Trip Leading & Liability
Peter Gowen
Potential Trip Liability
Why are we concerned with potential legal
liability as trip leaders?
If something goes wrong, injured parties
(actually their lawyers) look for someone
from whom to recover for damages.
Legal Basis for Potential Legal
Liability

Liability in tort
Tort

A tort is (civil) liability of one to another
outside of a contractual agreement
Types of Torts



Negligence - primary basis in CMC Leadership
context
Gross negligence - secondary basis in CMC
Leadership context
Intentional tort - battery can happen in a first aid
context
– Always Ask – Can I help you : Do not start first aid to anyone without
their permission!
– Possibly willful and wanton conduct (state of mind requirement)

Strict liability - not likely in CMC leadership
context (usually imposed by statute)
What is Negligence?

An Act or omission which a reasonably
prudent person would or would not do to
avoid reasonably foreseeable harm to
another, under the same or similar
circumstances

When a person is harmed as a result of
another’s negligent actions, although the
harm was unintended
Elements of A Negligence
Claim
1.Duty of care owed by defendant to plaintiff
2. Failure to meet that duty
3.The failure to meet the duty is
PROXIMATE CAUSE of damage or
injury
4. Actual damage or injury suffered by
plaintiff
Negligence Example:
Trip leader makes a decision that is careless
that leads to an accident, injuring a trip
member - such as continuing on with a peak
climb during a serious electrical storm.
Analysis:

Duty of Care- trip leader owes a duty of
care to trip participants not to do something
that could cause harm that is reasonably
foreseeable to a trip participant.
–

When someone becomes a CMC trip leader,
that person assumes a duty of care.
Failure to meet the duty
–
Continuing to hike in this fact situation clearly
fails to meet that duty.
Analysis
3. Proximate Cause
– If a trip participant gets hit by lightening
after the leader continues with previous
lightening strikes have occurred all around
the area, the trip leader's failure to turn back
is a logical proximate cause of the injury.
Actual Damage.
4.
–
Death or serious injury usually pretty
apparent as damage. Subtle injury may be
more difficult to prove
Gross Negligence
Conduct so egregiously missing the duty of
care so as to open up a whole new level of
liability - possible punitive damages and loss
of protection from many insurance policies.
Willful and Wanton Conduct
Intentional conduct with grave probability of
serious damage ignored, or intentional
conduct callously inflicting damage or injury
Public Policy behind Negligence
Liability





Society has a general interest in requiring people not
injuring others in the conduct of social interactions.
Negligence liability is avoidable by acting as a
reasonably prudent person would under the same or
similar circumstances.
By avoiding acts that cause reasonably foreseeable
harm to others, society as a whole is benefited.
The way to encourage people to avoid acts which
cause reasonably foreseeable harm to others is to
hold them liable for damages caused for those acts.
This is achieved by compensation (compensatory
damages) that places the injured party in the position
they would have been in had the injury not occurred.
Negligence Cases
How are they decided?

Negligence is a mixed question of fact and law.

Cases are determined on a case by case basis by
juries

Juries can be all over the map as to how they
decide a particular case
Different juries hearing the same case could
frequently come to widely different results
What is Assumption of Risk?
Assumption of Risk is an affirmative
defense against a negligence claim.

Can be expressed- signed waiver of
liability
– Must be knowing and informed
– Only works in absence of gross negligence or willful
and wanton conduct

Can be implied –
– Plaintiff clearly knew and understood the risks
involved and still proceeded with known risk
Federal "Volunteer Protection
Act of 1997“ 42 USC 14504

Liability protection for volunteers
– no volunteer of a nonprofit organization or
governmental entity shall be liable for harm 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) 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

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Volunteer (Fed Act Definition)

The term “volunteer” means an individual
performing services for a nonprofit
organization or a governmental entity who
does not receive—
– (A) compensation (other than reasonable
reimbursement or allowance for expenses
actually incurred); or
– (B) any other thing of value in lieu of
compensation,
in excess of $500 per year.
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Volunteer Service Act (State)

Any volunteer shall be immune from civil
liability in any action on the basis of any act
or omission of a volunteer resulting in
damage or injury if:
– (I) The volunteer is immune from liability for the act or omission
under the federal "Volunteer Protection Act of 1997",
time may be amended, codified at 42 U.S.C. sec. 14501 et seq
as from time to
.; and
– (II) The damage or injury was not caused by misconduct or other
circumstances that would preclude immunity for such volunteer
under the federal law
CRS 13-21-115.5. (4)(a) -Volunteer Service Act
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Statutory Immunity

Key Requirements:
– No compensation
– Good Faith
– Absence of Gross Negligence, Willful or
Reckless Misconduct, or a Conscious, Flagrant
Indifference to rights of injured party
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Potential Tort Liability
Legal significance to CMC Leaders

Need to follow "REASONABLY PRUDENT PERSON "
rule while leading trips
– If do not follow "REASONABLY PRUDENT PERSON " rule,
potential exposure to legal liability.

Make sure member has signed Waiver of Liability.
– Guests should not be allowed to participate in trip unless waiver has
been signed Waiver of Liability.
– (This waiver should work as a shield against ordinary negligence
claims.)

Do NOT accept anything of value as compensation
– Includes anything that can be construed as compensation for leading
a trip
– If you do, be prepared to accept a higher level of legal liability
exposure than you would otherwise have.
CMC Liability Coverage

CMC State office carries liability
insurance
protection
for
ordinary
negligence in the conduct of CMC trips

Limits of $1,000,000 per occurrence

Does not cover gross negligence or willful
or wanton (no insurance policy will)
Personal Liability Coverage

Homeowners policy probably affords some
protection against ordinary negligence
claims up to limits of the policy

Additional "Umbrella" coverage can be
obtained
Avoiding Legal Liability


Act prudently under all circumstances
Learn and understand prudent standards for
trip leading by taking this seminar and
refreshing your knowledge periodically
Additional Topics

Inclusiveness
– Do not discriminate on the basis of:
Race
 Religion
 Country of Origin
 Gender
 Anything Else Except:

– SAFETY RELATED MATTERS – NECESSARY SKILLS
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Additional Topics

Sexual Harassment
– Avoid Unwanted Sexual Advances
– Do not abuse your Leadership Position
– Assume Any Advances Unwelcome Unless
Explicit Consent (Particularly at First Meeting)
This is a completely (and easily) avoidable
problem
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Additional Topics

Alcohol - an issue of concern at State Level
– No use on Day trips
– If driving with others returning in car pool
Absolutely do not over-consume
 Err on side of Caution

– Non-drinkers in car may be concerned with any
consumption
– Be aware of this concern
– Offer an opportunity for non-drinking driver
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Bottom Line



Let's be careful out there!!!
No need to be big time paranoid about
legal liability, but a little bit may be
useful and may be just what the lawyer
ordered!
The butt you save will likely include
your own!
QUESTIONS ???
(I am willing to take questions off line as well)
303-494-5420
PJGowen@comcast.net
Disclaimer
This outline is intended only for broad, general
information purposes and should not to be
considered legal advice for any particular set
of circumstances. The user is specifically
advised to confer with appropriate legal
counsel in any circumstance where there
may be a specific question as to that person's
legal rights and responsibilities under a
given set of facts