Professional Paddlesports Association 2011

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Presented to the Professional Paddlesports Association Conference 2011

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Professional Paddlesports Association 2011

  1. 1. An Animated PowerPoint Template
  2. 2. OSU Environmental InterpretationCapital Law School, J.D.500 Clients in Outdoor RecreationFieldIndividuals to OrganizationsConcessionaires & PermitteesManufactures to Retailers4/22/2013 Professional Paddlesports Association 2
  3. 3. Ski Area Operations RiskManagement4/22/2013 Professional Paddlesports Association 3
  4. 4. Union Internationale DesAssociations D’Alpinisme(International Mountaineering andClimbing Federation)member of the Legal Committee4/22/2013 Professional Paddlesports Association 4
  5. 5. F08 Sports Equipment & FacilitiesF27 Snow SkiingF32 Search & Rescue4/22/2013 Professional Paddlesports Association 5
  6. 6. Whitewater Rafting CompanieSnow MobilesRopes CourseCanoe LiveriesClimbing GymsLand owners4/22/2013 Professional Paddlesports Association 6
  7. 7. Only Person to win Board of LandAppeals10 Fatalities with no $$ paidWork as aRiver, Mountain, Jungle, Cycling & RockClimbing GuideI still GuideI’ve participated in 54 trials 15 in OR4/22/2013 Professional Paddlesports Association 7
  8. 8. Weekly Case AnalysisWeekly Legal AnalysisNews & Information
  9. 9. www.recreation-law.comTwitter: RecreationLawFacebook: Rec Law NowFB Page: OutdoorRecreation4/22/2013 Professional Paddlesports Association 9
  10. 10. 4/22/2013 Professional Paddlesports Association 10
  11. 11. My Purpose is to inform &EducateYour job is to applyinformation to your program4/22/2013 Professional Paddlesports Association 11
  12. 12. Based on GoodCommunicationNot judging eachother, judging theinformationNot telling you how torun your life4/22/2013 Professional Paddlesports Association 12
  13. 13. All legal advice by it’s verynature is subject to changeand the laws of each state.All legal advice requires areview by your localattorney.4/22/2013 Professional Paddlesports Association 13
  14. 14. No matter what we learn herea judge can change it.By the time we get done withthe conference a judge hasprobably changed it.If you are really bad, you aregoing to lose no matter what4/22/2013 Professional Paddlesports Association 14
  15. 15. Industry AverageNo LawsuitsLawyer’s Dream4/22/2013 Professional Paddlesports Association 15
  16. 16. RISK OF INJURYRISKOF ALAWSUIT4/22/2013 Professional Paddlesports Association 16
  17. 17. SEVERITY OF THE INJURYRISKOF ALAWSUIT Para/QuadFatality4/22/2013 Professional Paddlesports Association 17
  18. 18. No EthicsNo MoralsJust Law4/22/2013 Professional Paddlesports Association 18
  19. 19. Anyone who was bleeding, unconscious or inpainAnyone related to the aboveAnyone who was with the aboveAnyone who saw any blood or painAnyone in your company who heard about theincidentAny guest who heard about it4/22/2013 Professional Paddlesports Association 19
  20. 20. This is the person we train forWe are usually experts in first aid andevacuation100% of our concentration goes to thisperson4/22/2013 Professional Paddlesports Association 20
  21. 21. This is our second tier area ofconcentrationWe only deal with thesepeople post removal from thesceneSpousesChildrenParents4/22/2013 Professional Paddlesports Association 21
  22. 22. FriendsBusiness AssociatesFraternal Organization Members4/22/2013 Professional Paddlesports Association 22
  23. 23. All other people on the tripEmployees, Volunteers & IndependentContractors on the tripResponding EMS4/22/2013 Professional Paddlesports Association 23
  24. 24. Base Personnel4/22/2013 Professional Paddlesports Association 24
  25. 25. Future Guests coming next weekFuture students signing up for the class4/22/2013 Professional Paddlesports Association 25
  26. 26. DutyBreach of the DutyInjury proximal caused by thebreach of the dutyDamages arising from theinjury4/22/2013 Professional Paddlesports Association 26
  27. 27. NegligenceDutyBreach of theDutyInjury CausedBy the BreachDamages4/22/2013 Professional Paddlesports Association 27
  28. 28. If any one of the four elementis missing there is nonegligenceCollege Programs the issueis always DutyWas there a duty to theparticipant4/22/2013 Professional Paddlesports Association 28
  29. 29. 4/22/2013 Professional Paddlesports Association 29
  30. 30. DESIGNWorkplace layoutDesign of tools & equipmentMaintenance4/22/2013 Professional Paddlesports Association 30
  31. 31. SYSTEMS &PROCEDURESLack of systems &proceduresInappropriate systems &proceduresTraining in proceduresHousekeeping4/22/2013 Professional Paddlesports Association 31
  32. 32. 4/22/2013 Professional Paddlesports Association 32
  33. 33. Remember, always dig deep for theanswers.Don’t suffer from TEGO!4/22/2013 Professional Paddlesports Association 33
  34. 34. NegligencePer SeIntentionalWillful &WantonGrossDegrees of Negligence4/22/2013 Professional Paddlesports Association 34
