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by Catherine Hansen-Stamp and Charles R. Gregg
©2002*
Every program brings “gear” — a/k/a “stuff” — into the field. This gear
has a variety of purposes (providing shelter, medical treatment, communication,
etc.). Deciding what to carry and what not to carry into the field is
as important as many decisions made in the field. It requires an awareness
of your clients, the environment, reasonably anticipated needs, and of
course, what you and your client expect to accomplish.
With the explosion of technological devices available for everyday use,
a growing segment of the consuming public has developed expectations about
the availability and reliability of this technology, even on remote outdoor
programs. Participants may expect that certain technology will be on hand
and available. Expectations may extend to radios, cell and satellite phones,
first aid kits and medications — perhaps even avalanche recovery devices
and global positioning systems.
In light of consumer expectations, is an outdoor program’s conscious
decision not to carry these aids reasonable? Ethical? Presumably such
a program has decided that the benefits of being “out of touch” and utterly
self-reliant justify the potentially increased risks. While a decision
not to carry these aids may be reasonable, growing public expectations
make it prudent for programs that choose this approach to make that fact
clear to their clients.
Therefore, an important challenge to the administration of a responsible
program is to anticipate the client’s expectations in terms of technological
support, and to accurately disclose what will and will not be available
on the trip.
The starting point in a discussion of gear — including gear which may
relate to safety or medical issues — is the mission of the program and
its purpose. What the program wishes to accomplish will guide its approach
to what it provides, and what it withholds, from the field experience.
It would be fair and reasonable, for example, to greatly reduce gear —
even emergency response gear — if the mission is served by doing so.
In some programs, maps, compasses, climbing aids, perhaps even synthesized
medicines and water purification systems would not be expected by a person
who understands the goals of those programs. At least one very good outdoor
school in a Western state offers an orientation in which clients travel
with little more than basic clothing, a blanket, a knife and a water bottle.
Clients are told there will be no cell phones or radios, limited medications
and only sparse water and food. This program teaches survival skills,
self-reliance, and confidence. This minimalist approach to resources is
important to its mission. Other outdoor adventure or education-based programs
may have equally logical reasons for not carrying certain technological
aids. The importance of a truly remote wilderness experience may be so
imbedded in the culture or mission of a program that it chooses, for example,
not to carry a radio or cell phone.
Those programs that decide they will have certain equipment in the field
should, of course, disclose the limits of that equipment. In the case
of communications gear, for example, equipment performance cannot be guaranteed,
communications can be misunderstood, and small groups may not have access
to the equipment at all times. In addition, staff and in certain cases
clients, must be trained in the use of cell phones, radios, and other
safety gear. The gear must be in good working order and its location and
availability known to those who might need to use it.
Thoughtful programs will anticipate the “risk homeostasis” phenomenon
which can be associated with having these technical supports at hand —
the notion that the ability to summon help quickly, for example, might
allow or encourage clients to expose themselves to risks in a way that
might not be tolerated without these devices. In an article in the Denver
Post this spring entitled “Snow Deaths Adding Up” (March 24, 2002), Hal
Clifford highlights a new piece of equipment called the “Avalung,” designed
to provide oxygen to backcountry adventurers buried in an avalanche. The
victim can breathe for a short time while searchers locate him through
use of yet another piece of high tech equipment, the Tracker beacon. Through
use of such equipment, adventurers may be enticed to go further and further
into more questionable terrain. He writes: . . all of this equipment and
education creates a false sense of security in a natural environment that,
unlike culture and technology, has not changed . . . I think the biggest
factor is the human factor . . . the same accidents are happening over
and over again. Instead of thinking about what the mountains will allow
us to do, we are thinking about what we want to do.
On another note, some gear is heavy, and its inclusion in the field may
slow the movement of the group, sap energy and enlarge the potential for
injuries. If you carry it, you should be trained to use it — training
time and attention that might be used for more important matters. And
inclusion, as mentioned above, can create complacency. Consider a guide
who doesn’t take the appropriate preparation time to understand his or
her routes in the backcountry, reasoning that there will be access to
a cell phone “just in case.”
A program believing its mission justifies or mandates the absence of
expected gear should carefully disclose the reasons for this reduced support
and the potential additional risks posed by the absence of such gear.
In addition, the program should reasonably assure that the client understands
and agrees to assume the enlarged risks. A program may find itself in
a difficult position if the client expects and assumes that certain equipment
will be available and it is not.
A program whose mission does not justify reduced technological support
should have a good reason for not having this support available. An injured
client, his or her family, and a judge and jury may not take well to the
defense of: “we couldn’t afford it” or “we didn’t consider it.” Consider
again the Avalung, mentioned above. You likely would not carry an Avalung
unless you anticipated crossing very fragile slopes. One might ask: “Why
are you crossing those slopes anyway?” Still, if there was a slide, and
the victim suffocated . . . what do you tell the parents?
