the most obvious, is that anyone can sue anyone for just about anything. Nothing you can do can shield you from being sued. If I broke a toenail on a flatwater trip, I could sue the coordinator for not ensuring my toenails were safe. (A judge would most definitely toss such a suit, but I could still bring it.)
The good news is that, according to our reps at the conference, there is no case law about clubs, or volunteers leading club trips, being sued. That means that nobody has ever actually been sued for this kind of activity.
Of course there is always a first time.... So what can one do to protect themselves in the case of being sued? It sounds like the best thing to do is due diligence. Inform trip participants of the known risks involved in the planned activity and the expectations for participation. To really CYA, make the participants sign a statement acknowledging the inherent risk of the activity. If a participant sues, you can prove that they knew there was a risk of injury and knowing accepted that risk. This will go along way towards making you look like you should not be held responsible (as long as you were not grossly negligent.)
People asked about waivers that state the participants waive their right to sue the leader or the club. It sounded like they were less than useless. A waiver won't stop someone from suing, and judges apparently don't like it when you ask someone to sign away a right to sue. It makes you look guilty....
The acknowledgment of risk form, on the other hand, doesn't try to absolve anyone of guilt before hand. It just states that participants are aware of the inherent risks involved in an activity.
The other thing that was mentioned as a possible way to shield coordinators and the club from liability was adopting what is called the "common adventure" model. In the "common adventure" model there is no coordinator or leader. A trip participants are merely doing an activity in proximity to one another and if coordination is required, it is done as a democracy. The problem with the "common adventure" model, from a liability stand point (I have a host of problems with it from a club standpoint), is that is very easy to slip outside the bounds of the model. According to the conference attendees, any activity that is done on the auspices of a club is not a common adventure. Also, as soon as one member of the group takes what can be reasonably assumed as a leadership role, the adventure is no longer a "common adventure". Also, it does not shield you from liability. If someone wanted to sue, they still could.
The one thing the "common adventure" model does do, and what RICKA's use of coordinator and repeated statements that we are uncertified volunteers does, is, in theory, make us look like people who don't have a strong organization with lots of money behind us. It makes us less likely to be targets of a law suit because there is no big purse we can dip into. Why sue a yahoo sea kayaker whose only likely asset is 18' of fiberglass and a rusted out car to transport the fiberglass? It would cost more in lawyer fees than you'd hope to win.
Nothing was decided about how the club would proceed. We may have a sign-up sheet for trips. I do not think it is a bad idea. I prefer to have a paddle in dangerous seas. Or we may not. Some people feel like a sign-up sheet with an acknowledgment of risk statement would make us look like better targets for a lawsuit.
Either way, the risk of a lawsuit is omnipresent. If someone gets seriously hurt on a club trip, there is always the chance that they will come looking for someone to blame or simply to help defray the medical costs incurred to recover.
The best things to do are be honest and clear about what is expected, keep an eye on the group, paddle smart, and if there is an emergency handle it as best as possible. Kayaking on the ocean is a risky hobby. People and gear can be broken. People, unlike gear, can also sue.
The risk is part of the reward.

Sunday, April 11, 2010

Sneaking Out

Work seems to be absolutely crazy lately and less interesting than is ideal. The crazy rains and springish intervals add to the itch to paddle. Thursday night I called TM to see if I could talk him into doing a low key, spring paddle. I figured he'd suggest a pond for some practice. I didn't really care what the venue was, I just wanted to kayak.
TM thought Bay Campus to Rome Point would make a good trip. It has distance, some rocks, and plenty of space to practice boat handling skills without the potential dangers of heading out of the Bay. We also agreed that we would not post the paddle on the message board because we really wanted a calm paddle. (My feelings are that if you post the trip, you make it a group trip and have to be willing to satisfy the needs of the group. I was not willing to do so this time around. I had specific ideas and was not really looking to compromise them.)
The weather on Saturday was not as pristine as the weekday weather promised. It was cooler and windier. It was still better than freezing gales, rain, or snow. A little wind is to be expected.
We actually wound up as a threesome. TM had run into CC at yoga and invited her along. CC is a great person to paddle with. She is skilled, laid back, and rarely looking for new ways to get into to trouble. On top of that, she is just nice to talk to.
We paddled north into a reasonable headwind and against the current. It is always smart to start into the wind so that the return trip is easier....
We stuck close to the shore to get some protection from the wind and to catch the counter current. It didn't help much, but we didn't need much help. The wind was just enough to feel and kick up little bumps in the water.
We took a leisurely lunch on the south side of Rome Point. The trees sheltered us from the wind nicely and the sun kept us toasty.
The return trip was more tricky. The wind picked up and shifted while we ate. Instead of a tailwind, we had a quartering wind that occasionally gusted. I enjoyed the challenge. I re-familiarized myself with the Q-Boat's crazy weather cocking. Practiced countering it both with and without the skeg.
We also discussed the possibility of TM joining us for some ME camping this summer. We almost had him convinced it was a good idea until he learned that part of leaving no trace meant leaving no poop.... Having to bag up your poop and carry it out is a little gross at first. After the first time, it is no big deal. It's not that different from picking up doggy poop.
Back at the beach I considered a roll, but decided against it. Why risk tarnishing a good paddle with a failed roll?
At the post-paddle coffee TM got his first look at an iPad. He declared that it was the computer he had been dreaming of for years (and he calls himself a technophobe). The iPad was fun to play with, but I don't think it would do well on a kayaking trip....