  35. 35. State By Statute RestrictionsAlaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using arelease by ski areas for ski injuriesArizona ARS § 12-553 Limited to Equine ActivitiesColorado C.R.S. §§13-22-107 Some commentators consider the statute alittle weakFlorida Florida Statute § 744.301 (3)By Case LawCalifornia Hohe v. San diego unified sch. Dist., 224 Cal.App.3d 1559, 274Cal.Rptr. 647 (1990)Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to requirearbitration of the minor’s claimsFlorida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L.Weekly D1147Release can be used for volunteer activitiesand by government entitiesMassachusettsSharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002Mass. LEXIS 384North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411;2003 N.D. LEXIS 3Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 OhioSt.3d 367 (1998)Maybe only for non-profitsWisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1However the decision in Atkins v. SwimwestFamily Fitness Center, 2005 WI 4; 2005 Wisc.LEXIS 2 voided all releases in the state4/22/2013 Professional Paddlesports Association 35
  36. 36. Year Payout Defendant Claim Source$750,000 Remlinger Farms Climbing wallhttp://www.schifferman.com/CM/Custom/Settlements-Verdicts.asp2003 $250,000Mountain StreamsOutfittersDrowned whitewaterrafting2008 $400,000Sutter County CaliforniaSchool DistrictImproperly tied into thecourse$400,000 challenge coursesettlement for shattered ankle2009 $500,000 Ohio UniversityFailure to supervise andprotect from a fireOU to pay $500,000 to settlelawsuit with burned student2009 $13.MCathedral Oaks AthleticClub Summer CampDrowningDeath we have commented onallegedly has a $14 millionverdict2009 $4.7MAlpine TowersInternationalImproper equipment andfailure to train$4.7 million dollar verdict inclimbing wall case againstAlpine Towers in SouthCarolina Court2009 $2.3M Boomers Fall from Climbing WallAnother multimillion dollarjury verdict in outdoorrecreation2009 $2.36M Work To Ride Inc. Kicked by horse Boy Awarded $2.36 Millionfor Horse Kick to the Face4/22/2013 Professional Paddlesports Association 36
  37. 37. Equestrian Liability Actsare 100% EffectiveNo horse has yet to besuedCopyright 2010 Summit Magic Publishing LLC12/15/20104/22/2013 Professional Paddlesports Association 37
  38. 38. Smith Et Al. v. Phillips, Et Al., 2010Tenn. App. LEXIS 228Jordan v. Ymca of Middle Tennessee, EtAl., 2010 Tenn. App. LEXIS 616Zuckerman v. Camp Laurel, 2010 U.S.Dist. LEXIS 55747Pendergrass v. Diamond Bar & Circle KHorse Rentals, 2010 Cal. App. Unpub.LEXIS 6897Perry, vs. Whitley County 4-H ClubsInc., 2010 Ind. App. LEXIS 1501These are all decisions in 2010!12/15/20104/22/2013 Professional Paddlesports Association 38
  39. 39. Make sure yourreleases covereverything4/22/2013 Professional Paddlesports Association 39
  40. 40. Covers activitiesDoes not cover the land ownerWatkins, Jr., v St. Francis Camp on theLake, 2010 Mich. App. LEXIS 1814Judge found the negligence claim wasactually a premises liability claimVery different defenses as a landownerCopyright 2010 Summit Magic Publishing LLC12/15/20104/22/2013 Professional Paddlesports Association 40
  41. 41. Gross Negligence Claims12/15/20104/22/2013 Professional Paddlesports Association 41
  42. 42. Number of lawsuitsclaiming grossnegligence is upGross negligenceclaims prevent motionsfor summary judgmentUsed to scarydefendants because ofinsurance issuesCopyright 2010 Summit Magic Publishing LLC12/15/20104/22/2013 Professional Paddlesports Association 42
  43. 43. No increase in theplaintiff’s winning lawsuitsbased on grossnegligenceVery rare stillCopyright 2010 Summit Magic Publishing LLC12/15/20104/22/2013 Professional Paddlesports Association 43
  44. 44. Moki Mac RiverExpeditions, v. Drugg 221S.W.3d 569; 2007 Tex. LEXIS188; 50 Tex. Sup. J. 498This case has been going onfor 9 years. The accidentoccurred in Arizona in 2001The lawsuit was in TexasThe defendant is based inUtah!Copyright 2010 Summit Magic Publishing LLC12/15/20104/22/2013 Professional Paddlesports Association 44
  45. 45. Where the trialwill be heldWhat law willbe applied12/15/20104/22/2013 Professional Paddlesports Association 45
  46. 46. Put a Jurisdictionand Venue clause inevery agreementwith guestsThe picture has nothing to do with the issue, it is just a funnypictureCopyright 2010 Summit Magic Publishing LLC12/15/20104/22/2013 Professional Paddlesports Association 46
  47. 47. FloridaCopyright 2010 Summit Magic Publishing LLC12/15/20104/22/2013 Professional Paddlesports Association 47
  48. 48. Florida Statute § 744.301 (3) now allowsa parent to sign a release so a minorcannot sueCopyright 2010 Summit Magic Publishing LLC12/15/20104/22/2013 Professional Paddlesports Association 48
  49. 49. FloridaOhioCaliforniaColoradoNorth DakotaMassachusettsAlaskaWisconsinNorth Carolina4/22/2013 Professional Paddlesports Association 49Good States State where law isunknownAll other states prohibit aparent from signing away aminor’s right to sue
