API Summer 2021

RISK MANAGEMENT

Contribution and indemnity. Liability may be shifted among or between the parties who may have contributed to the event or circumstance before the court. Builders and other service provid- ers, for example, may seek indemnity (protection from liability, a defense of claims, and costs) from the owner or operator of the course for claims that do not arise directly from their services. The avoidance or shifting of liability is most successful if the parties agree to it in writing as part of the contract for services. The protection sought can be quite broad (“any accident or loss occur- ring after completion of the service”) or limited (“all claims except those which arise solely from a defect in the perfor- mance of the service provider”). In certain indemnity situations, a judge or jury may allocate responsibility, and payment of the claim, between or among the parties implicated. The party bringing the suit may be found to have contributed to the loss, too, and its recovery reduced accordingly.

some evidence of negligence. An orga- nization’s history, including employee records, may reveal incompetence and improper practices. A court may consider as evidence anything that adds to an argument that the accused “play- er”—operator, owner, etc.—did not act reasonably in the circumstances before the court. The passivity of the zip line rider is an important consideration, too. The rider is placed in a harness, clipped to a cable, and released, relying on gravity, good design, construction, equipment, and a trained staff to “land” safely. If she has responsibilities for slowing her approach, or braking, or raising her feet, she relies on instructions received “up top” or instructions (which may turn to anxious shouts) from the receiving staff. Following instructions should in- sulate her from claims that she contrib- uted to the accident, i.e., that she was, herself, negligent.

that the premises (the course and re- lated terrain) be as safe as they appear to be. In addition, special laws govern liability for products whose design or manufacture might be defective. Defenses. There are defenses to a claim of negligence, of course, some of which may be set out in the agreement with the visitor—or exist as a matter of state law, independent of any agreement. These defenses include an assumption of the loss-causing risk (“I understand there might be close personal contact in harness fitting,” for example). There is no duty to protect a participant from an inherent risk of an activity—a risk that is so integral to the activity that, without it, the activity would lose its basic character (anxiety regarding heights, for example). And importantly, a participant may waive or release, in advance, claims arising from the activity (including, in all but a few states, the negligence of a released party but not its gross negligence or recklessness).

The courts are attentive to the unique duties of landowners, which require

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