waiver forms for organized hikes

[cragger]

I hear you; and I don't doubt the statistic. And I find it very unfortunate that it has come down to requiring waivers.

Unfortunatley the insurance company still requires a waiver. And many people aren't going to risk their net worth to lead a trip just because its never happened. They know that once upon a time nobody had ever sured McDonalds when they spilled coffee in their lap and it was hot. And once upon a time nobody had ever flown a plane intothe WTC. People know that things happen that they could never before contemplate. So getting sued for leading a wilderness trip isn't so far fetched in their minds. And while they may not have the assets of McDonalds the potential, however small, of losing their house is a pretty scary thought. History is not reality - perception is reality. The AMC would prefer not to have to require waivers - its just the reality of the world we live in today.

 

[David Metsky]

They know that once upon a time nobody had ever sured McDonalds when they spilled coffee in their lap and it was hot.

Just to pass on some info, the McDonalds coffee suit was justified and she won for a good reason. McD's was negligent, they knew they were dangerous and chose not to do anything about it, then they were unethical in their efforts to fight the suit. You can't blame lawsuit happy people for this one.
Link 1
Link 2
Link 3

Sorry for the hijack. Please continue.

-dave-

 

[Rick]

I know I am coming onto this thread late, but as an ADK tripleader for the past decade, as well as an AMC tripleader for the past several years, I have always used a release/waiver form. The AMC chapter I am affiliated with had made this a requirement and my ADK chapter also made this a requirement long ago (and no I am not compensated in either situation, except in collecting gas money to share expenses).
I have never, ever had anyone balk at signing a release/waiver - In fact, it helps me because as I see everyone sign, I can better remember the names of the folks I hadn't yet met (such as screening on paper or over the phone).
I beleive for hikes that are classified as show n' gos, meet, greet & beat feet, or whatever you want to call them, the releases are an absolute necessity, as your chance to screen is virtually nill.

Finally, there is always the volunteer protection act of 1997 (IIRC) that staves off lawsuits against those acting in a volunteer capacity for a Non-Profit organization - I am sure there is someone out ther that can better explain this act.

 

[Ann]

Am I missing something here or what?
A waiver for the AMC might help "protect" the AMC's assets and potential liability but I cannot understand HOW it would potentially prevent a trip leader from a lawsuit. In fact the exact wording, about 2/3 of the way down the waiver is: "I agree not to sue the AMC." It certainly appears that the AMC has done what ever they can to cover their own butts and to appease the insurance requirements, however, can someone enlighten me as to HOW the wording ALSO protects the trip leaders...because I don't see that ANYWHERE In the wording of that waiver!!!!!

 

[Rick]

Hi Ann -
Hope you are doing well. Haven't PM in a long time.

As for the AMC, I don't think wording is necessary, I looked up the Volunteer Protection Act last night VPA of 1997 and I think anytyhing the AMC could write about protecting a tripleader would be subordinate to the federal law.

Excerpt of PL 105-19:

SEC. 4. LIMITATION ON LIABILITY FOR VOLUNTEERS.
(a) LIABILITY PROTECTION FOR VOLUNTEERS- Except as provided in
subsections (b) and (d), no volunteer of a nonprofit organization
or governmental entity shall be liable for harm caused by an act or
omission of the volunteer on behalf of the organization or entity
if--
(1) the volunteer was acting within the scope of the
volunteer's responsibilities in the nonprofit organization or
governmental entity at the time of the act or omission;
(2) if appropriate or required, the volunteer was properly
licensed, certified, or authorized by the appropriate
authorities for the activities or practice in the State in
which the harm occurred, where the activities were or practice
was undertaken within the scope of the volunteer's
responsibilities in the nonprofit organization or governmental
entity;
(3) the harm was not caused by willful or criminal
misconduct, gross negligence, reckless misconduct, or a
conscious, flagrant indifference to the rights or safety of the
individual harmed by the volunteer; and
(4) the harm was not caused by the volunteer operating a
motor vehicle, vessel, aircraft, or other vehicle for which the
State requires the operator or the owner of the vehicle, craft,
or vessel to--
(A) possess an operator's license; or
(B) maintain insurance.

Now, if as a tripleader, you deviated from the plan and hiked somewhere where you had never been in the middle of the night with no headlamps and led folks over a cliff, I think you have Gross Negligence on the part of the trip leader and the Act no longer applies.


