James H. Moss, J.D.OSU Environmental InterpretationCapital Law School, J.D.Clients in Outdoor Recreation:Individuals to Organizations, Colleges & Universities,Concessionaires & Permittees,Manufactures to Retailers
Ground RulesWe can only talk about what I understand
Expert WitnessCollege & University ProgramsSummer & Church CampsSki Accidents
Represent College ProgramsCornell, Ohio State University, OregonState University, Idaho State University,University of Idaho, Miami (OH),Southern Baptist, Ohio University,University of Utah, University ofSouthern Utah, University of Alabama,Florida State University, Humboldt,Colorado Mountain College, Universityof Wyoming, Thompson River University
WWW.RECREATION-LAW.COM Weekly Case Analysis Weekly Legal Analysis News & Information
Since 20017000 Medical Ski Evacuations (2years)16 Fatalities3 Quadriplegics1 Paraplegic
Disclaimer: All legal advice by it’s verynature is subject to change and the laws of each state. All legaladvice requires a review by your local attorney
Reality No matter what we learn here a judge can change it. By the time we get done with the conference a judge has probably changed it.If you are really bad, you are going to lose no matter what
Whatever any student or college wantsto do…..you can do it.Understand the real risks of the activity (Misunderstanding by everyone else including parents)Pre Activity EducationPre Activity PaperworkPost Accident Response
How Release: Prescott University Videos Photographs
Appendix A OLIVET NAZARENE UNIVERSITY CLIMBING WALL RELEASE OF ALL CLAIMS AND COVENANT NOT TO SUE ASSUMPTION OF RISK / LIABILITY WAIVER FORMNotice: This is a legally binding agreement. By signing this agreement you give up your right to bring court action or recovercompensation or obtain any other remedy for any injury to yourself or your property or for your death however caused arisingout of your use of the Olivet Nazarene University Climbing Wall now or anytime in the future.1. Assumption of RiskI hereby acknowledge and agree that wall climbing and the use of the Olivet Nazarene University Climbing Wall is whollyvoluntary and may expose me to significant risks. I have full knowledge of the nature and extent of all risks associated with wallclimbing, including but not limited to: 1. All manner of injury resulting from falling off the Climbing Wall and impacting against the wall or ground. 2. Injuries resulting from being dropped to the ground during belaying or lowering. 3. Failure of rope, slings, harness, climbing hardware, anchor points, or any part of the Climbing Wall structure.I understand that the risks inherent in climbing may result in serious injury, including, but not limited to broken bones,concussions, cuts, scrapes, bruises or even death.I understand that helmets are available upon request.I understand that I am responsible for the condition of personal gear (harness, helmet, climbing shoes, chalk bag). Paragraph 1 read and understood __________________________2. Release of All Claims and Covenant Not to SueIn consideration of my use of the Olivet Nazarene University Climbing Wall, I agree to release and on behalf of myself, my heirs,representatives, executors, administrators, and assigns HEREBY DO RELEASE Olivet Nazarene University, its officers, agents,and employees from any causes of action, claims, or demands of any nature whatsoever, which I, my heirs, representatives,executors and assigns may now have, or have in the future against Olivet Nazarene University on account of personal injury,property damage, death or loss of any kind, arising out of or in any way related to my use of the Climbing Wall, whether arisingout of negligence, gross negligence, or any other cause. Paragraph 2 read and understood __________________________3. In further consideration of my use of the Climbing Wall, neither I the undersigned user, nor my heirs, representatives,executors, administrators, and assigns shall file a lawsuit or otherwise assert any claim whatsoever for personal injury, propertydamage, or death arising out of or in any other manner related to my use of the ONU Climbing Wall. I on behalf of myself andmy heirs, representatives, executors, administrators, and assigns agree to INDEMNIFY AND HOLD HARMLESS OlivetNazarene University, its officers, agents, and employees from any and all causes of action, claims, demands, losses, or costs ofany nature whatsoever, including attorney’s fees arising out of or in any way relating to my use of the Climbing Wall, whetherarising out of negligence, gross negligence, or any other cause. Paragraph 3 read and understood __________________________4. I hereby certify that I have full knowledge of the nature and extent of the risks inherent in the use of the Climbing Wall andthat I am voluntarily assuming these risks. I understand that I will by solely responsible for any loss or damage, including death,I sustain while using the Climbing Wall and that by this agreement I am relieving the Olivet Nazarene University of any and allliability for such loss, damage, or death. I further certify that I am in good health and that I have no physical limitations thatwould preclude my safe use of the Climbing Wall. Paragraph 4 read and understood __________________________BY SIGNING THIS DOCUMENT, I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTOOD THIS DOCUMENT,AND THAT I KNOWINGLY AND VOLUNTARILY ASSUME ALL RISKS AND EXEMPT AND RELIEVE OLIVETNAZARENE UNIVERSITY, ITS OFFICERS, AGENTS, OR EMPLOYEES FROM LIABILITY FOR PERSONAL INJURY,PROPERTY DAMAGE, WRONGFUL DEATH OR ANY OTHER LOSS CAUSED BY ANY REASON ARISING OUT OFMY PARTICIPATING AT THE CLIMBING WALL.____________________________________________ ________________________________________Climbing Wall user’s signature Date Climbing Wall user’s printed name____________________________________________ ________________________________________Parent or guardians signature (if under 18) Date Parent or guardians printed name (if under 18)____________________________________________ ________________________________________ONU Staff signature Date ONU Staff printed name
