rocky mountain lift association 2009: risk management: understanding the big picture and conveying...
TRANSCRIPT
Risk ManagementRisk ManagementUnderstanding the Big Picture and Conveying it to Your Staff will Mitigate Exposure
Understanding the Big Picture and Conveying it to Your Staff will Mitigate Exposure
DisclaimerDisclaimer
All legal advice by it’s very nature is subject to change and the laws of each state. All legal advice requires a
review by your local attorney.
RealityReality
• 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 probably going to lose
James H. Moss, J.D.James H. Moss, J.D.
• OSU Environmental Interpretation• Capital Law School, J.D.• 500 Clients in Outdoor Recreation
Field– Individuals to Organizations– Concessionaires & Permittees– Manufactures to Retailers
Trials (in the past)Trials (in the past)
• Whitewater Rafting Companies• Snow Mobiles• Ropes Course• Canoe Liveries• Climbing Gyms• Land owners
Adjunct InstructorAdjunct Instructor
Ski Area Operations Risk Management
Author: Rec-Law.blogspot.comAuthor: Rec-Law.blogspot.com
Member of UIAA Safety CommitteeMember of UIAA Safety Committee
• Union Internationale Des Associations D’Alpinisme (International Mountaineering and Climbing Federation)– European Union Organization creating
standards for Rock Climbing, Mountaineering, Ice Climbing and Ski Mountaineering equipment
Professional ResponsibilityProfessional Responsibility
• My job to inform• Your job to figure out what you want
to do with it• Your job on how to integrate with
your Risk Management Program, Your Insurance and Your Legal Counsel
Risk ManagementRisk ManagementUnderstanding the Big Picture and Conveying it to Your Staff will Mitigate Exposure
Understanding the Big Picture and Conveying it to Your Staff will Mitigate Exposure
Risk ManagementRisk Management
Risk Management is not reactive
Risk Management to be effective is pro-active
Reactive Risk ManagementReactive Risk Management
•Deals with–Claims–Litigation–Angry guests–Attorneys & Litigation
Pro-active Risk ManagementPro-active Risk Management
•Helps Guests–Understand–Heal–Come back–Leave Happy
Anyone can be Pro-active Risk ManagementAnyone can be Pro-active Risk Management
•Anyone can Help Guests–Understand–Heal–Come back–Leave Happy
Risk ManagementRisk Management
• In advance• It is not
–Disaster Management
When you manageWhen you manage
• You keep it from getting out of control
• You keep it from going wrong• You keep it from screwing up• You keep it from becoming a
problem.
Why does an employee need to understand risk management
Why does an employee need to understand risk management
• Hierarchy of mistakes/ problems that result in accidents
• Those mistakes also lead to the emotional issues that create lawsuits
Argument
with
Spouse
Bad Day on the SlopesBad Day on the Slopes
Felt
Breakfast
was $$
Argument
with
Spouse
Bad Day on the SlopesBad Day on the Slopes
Felt
Breakfast
was $$
Argument
with
Spouse
Bad Day on the SlopesBad Day on the Slopes
Binding
Set
Wrong
Felt
Breakfast
was $$
Argument
with
Spouse
Got on
Wrong
Run & Fell
Hard
Bad Day on the SlopesBad Day on the Slopes
Binding
Set
Wrong
Fall
Unloading
Lift
Felt
Breakfast
was $$
Argument
with
Spouse
Got on
Wrong
Run & Fell
Hard
Bad Day on the SlopesBad Day on the Slopes
Binding
Set
Wrong
Fall
Unloading
Lift
Lawsuit
Felt
Breakfast
was $$
Argument
with
Spouse
Got on
Wrong
Run & Fell
Hard
Bad Day on the SlopesBad Day on the Slopes
Binding
Set
Wrong
Fall
Unloading
Lift
Lawsuit
Felt
Breakfast
was $$
Argument
with
Spouse
Got on
Wrong
Run & Fell
Hard
Bad Day on the SlopesBad Day on the Slopes
Binding
Set
Wrong
It is not one thing, it i
s always many
It is the thing that It is the thing that
• Makes them the maddest• Last the longest• Cost more than they want
Bad Day on the SlopesBad Day on the Slopes
The series of “problems can occur post accident also.
