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.


  1. Eric, I read your above posting on club trips, CAM, and non-certified volunteers with interest. From what I gather the three largest New England kayak clubs (RICKA, CONNYAK and NSPN) all follow the CAM model. I happen to be a fairly recently minted ACA kayak instructor, but I have not yet actually taught a course. I have actually participated in several open ocean RICKA trips in the past. Your comments would seem to suggest that if one has a certification and participates in a club trip, in which an incident occurs, they would be more likely to be sued, particularly if they are perceived as being in a 'leadership' role. That is quite sobering. On a related note, the kayak club in my region (Upstate, NY) runs their trips on a very loose CAM model. This club had a trip recently (early May 2010) on a local reservior that most New Englanders would consider extremely tame. Without going into great detail, due to local weather conditions, water temperature, and lack participants with any safety training they almost had a fatality. In reality their application of a CAM model did not work. They are doing a great deal of post incident introspection, but regrettably they seem to be hanging their hat on lack of participants with VHF radios. Based on my reading of the details of the incident (I was not there) they had many more issues than just no radios. Yes, in fairness radios could have helped, if used effectively. However, there were many more basic issues involved, such as the weather conditions, no buddy system (no one counting heads), the group becoming highly separated, total lack of communications, little safety training or practice on self rescues, etc. I could go on. It will be interesting to see how this club ultimately responds to the recent incident and how they modify there application of CAM.

  2. A ship in harbour is safe, but that is not what ships are built for.