American with Disabilities Act HIPAARec/SportsPrograms & Classes Confidential Medical Information No Physician, person with the ability (legal) to make the decision is involved in this process:
Validity of Releases College Release Law Misc.Eastern Nazarene College, Probably Parents sign away Minor’sQuincy, MA right to sueMount Vernon Nazarene Valid Parents sign away Minor’sUniversity, Mt. Vernon, OH right to sueOlivet Nazarene University, ValidBourbonnais, ILTrevecca Nazarene Valid (Nascar Rule)University, Nashville, TNMid America Nazarene Valid No Gross NegligenceUniversity, Olathe, KSSouthern Nazarene University, ValidBethany, OKColorado Bible Valid Parents sign away Minor’sCollege, Colorado Springs, CO right to sueNorthwest Nazarene University, ValidNampa, IDPoint Loma Nazarene Valid Parents sign away Minor’sUniversity, San Diego, CA right to sue
Releases1. Must tell the person what they are signing2. Must tell the people about the risk3. Must say the word negligence4. Must say where the lawsuit will be5. Must say what law will be applied to the lawsuit6. Must be signed
Not NeededInitialsWhat it won’t coverWhat it can’t coverIndemnification issuesWitnessesOne document to cover all risks
Can’t haveSmall printHidden documentsSign in sheetDancing around the word“negligence”
What you may not know……. Post Accident Evaluations
Largest Payouts in OutdoorRecreationPtarmigan Peak: University of Alaska ($20 M)Mt. Hood: Oregon Episcopal School ($??)What did they have in Common?They hired outside (non-insurance/non-legal) review of the accidents.
Outdoor RecreationEvaluations: Must beProfessional
Hire Professional to Help10 years of experience running a climbingwall only gives you experience running aclimbing wall.A wall is a wall that must be examined by anengineer10 years of experience running aRopes/Challenge course……An engineer checks stress, loads, etc.
CurrentlyCampus hired “expert” to evaluate programProvided “draft” auditStudent/Employee fell on defectiveequipmentExpert sued Expert had no credentialsNow School looks dumb hiring the “expert.”
Risk Management PlanUsed in an emergency. To be followed!
Tell me about your Risk ManagementPlanWhat is on page 17?When was the last time you trained onyour Risk Management Plan?All of your employees at thesupervisory level or above know theRisk Management Plan, Correct?
Breach of DutyIf you do not follow the riskmanagement plan and someone isinjured have you breached a dutyto them?
Breach of DutyIf you have an emergency that isnot covered in your RiskManagement Plan have youbreached a duty to the person ifthey are injured?
Tornado FireCollege Recreation Hurricane Windstorm Hail Snake bite Lightening Skunk Incompatible Personalities Food Allergy Coyote Branch/Tree falls Sun Insect bite allergy Pre-Existing Medical Condition Sky diver falls on camper Hunger Trip & Fall Dehydration Bear Poor Hygiene Issues Rope Burn Bleachers Collapse Fire Rain Fire Sprained Ankle Lost person Fatigue Exhaustion Forest Fire Environmental RisksStove Explosion Poison Ivy Blister from hike Cold Back injury False Fire Bee Sting Sunburn Injuries Animal eats/steals food Bus Accident Outside interference Bad Water Fish hook puncture Cut from knife or axCooking Pot Explosion Wind storm
Duty Breach of the Duty Negligence Injury Caused By the Breach Damages4/18/2013 Professional Paddlesports Association 61
Risk Management Plan Prepared to be used in case of an emergency
100 of Hours being Prepared• Can’t be memorized• Can’t fit any situation if to detailed• Can’t cover all situations no matter what• Only used by the plaintiff to prove you were negligent
YOU WRITE ITDOWN AS A“POLICY”“STANDARD”“GUIDELINE” YOUBETTER FOLLOW IT!
Review Programs & PoliciesSports & Recreation willuse AED’s“Recreation” programwent backpacking for upto 10 daysHard to add 14 poundsof AED to a backpack
100 Hours better spentEducating staff on what to doCreating a training program that trainspeople how to respondKnowledge is better than any dustybook sitting on a shelf
Instead of writing what will never bereadTrain on what to do?Determine your resources forsituationsTrain to deal with disasters ANY Disaster
Cover in your plan, why you onlyhave the items in the plan you do1-2 Pages longA. Who is in chargeB. Where to go for help off campus and whenC. Who can help on campusD. What are your resourcesE. When to evacuate
ICSIncident Command System This is how the Federal and StateGovernment deals with disasters Most police and fire departments usethe ICS system
ICSWhen any “agency” comes intoassist, they are going to implementthe ICS systemWhy not use a system that can beused, rather than thrown out
ICS TrainingOnline Levels 100, 200 and 300 can betaken online
Proper Risk Management Plan What steps do you take in case of a fire? Big Ones Really Really Big Ones