FallUnloading
Lift
Bad Day on the Slopes
FallUnloading
Lift
Clinic Busy20 Min
Till Seen
Bad Day on the Slopes
FallUnloading
Lift
Clinic Busy20 Min
Till Seen
TransportedTo
Denver
Bad Day on the Slopes
FallUnloading
Lift
Clinic Busy20 Min
Till Seen
TransportedTo
Denver CellPhoneLeft inRoom
Bad Day on the Slopes
Can’t Tell Wife how to Find him or get him back
to Resort
FallUnloading
Lift
Clinic Busy20 Min
Till Seen
TransportedTo
Denver CellPhoneLeft inRoom
Bad Day on the Slopes
Can’t Tell Wife how to Find him or get him back
to Resort
FallUnloading
Lift
Clinic Busy20 Min
Till Seen
TransportedTo
Denver CellPhoneLeft inRoom
Lawsuit
Bad Day on the Slopes
Happy Guest Mad Guest
Returning Guest Plaintiff
FallUnloading
Lift
Clinic Busy20 Min
Till Seen
TransportedTo
Denver
CellPhoneLeft inRoom
Can’tCall
Happy Guest Mad Guest
Returning Guest Plaintiff
FallUnloading
Lift
Clinic Busy20 Min
Till Seen
TransportedTo
Denver
CellPhoneLeft inRoom
Can’tCall
Happy GuestReturning Guest
FallUnloading
Lift
Clinic Busy20 Min
Till Seen
TransportedTo
Denver
CellPhoneLeft inRoom
Can’tCall
Good Employee Experience
How Do You Deal with These IssuesHow Do You Deal with These Issues
1. Educate Your Employees1. Educate Your Employees
How can your employees stop litigationHow can your employees stop litigation
Your Employees Must
• Know the law• Understand risk management• Understand Customer service• Be customer service
Colorado Skier Safety Act is EasyColorado Skier Safety Act is Easy
• If your employees understand the Act
– They can answer questions without fear
– They can help guests understand the issues
– Employees feel more comfortable dealing with guests
ExampleExample
• Guest is angry because of “hit and run” accident
• Your employee is first on the scene – did not witness the accident
• Guest is angry at employee for not capturing/arresting person who hit him
Employee is in situation where more knowledge would provide more relief for guest than “what?” “huh?” and sorry.
Knowledge of the lawKnowledge of the law
• CSSA states it is not the responsibility of the resort to capture catch “hit and runs”
• Illegal for employee (unless witnessed) to do anything
• Most resort can do is yank lift ticket• Employee can radio down hill with good
description• Help is on the way
Employee with knowledgeEmployee with knowledge
• Understand anger of guest• Listen and respond properly• Honestly answer questions rather
than fending off questions or dodging questions
• Guest will realize employee did the legal thing, the right thing
Knowledge of the CSSA Means?Knowledge of the CSSA Means?
• Inherent dangers and risks of skiing" • Duties of passengers• Duties of operators – signs• Duties of ski area operators - signs and notices
required for skiers' information• WARNING – Under Colorado Law• Each skier shall stay clear of snow-grooming
equipment,….• Before beginning to ski from a stationary
position or before entering a ski slope or trail from the side…..
Knowledge of the CSSA Means?Knowledge of the CSSA Means?
• No person shall …. while such person's ability to do so is impaired by the consumption of alcohol or by the use of any controlled substance
• No skier involved in a collision with another skier ….• All snowmobiles ….• The ski area operator, upon finding a person skiing in a
careless and reckless manner, may revoke ….• The ski area operator shall mark hydrants, water pipes,
and all other man-made structures ….
Employees won’t just pass the BuckEmployees won’t just pass the Buck
If they understand the CSSA they can be effectiveIf they understand the CSSA they can be effective
WhyWhy
• Guests know “parts” of the CSSA–Usually the wrong parts
• Your employees need self confidence to deal with half-knowledge–Knowledge inspires confidence
How does more education & training help you?How does more education & training help you?