Rick

 

[Peakbagr]

The ADK determined that the exculpatory releases(waivers) erect an extra barrier against a lawsuit. To take care of suits against leaders, the "named insured" section of ADK's liability policy specifically includes all volunteers and trips leaders as insured's under ADK's policy. With that, there is the Club's full protection for judgements and defense costs standing behind all volunteers.
And please let me reiterate - ADK has been around for over 3/4's of a century, with chapters all over the northeast and very busy outing schedules. Over the decades, there has NEVER been a suit brought against a leader. That is not to say it can't happen, but the numbers suggest otherwise.
Personally, you probably have more liability as a volunteer handing out campaign leaflets or spilling hot gravy on someone in a restaurant.

 

[scree flinger]

"Personally, you probably have more liability as a volunteer handing out campaign leaflets or spilling hot gravy on someone in a restaurant"

Stop & think of the inherint dangers of "hiking". So many varibles are out of your control. As a former hunting & fishing guide in NYS, liability was a major factor I turned my back on doing business in NYS.

All it requires is one person taking one wrong step and the potential for serious injury & death can happen in an instant.

When that happens most of the time a loved one gets angry and contacts an attorney. Yes, your right that a waiver, taking specific training, and being very saftey concscious stops most people from filing a law suit, howeverNOTHING prevents bringing a lawsuit. While your waiting to get before a judge to get the suit thrown out, your spending thousands and thousands of dollars preparing your defense plus disruping your life and serenity.

If you lead a hike 99% of the time you have nothing to worry about, but you never can prevent that 1% of people determined to sue when the unpredictable happens.

 

[Peakbagr]

Actually, its not 1%, so far, its 0% in 75+ years.

Also, its probably not a fair comparison to compare an individual guide's experience with that of an outing club with 40,000 members. A large outing Club has large financial resources and dues-base to afford large liability limits. Furthermore, from a legal standpoint, your responsibility as a professional guide, accepting money to guide someone imposes a much larger burden of responsibility than a volunteer hike leader. There are higher expectations of someone leading for money.

IMHO its apples and oranges and not a valid comparison.

 

[scree flinger]

The connection is that NO MATTER if money is exchanged or not there exists a POTENTIAL to be sued. So far it's been 0%, but all it takes is one time. It's not a matter of if but when some will sue over an accident. M ore and more people are hiking and eventually it WILL happen. Yes, it may be remote and yes you may have a large liability policy but NOTHING prevents anybody from being sued and if you leading a hiking group you are NOT immune from being sued personally.
Lastly, money is being exchanged if you pay a membership fee to join a club.

 

[Peakbagr]

Actually, the paying of dues is not considered remuneration for trip leaders and this concept has been court tested.
You are correct that anything MIGHT happen. The numbers and statistics don't support it as anything that is even remotely likely to happen. If someone doesn't want to lead trips, that is their business. I get concerned when this opinion, taken to an extreme, might lead others to fear a worse-case scenario.

 

[escapee]

liability releases

I have been leading ADK chapter outings for over 10 years, using chapter-required releases the whole time. I can understand why an organization like ADK or AMC requires them, and have never had anyone refuse to sign them on outings that I have led. To those who have signed saying that it's unenforceable, I say that the courts of New York will generally give at least some effect to these releases, and they should not sign if they do not accept it. While there is nothing that one can do to prevent someone who refuses to sign from following ten paces behind the group, I think it would be wise and appropriate for the leader to inform such people explicity that they are not part of the outing party, that the leader accepts no responsibility for them, will not include them in head counts, and specifically that the leader will not notify search and rescue authorities if they become separated and don't come out of the woods with the organized party. It wouldn't hurt to have witnesses to this conversation.

On the other hand, I'm a bit disappointed and put off when smaller, less organized and more informal groups, or individuals leading outings in such groups (e.g., RWMS) start using them without the same pressures from insurance carriers that ADK and AMC have experienced.

 

[Stan]

I don't like releases but let's face it, we live in a very litigious society and are influenced by the fact that awards sometimes appear far disproportionate to the damage, at least anecdotedly.

Having said that I must admit that the trips I lead as a volunteer, which include a mix of people with various disabilities, are conducted without releases but I do make every effort to be informed on a variety of safety measures "including but not limited to" first aid, trail conditions and routes, and subtle changes in the condition or spirits of a participant. I also take every means to assure everyone is the group is aware of expectations, risks and how to dress or be equipped for them.

Trip leaders with substantial assets should seek legal counsel to protect themselves. Suits may be rare but if you become a defendent then it can be very disruptive of your life regardless of the merits.