  50. 50. LouisianaMontanaVirginiaConnecticutWisconsinNew York4/22/2013 Professional Paddlesports Association 50
  51. 51. Ropes/Challenge Courses $5.10 MYouth Church Programs $4.75 MClimbing Walls $2.95 MOutdoor Programs $2.61 MSummer Camps $13.0 MCollege & Universities $0.50 M4/22/2013 Professional Paddlesports Association 51Payouts
  52. 52. More litigation based onstandards12/15/20104/22/2013 Professional Paddlesports Association 52
  53. 53. Copyright 2010 Summit Magic Publishing LLC12/15/20104/22/2013 Professional Paddlesports Association 53
  54. 54. 4/22/2013 Professional Paddlesports Association 54
  55. 55. Advertised as12-14 MPHTesting shows:9-10 MPH4/22/2013 Professional Paddlesports Association 55
  56. 56. $50,000 Fine for paying Worker’sCompensation claim out of pocket and notreporting it.Workplace Safety and Health: Enhancing OSHAs RecordsAudit Process Could Improve the Accuracy of Worker Injuryand Illness DataCopyright 2010 Summit Magic Publishing LLC12/15/20104/22/2013 Professional Paddlesports Association 56
  57. 57. 30 Releases surveyedAverage Score was 4.6 out of 1057% written by an attorney46% reviewed by Insurance Co.Yet overall they would not work!Copyright 2010 Summit Magic Publishing LLC12/15/20104/22/2013 Professional Paddlesports Association 57
  58. 58. 4/22/2013 Professional Paddlesports Association58
  59. 59. The standard that you will be judged byDeveloped by the industry standard for aparticular areaModified by the sensibilities of the jury4/22/2013 Professional Paddlesports Association 59
  60. 60. If the Duty of care, theStandard is written that is theduty you will be held too.If the duty is not written, then itbecomes an argument of theexperts4/22/2013 Professional Paddlesports Association 60
  61. 61. If we have all of the Good Experts wewin the casesThe way to have the good experts is foryou to not testify for the plaintiffsNo matter how much money they offer you.In the long run, it will cost you more no matterhow much you are paid4/22/2013 Professional Paddlesports Association 61
  62. 62. Look at the industry your are inLook at what your insurance allowsLook at what your mission statement isLook at what you can deal with4/22/2013 Professional Paddlesports Association 62
  63. 63. You must not drop below theindustry standardThe rest are all helpful, notimperative4/22/2013 Professional Paddlesports Association 63
  64. 64. TalkWatchLearn4/22/2013 Professional Paddlesports Association 64
  65. 65. 4/22/2013 Professional Paddlesports Association 65
  66. 66. Not StaticNot reveredNot written by ManagementNot sealed and protectedNot brought out for special occasions4/22/2013 Professional Paddlesports Association 66
  67. 67. Helps to identify risksHelps to keep direction of company goingTo late to develop when all Hell breakslose.4/22/2013 Professional Paddlesports Association 67
  68. 68. Your StandardsRegional StandardsNationwide Standards4/22/2013 Professional Paddlesports Association 68
  69. 69. Oars Boats versus Paddle BoatsIn the woods or in the River5.8 equals a 5.6New activity4/22/2013 Professional Paddlesports Association 69
  70. 70. ExperiencePhysical LocationType of ClienteleType of ParentsType of Employees4/22/2013 Professional Paddlesports Association 70
  71. 71. Emergency Procedures in the FieldEmergency Procedures at baseCommunicationsRisk EvaluationEmergency Phone NumbersEmergency Field Phone Numbers4/22/2013 Professional Paddlesports Association 71
  72. 72. Investigation ProtocolsManufactures’ InformationHistory, Goals, ObjectivesAreas of OperationTrip ItinerariesMeals ItineraryFederal, State and Local Laws and RegulationsSanitation ProceduresEnvironmental Procedures4/22/2013 Professional Paddlesports Association 72
  73. 73. How to avoidlawsuits, not createthemWhat to do in anemergencyHead not on straightBlueprint to follow whennothing else is working
  74. 74. This is becoming the most importantaspect of most lawsuits4/22/2013 Professional Paddlesports Association 74
  75. 75. While investigating a tripAfter Signing up for TripUpon ArrivalGoing to siteOn Trip4/22/2013 Professional Paddlesports Association 75
  76. 76. General level of RiskWill sign a releaseExpectations of themLikely hood of US Medical Treatment4/22/2013 Professional Paddlesports Association 76
  77. 77. What the release is and saysSpecific Trip RiskInsurance InformationChance to Change their mind.Expectations of themHealth RisksMedical Information4/22/2013 Professional Paddlesports Association 77
  78. 78. Safety TalksChance to change their mindExpectations of them4/22/2013 Professional Paddlesports Association 78
  79. 79. Safety TalkSpecific Self RescueExpectations of them4/22/2013 Professional Paddlesports Association 79
  80. 80. Safety ReviewSanitationEnvironmentalWhat to do in an emergency4/22/2013 Professional Paddlesports Association 80
  81. 81. Checklist of things to reviewin Safety TalkVideosWebsite4/22/2013 Professional Paddlesports Association 81
