API Summer 2021

RISK MANAGEMENT

But there is much that is not known: • We do not know if or how the op- erator of the tour reacted to these earlier incidents. • We do not know if the defect was ear- lier discovered by Bonsai in its role as inspector of the course, or if its find- ings were reported to Vail. A cynic, or plaintiff’s attorney, might suggest that except for the commissioning inspection by a builder, inspections might be done more credibly by an independent third party.

• It is possible that the braking system was in fact in good order but had not been re-set at the receiving platform. A major cause of plaintiff’s collision, then, may have not been the equip- ment but, rather, the lack of commu- nication between the sending and receiving towers. It appears that the signaling and readiness protocols had been taught to the staff. Which leaves open the argument that staff did not follow those protocols and training. • Plaintiff’s complaint asserts that Vail’s

zip line staff may have changed or relaxed their operating rou- tine after the weather break, but that issue is not devel-

oped in the published court order. It is probable that industry standards were violated, if plaintiff’s rendition of the facts is correct. Nothing suggests a defect in the design or construction of the towers or cable, or any terrain issue. There is no evidence that the zippers were aware of the prior issues with the system or knowingly assumed those risks. The collision, as it occurred, would not likely be considered an inherent risk of the activity. Significantly, the court found that plain- tiff did sign an agreement, releasing Bonsai (and Vail) from liability for their negligence. The agreement, however, did not release either Bonsai or Vail from gross negligence. The case could have proceeded on that issue, and that may have provided an incentive to reach an out-of-court settlement. Food for Thought Carefully consider the circumstances of the Cowles case in light of duties owed, duties breached, and defenses to liabil- ity. Understand, too, the importance of documenting training, inspections, and maintenance procedures and outcomes to provide clarity and demonstrate compliance with duty of care responsi- bilities. When you contract for services, consider your exposure to claims for which others might be responsible, and protect yourself accordingly. In considering the fundamental legal concepts described here, and their application to the reported facts of the Cowles case, owners and service pro- viders are urged to consult with legal counsel familiar with their operations and laws applicable to them.

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