Whether or not a program believes its mission justifies reduced technological
support, satellite or cell phones, avalanche beacons and GPS devices may
assist in managing an emergency in the field, and if a program decides
not to employ these aids, clients who might reasonably expect them to
be available should be clearly advised of that decision, and of the potential
risks created by those aids not being available.
Interestingly, at the time of the September 11th crises, some programs
carrying communication devices allowed clients to talk to their families
from the field. This was done to provide security and comfort at a time
of unique stress and anxiety. By policy, such programs had reserved use
of the phones for only the most extreme emergencies. The 9/11 crisis was
considered such an emergency. However, the reservation of use for “emergencies
only” may be undergoing some scrutiny. At least one fine program is experimenting
with allowing telephone or radio communication between the field and “home
base” to seek advice regarding safety and other issues. In addition, young
students struggling with their first outdoor experience are allowed to
talk to parents who offer encouragement to stay in the field, thus avoiding
evacuation. It will be some time before we know the effect of such expanded
use of technology on the wilderness experience, and on the development
of judgment and coping skills in the field. Again, it’s all about mission
and addressing expectations.
A word about standards: In the Winter 2002 issue of the Law Quarterly
we discussed the T. J. Hooper case. The question before the Court was
whether the absence of radios on most vessels in an area represented a
“standard in the industry.” Such a standard might have justified the absence
of a radio on defendant’s vessel (whose cargo was lost in a storm) and
a finding of “no negligence.” The Court found that the ultimate decision
regarding reasonable conduct — in this case, whether or not to outfit
boats with radios — was the court’s, not the industry’s, and found the
vessel liable. In essence, the Court found the entire “industry” was negligent
in not choosing to outfit boats with radios.
So, while “the way most folks do it” may influence a court decision regarding
the reasonableness of, for example, carrying a satellite phone into the
wilderness, the last word belongs to the courts. A court may decide that
even though most programs don’t carry them, a reasonable program should,
and a program is negligent in failing to carry communications gear for
emergencies. Faced with this prospect, a program should carefully weigh
a decision not to carry such gear. Importantly though, the program should
understand that disclosing to clients the intent not to carry certain
gear (including potentially increased risks), and an announced mission
which prioritizes the remote and self-reliant wilderness experience, may
very well justify the unavailability of the gear.
In conclusion, organizations should examine their mission and practical
program needs, and think carefully about decisions to carry — or not carry
— certain equipment. Whether or not certain equipment is taken on the
trip, appropriate disclosure to clients (and their understanding and assumption
of increased risks and/or equipment limitations) is a vital step in addressing
client expectations and potential liability exposure, and in minimizing
potential problems on the program. Importantly, a program which discloses
to clients the intent not to carry certain gear (including disclosure
of potentially increased risks), and whose mission is clearly understood
to prioritize the remote and self-reliant wilderness experience, will
be better able to defend an accident that might have been avoided or mitigated
by, the presence of such gear. As always, these are general thoughts,
not intended to provide specific legal advice, and organizations should
consult with their legal counsel to address these matters in their own
operations.
*Reprinted with permission: This article was originally printed in
the Summer 2002 issue of the Outdoor Education & Recreation Law Quarterly.
It is reprinted here with permission from Catherine Hansen-Stamp and Charles
R. “Reb” Gregg — co-authors of this article and co-editors of the OLQ
—and The Outdoor Network.
Technology: Closing the
Communication Gap for Camps
More About the Outdoor Law Quarterly
The Outdoor Education & Recreation Law Quarterly (OLQ) is the only
publication devoted exclusively to providing current information for recreation
and adventure programs on case law and associated legal issues. The co-editors
are both respected attorneys, and each has a tremendous amount of experience
in the outdoor industry, serving as advisors and board members for such
organizations as NOLS, Outward Bound, and WRMC.
In concise case summaries and in-depth features, the OLQ explores a wide
variety of issues, including inherent risks of activities, release agreements,
negligence in supervision, medical screening, minors, and staffing. Recent
articles include “Unlocking (a Few of) the Mysteries of Insurance,” “Post-Accident
Conduct: Hunker Down or Cooperate?” and “Parent’s Agreement to Indemnify
Programs for Claims Brought by Child.”
For a limited time, the Outdoor Network is offering ACA members a special
introductory discount on the OLQ. To receive a 25 percent discount on
the regular $85 subscription price, call The Outdoor Network at 800-688-6387
and mention that you are an ACA member.
The OLQ is published by The Outdoor Network, a business-to-business organization
that serves the outdoor education and recreation industry and is distributed
globally. You can contact the authors directly — Catherine Hansen-Stamp
at hansenstamp@outdoornetwork.com
or Charles R. “Reb” Gregg at rgregg@outdoornetwork.com
and Managing Editor Ethan Decker at editor@outdoornetwork.com.
Originally published in the 2003 Spring issue
of The CampLine.
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