  82. 82. The farther the guests is from home the sooner the better.The longer the trip, the sooner the better.The greater the risk, the sooner the better.The more expensive, the sooner the better.4/22/2013 Professional Paddlesports Association 82
  83. 83. Assumption of the Risk4/22/2013 Professional Paddlesports Association 83
  84. 84. 4/22/2013 Professional Paddlesports Association 84
  85. 85. Work in the Grand Canyon asa GuideWorked for OARS, COBS,NOLS and forty other rivercompanies since 1990Guide on Orizaba,Aconcagua4/22/2013 Professional Paddlesports Association 85
  86. 86. Hummel v. Ski Shawnee, Inc2006 PA Super 159; 902 A.2d1266; 2006 Pa. Super. LEXIS1547PA Supreme CourtTubing CaseAnalysis at:http://www.snewsnet.com/cgi-4/22/2013 Professional Paddlesports Association 86
  87. 87. The back of a lift ticket is nota contractThe back of a lift ticket is notproof of assumption of theriskFor a contract to exist bothparties must know of a4/22/2013 Professional Paddlesports Association 87
  88. 88. Capri, v. L.A. FitnessInternational, LLC, 136 Cal.App. 4th 1078; 39 Cal. Rptr. 3d425; 2006 Cal. App. LEXIS 201;2006 Daily Journal DAR 1900California Appellate CourtFitness Club Slip and FallAnalysis:http://www.snewsnet.com/cgi-bin/snews/06990.html4/22/2013 Professional Paddlesports Association 88
  89. 89. Negligence Per Se voids releasesNegligence Per Se can be based onState Law or County LawAction that violated the law can befound post accident4/22/2013 Professional Paddlesports Association 89
  90. 90. Gershon v. Regency DivingCenter, Inc, 368 N.J. Super.237; 845 A.2d 720; 2004 N.J.Super. LEXIS 143New Jersey Appellate CourtScuba Diving CaseAnalysis:http://www.snewsnet.com/cgi-4/22/2013 Professional Paddlesports Association 90
  91. 91. Release did not specificallyidentify the heirs of thedeceasedRelease ineffective forpreventing the heirs ofdeceased from suing4/22/2013 Professional Paddlesports Association 91
  92. 92. Khanolkar, v Lakeside BikeRental, Inc., and ArnoldTransit Company, 2006 Mich.App. LEXIS 799Michigan Court of AppealsBike Rental CaseAnalysis:http://www.snewsnet.com/cgi-4/22/2013 Professional Paddlesports Association 92
  93. 93. The Defendant signed therelease without reading itNo defense to not reading arelease if you signed itChain coming off rental bikeis not a cause of action4/22/2013 Professional Paddlesports Association 93
  94. 94. USFS has reclassifiedcollege and universityprograms to commercialoutfitters requiring permits,insurance, indemnificationand feeshttp://www.snewsnet.com/cgi-bin/snews/05312.html4/22/2013 Professional Paddlesports Association 94
  95. 95. New Hampshire &Connecticut amended theirstate skier safety actsColorado amended its stateskier act.No longer allowed to ski drunk4/22/2013 Professional Paddlesports Association 95
  96. 96. Vermont has decided tocharge for search and rescueof out of bound skiers4/22/2013 Professional Paddlesports Association 96
  97. 97. Hanks v. Powder RidgeRestaurant Corporation et al.276 Conn. 314, 2005 Conn.LEXIS 500Connecticut Supreme CourtTubingAnalysis:http://www.snewsnet.com/cgi-4/22/2013 Professional Paddlesports Association 97
  98. 98. Releases place the burden ofpaying for injured citizens onthe publicReleases now violate publicpolicy4/22/2013 Professional Paddlesports Association 98
  99. 99. Reardon v. WindsweptFarm, LLC, Et Al., 280 Conn.153; 905 A.2d 1156; 2006Conn. LEXIS 330Connecticut Supreme CourtHorseback Riding/Stable4/22/2013 Professional Paddlesports Association 99
  100. 100. No Assumption of the Risk asDefense in ColoradoEquine liability does not protectagainst acts of the house ownerEquine liabilities are still 100% effectiveNo Horse has been sued since the actswere enforcedRelease not effective in equinecaseRelease against public policy in CN4/22/2013 Professional Paddlesports Association 100
  101. 101. MontanaLouisianaVirginiaConnecticutWisconsinPossibly changingWVAZ4/22/2013 Professional Paddlesports Association 101
  102. 102. Colorado – StatuteCalifornia – Supreme Court DecisionOhio – Supreme Court DecisionMassachusetts – Supreme Court DecisionMaybe in the futureFlorida4/22/2013 Professional Paddlesports Association 102
  103. 103. The lowest acceptable level ofdoing or not doing something asdetermined by the Trier of Fact inlitigation4/22/2013 Professional Paddlesports Association 104
  104. 104. Standards are how the industryoperatesStandards are how thecommunity wishes the industrywould operateStandards are how this jurylooks at a set of facts anddetermines whether theDefendant did an adequate jobor did not4/22/2013 Professional Paddlesports Association 105
  105. 105. Standards are how themajority of the industryoperate** Attacking IndustryStandards by GilFried, http://www.snewsnet.com/cg4/22/2013 Professional Paddlesports Association 106
  106. 106. A Standard is themeasurement used todetermine whether you havebreached your duty to thePlaintiffDuty is the first step indetermining whethersomeone is negligent4/22/2013 Professional Paddlesports Association 107