Paul Petzoldt, founder of NOLS, once described part of his "release form" as an acceptance of the fact that you will likely get cold, wet, tired and may injure yourself in circumstances when immediate professional help may be days away. I wish someone could furnish the exact wording but it pretty much states what you have to be prepared for.

Finally, I would say that preparation, training and reasoned judgement are the best antidotes to lawsuits, and your own safety, no matter how strongly a release might be worded. To this end organizations like the AMC and its chapters lend a valuable service.

 

[Frosty]

there exists a POTENTIAL to be sued. So far it's been 0%, but all it takes is one time. It's not a matter of if but when some will sue over an accident.

That's the problem, IMO. It only takes one case with an off-the-wall judge or jury to change everything. The weird old lady who sued MacDonalds because she slopped coffee in her lap has caused everyone in the US to be served lukewarm coffee ever since. A successful suit against a trip leader, even if bogus in concept, would change volunteer-led hikes.

 

[scree flinger]

"I get concerned when this opinion, taken to an extreme, might lead others to fear a worse-case scenario."

It is better to plan for the worst than to bury your head in the sand.

Perhaps this "worst case scenario" fear will at least ferret out those who decide to lead a hike on a whim or because it sounds "cool". Those who do decide to lead hikes should have a "little fear" when assuming this potential while leading, it could make a difference if it motivates the leader to do everything in his/her power to prevent it. In the meantime, having a leader who approaches leading a hike by being super safety aware and cautious, would personally make me feel more confident following that person.

 

[Peakbagr]

"It is better to plan for the worst than to bury your head in the sand."

...Actually, this is a little more than just academic for me. I've earned my living the last couple of decades in the Risk Management field. I'll just leave it at that.

 

[scree flinger]

"I've earned my living the last couple of decades in the Risk Management field. I'll just leave it at that."

I am not questiontioning your credentials, however when you get a summons served on you and your standing there in shock, all the talk of how "protected you are" goes right out the window. Unless you have an attorney in the familily, the first thing you will do is give an attorney a $5000.00 retainer to defend yourself.
If you have ever had the pleasure defending yourself, you will soon learn NO MATTER WHAT you do to protect yourself, a lawsuit can be file against anyone at anytime and unless you want ignore it and have a judge decide in the plantiffs favor, you MUST DEFEND yourself and that COSTS MONEY. If that hapens do you think ADK will come to your rescue and pay for your personal attorney?

Just because something has never happened before dosen't mean it can't ever NOT happen. More and more lawsuits are files every year by masses of unemployed lawers grasping for straws and hoping the insurance company will settle before heading to court.

 

[Peakbagr]

As was stated before, the "named insured" section of the ADK policy includes leaders and volunteers as insureds under their policy. That means ADK's insurance and attorney is standing in front of you for defense and any judgement.

From what you've stated before, it appears you were involved with professional guiding. Again, there is a completely different set of legal standards held for an individual who receives pay to guide people and club dues are not considered remuneration for volunteer leaders.

My concern was that your unfortunate situation does not scare off trip leaders for ADK. The scenario you described is apples and oranges as respects ADK leaders (or of any club where their insurance is covers volunteers as insureds).

 

[scree flinger]

Because one may be covered by another policy and their lawerys DOES NOT PREVENT you from being sued personally. You seem to be missing this point or purposely ignoring it.

Anybody can sue for anybody for anything.

 

[Peakbagr]

Yes, which is why trip leader have full coverage for acts they might do or fail to do in their capacity as an outing leader. My purpose is not to further antagonize you, only to reassure trip leaders that they are fully protected from both an indemnity and defense standpoint.

 

[scree flinger]

No antagonizing is felt.

I just will agree to disagree with your statement.

"fully protected"

I have witnessed many situations where insurance companies have pulled out or refused to defend their paying customers for numerous (and illegal reasons) which leaves the defendant to sue the insurance company for coverage. So many varibles can influence these complicated situation. To imply one is fully protected, I feel, gives off a false sense of security. Say the leader had to take a drug test after a death or severe injury and failed it? What if accusations fly that the leader purposely lead the group to a dangerous area or headed them into a storm? To trust completly the insurance company and their lawyers would be foolish. Say the policy lapsed and no one noticed? There are endless scenarios which can put someone in a precarious legal position.


Anything that can happen will happen. It's only a matter of time.

Don't misinterpet my point here. I wouldn't suggest to anyone not to lead hikes, just don't assume you are 100% protected. There is NO such thing.