• If an employee understands why– it is easier to do
• If an employee understands the results– it is easier to do
• If an employee can understand the reward– it is easier to do
The more you employee understands the law and risk managementThe more you employee understands the law and risk management
• The easier it is for your employee to get the “job” done
• The more effective your employee• The greater the chances your
employee will stick around or move up
Back to Bad Day IBack to Bad Day IA knowledgeable employee canA knowledgeable employee can
Solving the problem at its source is more effectiveSolving the problem at its source is more effective
• Correct the binding problem• Assist off the wrong trail• Argument with Spouse (If you have a
solution, let us all know!)• Breakfast, relay the concerns, get a
name & contact info
If Nothing Else Just Listen
And if necessary answer with a correct answer
And if necessary answer with a correct answer
How Do You Deal with These IssuesHow Do You Deal with These Issues
2. Empower your employees2. Empower your employees
If an Employee is ComfortableIf an Employee is Comfortable
• They are more likely to act• They will act in a positive
manner• They will solve the problems
Example: Ski PatrolExample: Ski Patrol
I Spoke at the Annual Ski Patrol Training meeting
I had 9 months working with the patrol
I simply told them to solve the problem and I would pay for it
I wrote one check that year for $100
because a patroller told me too……
The Patrollers KnewThe Patrollers Knew
• They had the Power to Act• They knew I was behind them• They knew no matter what I would
back them up
And I did and they did
An Employee whoAn Employee who
• Knows what they are to do• Knows how to react• Knows the issues
Can solve problems before they get to litigation
How Do You Deal with These IssuesHow Do You Deal with These Issues
3. Educate, Train and Prepare3. Educate, Train and Prepare
How do you get Education & TrainingHow do you get Education & Training
• Attend your conferences• Attend in-house training• Attend Outside training
ConferencesConferences
At Conferences You & Employees learn
• New Ideas• Where is the standard• What is everyone else doing
RMLA is invaluableRMLA is invaluable
• You Learn–new techniques–You Learn bad techniques–You Learn what works and what
doesn’t work–Share ideas–Understand where things are going
In-house trainingIn-house training
• Completes OSHA requirements• Provides for feedback• Keeps everyone on the same page
Inside or Outside TrainersInside or Outside Trainers
• You can teach your staff
• Hire the manufacturers of you equipment– Make it part of the purchase
• Not just how to when purchased but continual
• Hire Outside Trainers
In-house trainingIn-house training
• 15 minutes a week• Latest problems
– Knowledge shared rather than constantly asking you
• Assign an employee something to teach– You Teach something you learn it
• You all learn it
Outside TrainingOutside Training
Ski Area Operations Risk Management
How Does CMC SAO Risk Management Work
How Does CMC SAO Risk Management Work
ClassroomDiscussion
Weeks Lessons
TextReading
Issues toBe
Covered
CaseLaw
OutsideReading
Classroom
ModeratedStudent
Discussions
Weeks Lessons
TextReading
Issues toBe
Covered
CaseLaw
OutsideReading
Online Class
ExampleExample
Issues to be CoveredIssues to be Covered
• Week 7 Legal Defenses– Assumption of Risk – Contributory Negligence – Releases/Waivers/Covenants not to
sue – Read from the Book: – Releases– Other Issues That Assist in a
Defense– Legal Defense Clauses
Outside Reading: Moss MaximOutside Reading: Moss Maxim
7 Mistakes Made by People who are called Defendant
1. Hire and retain Uncaring Employees
2. Failing Know Your Customers and why they are buying from you.
3. Failing to Treat Your Customers the Way They Want to Be Treated:
4. Examining the problem from Your Perspective
5. Placing a ridiculous value on principles and pride. Principles & Pride Goethe Before a Lawsuit
6. Never know Why you are being sued
7. Forgetting What Your Mother Taught You© James H. Moss 2003
A Victim is:A Victim is:
• Anyone who was bleeding, unconscious or in pain• Anyone related to the above• Anyone who was with the above• Anyone who saw any blood or pain• Any guest who heard about the incident• All Employees• Outside sources who responded to the incident
Remember: A Victim was originally a guest of your business
© James H. Moss 2002
Chapter 14: Specific Activity Risks Chapter 14: Specific Activity Risks
• Specific Occupational Risks– Indoor Climbing Walls– Instructional Programs– Mountaineering– Retail Rental Programs– Rock Climbing– Whitewater Rafting
Chapter 15: Skiing and Ski AreasChapter 15: Skiing and Ski Areas
• Downhill Skiing– Ski Rental Programs– Tubing Hills
Text ReadingText Reading
SKIING AND SKI AREAS
Skiing has been a commercial operation since the thirties and had its first lawsuit in the early 1950’s (Wright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524). Because of the length of time skiing has been a popular sport, the size and number of people skiing, the severity of the accidents and the number of accidents that occur, skiing has a long history of claims and litigation.
Why the lawsuits in skiingMost recreational activities are judged against all other activities to determine an activities level of danger. That level of danger is also evaluated against the need of the participant to engage in the activity. There is no need to ski, or do any other recreational activity from a legal perspective. Need is used to identify such things as food, warmth, electricity, public transportation.