  107. 107. 1. Defendant owes Plaintiff a Duty2. Defendant breaches that Duty toPlaintiff3. Plaintiff suffers an Injury that isProximately Caused by the Breach ofthe Duty4. The Plaintiff has Damages because ofthe InjuryThe Defendant is Liable to the Plaintiffbecause the Defendant was Negligent4/22/2013 Professional Paddlesports Association 108
  108. 108. The standard is the measurementof doing or not doing somethingbelow which determines whetherthere was a breach of a duty tosomeone4/22/2013 Professional Paddlesports Association 109
  109. 109. SAR missions in the west havea minimum of six people2 groups use four people2 groups use eight peopleEveryone else uses six peopleSometimes its an average, butit’s a weighted common sense4/22/2013 Professional Paddlesports Association 110
  110. 110. It doesn’t matter if NSARsays groups should be threeIt does matter if the SARorganization says groupsshould be seven4/22/2013 Professional Paddlesports Association 111
  111. 111. This is the level at which we operateAny time you have a bad day you would breachyour duty to someoneHow you operate should be above the standardand should allow for those days when you are notabove the standardMany Standards created by tradeassociations are written at this level4/22/2013 Professional Paddlesports Association 113
  112. 112. Goals are what you are attempting toachieveGoals are above your current operationallevelGoals are rarely metStandards must always be exceeded!4/22/2013 Professional Paddlesports Association 114
  113. 113. No Committee can create a standardNo Association can create a standardNo Person can create a standard forsomeone else4/22/2013 Professional Paddlesports Association 115
  114. 114. You Talk to other people in yourindustry or associationYou attend association meetings andconferences to find out how otherpeople are doing thingsYou read industry journals andpublications4/22/2013 Professional Paddlesports Association 116
  115. 115. Remember in the definition ofStandards I used the Term “Trier ofFact”The Trier of Fact in a Jury Trial is theJuryThe Trier of Fact in a Trial to the Courtis the judge4/22/2013 Professional Paddlesports Association 118
  116. 116. Until the jury is seated in the jurybox, the Trier of Fact is the JudgeThat means for the 90% oflitigation over an injury and usuallya minimum of 2 years a person thatis under paid and overworked isgoing to rely on the information infront of them that makes sense andis easyMost critical decisions about a4/22/2013 Professional Paddlesports Association 119
  117. 117. The Litigation is controlled by Motions (writtenarguments) and short oral argumentsJudges look for easy ways to hang their hatsJudges look for written documentsJudges are not swayed by Expert WitnessReportsExperts are bought, documents are notJudges read documents labeled Standardsand accept them4/22/2013 Professional Paddlesports Association 120
  118. 118. Written Standards keep Litigation goingLitigation can end if you can prove thestandard was not breached prior to trialThis is easy to do if the standard is based onexpert testimonyIf the standard is extremely low and buyableThat is difficult to do if there is a documentsaying you should not have done what youdid4/22/2013 Professional Paddlesports Association 121
  119. 119. Keep Litigation goingIncrease the cost of settlingForce settlements in cases that couldhave been won4/22/2013 Professional Paddlesports Association 122
  120. 120. The longer a case is litigated the more itcosts the industryThe longer a case is litigated the greaterthe amount of money a case is settled forThe longer a case is litigated the greaterthe chance the defendant will settle4/22/2013 Professional Paddlesports Association 123
  121. 121. You can always find astandard that has beenbroken after an accidentIt is a lot easier if you have abook that lists them such as:ACA standardsACCT StandardsAEE Standards4/22/2013 Professional Paddlesports Association 124
  122. 122. The standard of care for personshaving children entrusted to their carein a summer camp setting is that of areasonably prudent parent.Murawski v. Camp Nageela, 2004 NY SlipOp 51045U; 4 Misc. 3d 1025A; 798N.Y.S.2d 346; 2004 N.Y. Misc. LEXIS 15424/22/2013 Professional Paddlesports Association 126
  123. 123. Plaintiff was a 12 year old Camper at CampWildwoodWhile at a waterfront fireworks display athunderstorm startedThe Plaintiff got separate from the rest of hiscampersWhile the plaintiff was running back to his cabin atree fell on him injuring him*In pending camper injury case, camp may be liable for not adhering to ACAstandards, http://www.snewsnet.com/cgi-bin/snews/02765.html discussing Lesser v.Camp Wildwood, 282 F. Supp. 2d 139; 2003 U.S. Dist. LEXIS 16170, (S.D.N.Y.,Sept. 29, 2003)4/22/2013 Professional Paddlesports Association 127
  124. 124. Camp was an accreditedmember of the AmericanCamping Association (ACA)The ACA “a private non-profitorganization that promulgatesstandards for campsthroughout the UnitedStates.”4/22/2013 Professional Paddlesports Association 128
