LEGAL CHALLENGES OF SELF-GUIDED ACTIVITIES
When guests navigate an aerial course or zip tour unguided, operators must employ enlarged risk management strategies.
BY REB GREGG, Attorney-at-Law
RECENT CASES A few recently settled cases shed light on duty of care and liability issues. Suspension trauma. A woman on a self-guided course in a Kentucky cavern fell, twice, on an element consisting of two horizontal ladders. She was suspended from the second ladder, in her harness, for “five to eight minutes,” according to the court’s opinion. She lost consciousness during the rescue and later died at the hospital. The estate presented evidence that her death was caused by “suspension trauma” resulting from her extended time hanging unsupported. The estate claimed further that the operator failed to exercise ordinary care in the operation of the course and failed to respond promptly to the emergency. The operator argued that the death was caused by a pre-existing health condi- tion and by the participant’s own failure to exercise ordinary care. The jury found the estate did not prove the operator’s failure to exercise proper care. (Bradley v. Louisville Mega Cavern, Court of Appeals, Kentucky, May 19, 2023). Failure to brake properly. A 16-year- old suffered a permanent knee injury when he failed to properly brake at the end of a zip line. The Ohio court found no liability, because, it said, the child
S elf-guided experiences, while their rewards are substantial, expose participants to challenges that are not the same as those of guided, and even moderately supervised, courses and tours. It follows, then, that the legal duty of care owed to partici- pants on self-guided courses, and strategies for avoiding or shifting legal liability, are not the same as those associated with traditional courses. Anyone who operates a self-guided activity should be aware of the following considerations. THE ISSUES Obligations to visitors. First, a remind- er of an operator’s legal obligations to visitors. An operator must keep its promises. This is basic contract law. Operators are expected to do what they say they will on their website and other publications, in signage, and during the on-site orientations for participants. Duty of care. In addition, an operator owes a duty of care to its participants. In legal terms, this duty is commonly described as an obligation to deal with the visitor as a reasonable park oper- ator would under the same or similar circumstances. The “same or similar circumstances” aspect of this definition is particularly pertinent when dealing with a claim arising from a self-guided experience.
negligence and, if found by a judge or jury, the operator must compensate an injured visitor if the negligence caused an injury or other loss. Industry standards pertaining to the activity can be used to measure the reasonableness of an operator’s per- formance. State law may provide that the violation of an industry standard designed to protect a participant can be used by the complaining party as some evidence of negligence. A deviation from common practices, too, may be some evidence of negligence. Limits to duty of care. An operator has no duty to protect a participant from the inherent risks of the activity—risks that are so much a part of the experi- ence that, without them, the experience would lose its value and appeal. Claims arising from athletic and sport- ing events, including activities on aerial tours, are particularly susceptible to an “inherency of the risk” defense. This may, in some circumstances, include even the carelessness of staff and other participants. Further, an operator has no duty to protect a participant from risks that are knowingly assumed. Routinely, operators require participants to sign agreements whereby claims of loss are released, including claims of negli- gence (but not claims of recklessness or gross negligence).
A breach of the legal duty of care is
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