Outing Club Liability Questions
Paraphrased from “Outdoor Law: Basic Risk Management Concepts for Outdoor Programs” by Rufus Brown Esq. Brown & Burke P.A.
The best protection against liability is to act with reasonable care in the way that a program is set up and run.
It is important that the organization sponsoring the program carry insurance that covers the organization itself as well as its volunteers. For Outing Clubs, the best umbrella organization is the school. If the club is recognized as a school activity and the organizers and trip leaders are teachers acting within the scope of their employment, then the club should be able to benefit from the limited liability (sovereign immunity for discretionary acts) of the school as a governmental entity. Volunteers would be able to get the protection of the Volunteer Protection Act.
There are two reasons why acting with reasonable care in structuring and running a program helps protect you from liability. First, it minimizes the likelihood that anything bad will happen at all. Secondly, if something bad does happen, it is much less likely that anyone will be found to have been negligent if you have taken reasonable precautions. One of the most important parts of acting with reasonable care is anticipating possible problems that could occur, and taking reasonable steps to minimize the likelihood of such problems.
First, follow basic precautions related to taking students on outdoor adventures such as ensuring that a situation is not unduly dangerous or beyond the skills of students; that new or challenging activities have an experienced and skilled guide; that students receive adequate training in skills needed for a given activity; that appropriate first aid gear and individuals with appropriate training are available. (Teens To Trails recommends Wilderness First Aid at a minimum) This is not a comprehensive list of such precautions but only some examples.
Good risk management requires a culture of safety and effective communication. Safety issues should be addressed in internal policies and procedures, in program materials, in mailings to participants or their parents and in conjunction with each activity.
Second, the organization will want permission slips from the minor students’ parents, explaining what each event will involve and granting permission for students to participate. It will be important to spell out the nature of the event, the amount of adult supervision, and who will be driving. The organization may wish to consider having parents sign liability waivers. Note, however, that the enforceability of these waivers varies greatly from state to state, and many states do not allow parents to waive their child’s right to sue for an injury to the child.
Third, the organization will want to monitor how the program is running in practice, and will want to respond promptly and appropriately to any concerns that emerge. There should be protocols for staff responses to injuries. After the injured party has obtained proper treatment, a record should be made of what happened, the conditions under which it happened and the persons who witnessed what happened. The report should be forwarded to management for transmittal to legal counsel.
Fourth, the organization should periodically review the entire program to determine what foreseeable dangers exist. When dangers are identified, the organization should implement reasonable precautions to avoid the occurrence of injuries as a result of the danger.
Almost every state (except New Hampshire) provides volunteers with significant protection from being found liable under the federal Volunteer Protection Act. Generally, the Volunteer Protection Act protects volunteers from liability if they were volunteering for a nonprofit or government agency, and were acting within the scope of their volunteer activities at the time of the incident that caused the injury. The Act protects against liability even if the volunteer’s general negligence caused the harm – but not if the volunteer acted with a high degree of negligence, recklessness, or criminal misconduct.