  125. 125. The camp is required to have proceduresin place for emergency situationsDuring a Thunderstorm counselors will escort allcampers to the gym where a count will be takenThe Camp must have a tree plan:The camps caretaker inspects the bushes andtrees in the active areas of the camp on a dailybasis*It’s a camp in the east, how many people would it take to inspecteach tree and bush daily?4/22/2013 Professional Paddlesports Association 129
  126. 126. Counselors will escort allcampers to the gym where acount will be taken4/22/2013 Professional Paddlesports Association 130
  127. 127. The Court quoted thefollowing in its decision fromthe Plaintiff’s Motions:…….the defendants haverepeatedly claimed that theyhave complied with ACAstandards and that ACA4/22/2013 Professional Paddlesports Association 131
  128. 128. It started to rain. The rain andwind intensified in a very shortperiod of time."All counselors in attendanceimmediately shoutedinstructions to evacuate thebeachfront and seek shelter innearby bunks.“Plaintiff acknowledges havingheard and heeded the shouted4/22/2013 Professional Paddlesports Association 132
  129. 129. Plaintiffs "was lost andconfused and never saw abunk.“While in the Junior Grove,plaintiff was struck and injuredby a falling tree. The trunk ofthe tree snapped approximately15-20 feet from the ground, and4/22/2013 Professional Paddlesports Association 133
  130. 130. The Defendant hadattempted to have the casedismissedHowever the ACA/CampStandards kept the casegoing because the defendanthad violated the standards4/22/2013 Professional Paddlesports Association 134
  131. 131. Adult women was claimingthat 10 or so years ago thedefendant camp allowed aco-defendant counselor whowas 18 to have sex with her.At the time she was 14Defendant male denied actsDefendant camp denied4/22/2013 Professional Paddlesports Association 136
  132. 132. Defendant Camp was anaccredited member of theACAPlaintiff’s Expert listed allof the ACA standards thecamp violatedSome of which had4/22/2013 Professional Paddlesports Association 137
  133. 133. 14 year olds should not be ata CampBecause Plaintiff was under16 she was not supervisedcorrectlyStaff training was deficientCamp failed to keep4/22/2013 Professional Paddlesports Association 138
  134. 134. The shear number of ACAstandards the camp hadviolated when it was anaccredited member of the ACAmust have had an influence onthe judgeIt is impossible to meet allstandardsThe ACA only expects you tomeet a percentage of the4/22/2013 Professional Paddlesports Association 139
  135. 135. The case had been going on for 2.5 yearsCase was within 8 weeks of trialPlaintiff had successfully kept case aliveby arguing, successfully, that ACAstandards had been violated4/22/2013 Professional Paddlesports Association 140
  136. 136. Prove the ACA standards were not theStandards for the IndustryACA only represented a small number ofCamps in the USACA did not represent the BSA, GSA andother large groups that had camps4/22/2013 Professional Paddlesports Association 141
  137. 137. 2 weeks after the ACAstandards were debunkedthe case settled favorablyfor the defendants4/22/2013 Professional Paddlesports Association 142
  138. 138. By finding a set of standardsBy finding standards thatwere close to the injuryA case almost went to trialThe closer you get to trial, themore money you get whenyou settle4/22/2013 Professional Paddlesports Association 143
  139. 139. The definitions about thestandards in the book ofstandards is controllingThe definitions created by theCourts controls the definition ofStandards in the IndustryIf a word all ready has a legaldefinition then that definition isapplied, no matter what the4/22/2013 Professional Paddlesports Association 145
  140. 140. Association of ChallengeCourse Technology currentlyhas a standard for use ofhelmets for kidsAmerican Camping Associationcurrently has a standard for useof helmets for kidsClimbing Gym Associationcurrently has a standard for use4/22/2013 Professional Paddlesports Association 147
  141. 141. ACA Standard, ACA writes standards forCampsACCT Standard, ACCT writes standards forpeople under ropes coursesCWGA writes standards for climbing walls4/22/2013 Professional Paddlesports Association 149
  142. 142. The Standard that helps theplaintiff the most4/22/2013 Professional Paddlesports Association 150
  143. 143. Do you think the Plaintiff isproviding the entire book ofstandards to the judge so thejudge can realize the standardused applies to camps notropes course?Or is the plaintiff providing thejudge only reading the onepage that has the standard that4/22/2013 Professional Paddlesports Association 151
  144. 144. The judge cares if the booksays only for ropes coursesWhen the accident occurredon a ropes course at a campAnd the camp standard wasviolated4/22/2013 Professional Paddlesports Association 152
  145. 145. Do you think the judge isgoing to apply the restrictivedefinitions in the standardbook or the broad definitionthe law uses?4/22/2013 Professional Paddlesports Association 153