Case Law StudiedCase Law Studied
Bayer v. Crested Butte Mountain Resort
, 960 P.2d 70 (Colo. 1998)
Highest standard of care is owed to people riding the lift.
Online classOnline class
• Discussion: The Colorado Skier Safety act is the most important legal issue for Colorado Ski Areas. The act requires the resorts to do some things and skiers to do some things. Discuss whether you think the act protects the Colorado Ski Areas or skiers? What parts of the act protect the skier? What parts protect the ski area?
Online DiscussionOnline Discussion
Find another states ski safety act and tell us if that act is better protection for the ski areas than Colorado's?
Additional Case Law to ReadAdditional Case Law to Read
• Pizza v. Wolf Creek Ski Development Corp., 711 P.2d 671 (Colo. 1985)
• Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991)
SAO teaches Employees to Stay CurrentSAO teaches Employees to Stay Current
• Current in the Risk Management Issues & Law
• Current in Insurance Issues• Current in Techniques• Current in Equipment
Have your employees enroll in CMC’s SAO Program
Have your employees enroll in CMC’s SAO Program
SAO 110 Risk Management!!!!SAO 110 Risk Management!!!!
Additional BenefitsAdditional Benefits
• Reports are written correctly• Post incident reviews are easier• Testimony if needed is done
correctly• Happy Guests don’t sue
Reports are written correctlyReports are written correctly
• Only Facts are written down• Knowledge makes remembering
easier• No opinions are provided
– That can later lead to problems
Post incident reviews are easierPost incident reviews are easier
• Either with you or Risk Management– Exact statements can be
remembered because of the training received
– Specific issues asked will be remembered because specific answers were given
Testimony if needed is done correctlyTestimony if needed is done correctly
• If in a Deposition or on the Stand– No worry because employee
understood the law and provided good info to the guest
– No snakebites because reports and reviews post incident were done correctly
Happy Guests don’t sueHappy Guests don’t sue
• If the guests questions are answered they have no reason to be angry– It angers guests when they have to deal with a
dozen people to get answers– It angers guests when they can’t get an answer– It angers guests when the ski area does not want
to answer questions
ExampleExample
• You are at work and you get a call from a spouse, your young child was injured at summer camp
• You rush home, pick up spouse and rush to hospital. Child is OK
• You ask child what happened• Child says I don’t know, I was playing and then
I got hurt
What HappenedWhat Happened
• You ask the camp counselor that is with child at the hospital and their response is “I don’t know” I wasn’t there.
• You are told if you want an answer you have to send a letter to the risk manager describing the incident with the date and then the risk manager will send you any reports
Take the Same Exact ScenarioTake the Same Exact Scenario
• But replace Camp with Ski Area• Replace I was playing with I was
riding the lift
At what point are you going to go nuts?At what point are you going to go nuts?
• Do you believe any parent will not go to hell and back to find out what happened to their child?
• How mad do you think that will make a parent?
Or maybe, at what point are you going to get mad and ask for help in
finding out – help meaning a lawyer?
VersusVersus
• Based on what the other kids said, they were running around after breakfast and he tripped on a tree trunk
• Based on what the other people said behind him on the lift, the kids were fooling around on the lift as they were getting off and he slid off before the unloading zone
An Educated EmployeeAn Educated Employee
• Does not instill fear in Risk Management in their ability to answer questions– Or create a lawsuit
Bonus RoundBonus Round
If you have a fire at your resort on USFS Land who is in charge?
If you have a fire at your resort on USFS Land who is in charge?
Probably A Graduate of SAO 110Probably A Graduate of SAO 110
Not the GM
Not the employee’s bosses
According to USFS the person with the highest level of ICS Training is in charge
Graduates of SAO 110 are ICS Level 100Graduates of SAO 110 are ICS Level 100
If there are no other ICS trained people at the scene, the highest level of ICS level who is on the scene first is in charge of the scene
ICSICS
• Incident Command System– Is a standardized, on-scene, all-hazard
incident management concept. – Allows its users to adopt an integrated
organizational structure to match the complexities and demands of single or multiple incidents without being hindered by jurisdictional boundaries.
Graduates of SAO 110Graduates of SAO 110
• Have completed ICS 100– The first level of ICS training
• This training is necessary according to the USFS to be part of the incident and in some cases receive information other than press releases about the incident
Don’t WorryDon’t Worry
They are also taught that exercising their ICS 100 incorrectly may make them an un-employed person in charge of a fire!
Questions?Questions?
Thank you!Thank you!