  146. 146. Only if you destroy everycopy of the bookThe Trial Attorneys collectthem and keep themavailableYou can rent them from trialattorneys4/22/2013 Professional Paddlesports Association 155
  147. 147. Most organizations creating standards are puttingout new standards every four yearsRemember Kevlar on climbing pro in the late 80’sWe all put Kevlar on our gearKevlar was badKevlar was goodNo one uses Kevlar any moreThis all occurred in 18 monthsWhat if you wrote a standard at the wrong time,for four more years the wrong standard is outthere4/22/2013 Professional Paddlesports Association 157
  148. 148. If Standards were easy to keepcurrent, why is there anInternational Technical RescueSymposium every year?4/22/2013 Professional Paddlesports Association 158
  149. 149. Standards work for things that areMeasurable within a specific set ofparameters every time within a knownrangeHardnessTensile StrengthStretchHumans do not fitKermantle rope, belay devices do fit4/22/2013 Professional Paddlesports Association 160
  150. 150. If you create them you must live with themIf you create them you understand them*If you create them you can train to themIf you create them you can change them*Versus meeting the Standards to get the“Gold Seal of Approval”4/22/2013 Professional Paddlesports Association 161
  151. 151. Standards are created to helpBut they end up in litigationas a Trap to capture and holdthe defendantCreated Standards limit thedefendants options until trialCreated Standards keep4/22/2013 Professional Paddlesports Association 162
  152. 152. Marketing ProgramsIgnoranceBelieve that they can make the industry betterDesire to increase lawsuits in the industryBelief that consensus is better than industryreviewBelief that the standards can be limited in theirscope4/22/2013 Professional Paddlesports Association 163
  153. 153. Our Standards are voluntaryThere is only one right way todo thingsWe don’t create liability forcreating standards, we limitliability – for our association4/22/2013 Professional Paddlesports Association 164
  154. 154. The Good House KeepingSeal of Approval forClimbing GymsCampsOutdoor ProgramsRopes CoursesMarketing Starts Lawsuits –4/22/2013 Professional Paddlesports Association 165
  155. 155. By saying I meet therequirement the world knows Iam safeParents know that we are agood programTo be a top tier member of mytrade association I must meetthe standardsI want that Seal of Approval on4/22/2013 Professional Paddlesports Association 166
  156. 156. Some organizations just don’tunderstand the legal issues4/22/2013 Professional Paddlesports Association 167
  157. 157. There is a pervasive belief that writingstandards will make the bad companies getgood1. Bad Companies get better whenforced, not when suggested- I know, I represent a lot of bad companies – incourt2. Lawsuits don’t make anyone get betterand they only hurt everyone4/22/2013 Professional Paddlesports Association 168
  158. 158. Many people on ASTMcommittees are expertwitnesses for plaintiffsMany people writingstandards make their living asExpert Witnesses4/22/2013 Professional Paddlesports Association 169
  159. 159. However they never get a consensusbecause they only agree amongthemselvesThey don’t get a consensus, they negotiatecompromise4/22/2013 Professional Paddlesports Association 170
  160. 160. It just doesn’t workIf its close it will be applied by theplaintiff4/22/2013 Professional Paddlesports Association 171
  161. 161. You are the defendant in frontof a juryThe plaintiff says did you meetthe standards?You say no, they werevoluntaryJury goes, cheap @## killedthat personIt doesn’t matter what word you4/22/2013 Professional Paddlesports Association 172
  162. 162. 4/22/2013 Professional Paddlesports Association 173
  163. 163. In Re Factor VIII or IX Concentrate BloodProducts Litigation. See also Snyder v.American Assn of Blood BanksWeigand v. University Hospital of New YorkUniversity Medical CenterN.N.V. v. American Association of Blood Banks,Hempstead v. General Fire Extinguisher Corp.,4/22/2013 Professional Paddlesports Association 174
  164. 164. When you can meet all of thecriteria for HowWhen you have the money topay someone to follow thelaw and the industry4/22/2013 Professional Paddlesports Association 176
  165. 165. A standard that is not easilyunderstandable ends up inthe expert witness realmThe side that hires the expertwitness the jury understandsand likes wins4/22/2013 Professional Paddlesports Association 177
  166. 166. Time is not on anyone’s sideswith standards.Until you have as manypeople writing standards andkeep them up to date as youdo creating new things andways to do things you will bebehind4/22/2013 Professional Paddlesports Association 178
  167. 167. They are supposed to helpnot hinderThey are supposed to put afloor in for a group to relyupon, not test themThey are supposed to createreliability, not rigidity4/22/2013 Professional Paddlesports Association 179
  168. 168. You require that all groupsmust be incorporatedWho checks this?Is it done yearly?What about LLC’sWhy do you care?What has that got to do withanything!4/22/2013 Professional Paddlesports Association 180
  169. 169. Why do you care if anothergroup is incorporated?What do you care about thesexual makeup of the group?What do you care about theexperience of the group?4/22/2013 Professional Paddlesports Association 181
  170. 170. This 2010 PowerPoint contains video animation whichsupport text over the top of it. The PowerPoint 2007 versionincludes video animation, but does not support text on topof the video. The 2003 version does not support video.All the elements can be modified or removed.Static versions of alllayouts are alsoavailable.4/22/2013 Professional Paddlesports Association 182
  171. 171. You can changebetween static andanimated layouts byclicking on the Layouttab in the HOME menuon the ribbon.4/22/2013 Professional Paddlesports Association 183
  172. 172. 4/22/2013 Professional Paddlesports Association 184
  173. 173. Discussion Item Three – A Placeholder for text Adda second line of text hereDiscussion Item One – A Placeholder for text Add asecond line of text hereDiscussion Item Two – A Placeholder for text Add asecond line of text hereDiscussion Item Four – A Placeholder for text Adda second line of text hereA second line of text could go hereProfessional Paddlesports Association 185
  174. 174. 0 2 4 6Category 1Category 2Category 3Category 4Axis TitleChart TitleSeries 3 Series 2 Series 1Here is the description ofthe graph. This chart isenhanced with features fromPowerPoint 2007 or higher.Here is some more text.You may delete thegraphical elements.4/22/2013 Professional Paddlesports Association 186
  175. 175. 0%20%40%60%80%100%4.32.5 3.5 4.52.44.4 1.8 2.82 2 3 5Series 1 Series 2 Series 3Here is the description ofthe graph. This chart isenhanced with features fromPowerPoint 2007 or higher.Here is some more text.You may delete thegraphical elements.4/22/2013 Professional Paddlesports Association 187
  176. 176. Here is the description ofthe graph. This chart isenhanced with features fromPowerPoint 2007 or higher.Here is some more text.You may delete thegraphical elements.GeographicRegionQ1 Q2 Q3 Q4United States 1254 1254 1254 1254Europe andAsia324 324 324 324Australia 32 32 32 32SouthAmerica2 2 2 2Canada 1 1 1 1Mexico 1 1 1 1TOTALS 1614 1614 1614 16144/22/2013 Professional Paddlesports Association 188
  177. 177. 58%23%10%9%Pie Chart1st Qtr 2nd Qtr 3rd Qtr 4th QtrThis is a PowerPoint 2007or higher enhanced graph.You may change this graphas you wish.This chart utilizes featuresavailable in PowerPoint2007 or higher.*note* Right Click on Pie Chart to Change ChartType.4/22/2013 Professional Paddlesports Association 189
  178. 178. Quarterly Sales1st Qtr2nd Qtr3rd Qtr4th QtrThis is a PowerPoint 97higher compatible graph.You may change this graphas you wish.This chart can be modifiedin all versions ofPowerPoint.4/22/2013 Professional Paddlesports Association 190
  179. 179. Your Sub Title HereThis is a place holder for item one. Itemone can be text, apicture, graph, table, etc. This is a placeholder for item one. Item one can betext, a picture, graph, table, etc.All the graphical elements can bemoved, copied, or deleted from the slidemaster view.4/22/2013 Professional Paddlesports Association 191
  180. 180. Stage 1• Second level of text here• Second level of text here• Second level of text hereThis chart utilizes Smart Artwhich is feature inPowerPoint 2007 or higher.If you wish to make chartslike this and don’t have PPT2007, we have provided thegraphical elements to helpyou build this yourself.4/22/2013 Professional Paddlesports Association 192
  181. 181. Step 4Supporting Text HereStep 3Supporting Text HereStep 2Add Supporting Text HereStep 1Add Supporting Text HereThis chart utilizes Smart Artwhich is feature inPowerPoint 2007 or higher.If you wish to make chartslike this and don’t have PPT2007, we have provided thegraphical elements to helpyou build this yourself.4/22/2013 Professional Paddlesports Association 193
  182. 182. You can add a description of the picture here.In PPT 2007 or newer, this is a custom layout and can be modifiedunder the slide master view.4/22/2013 Professional Paddlesports Association 194
  183. 183. A description of the first picture. Youmay change this text.A description of the second picture.You may change this text.A description of the third picture. Youmay change this text.Professional Paddlesports Association 195
  184. 184. A placeholder for the caption underthe second picture. You maydelete or change this text asnecessary.A placeholder for the captionunder the first picture. You maydelete or change this text asnecessary.Professional Paddlesports Association 196
  185. 185. PresenterMedia.com4416 S. Technology DrSioux Falls, SD 57106(605) 274-2424We are happy to helpyou!Professional Paddlesports Association 197

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