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Maxed Out: Cry of the liable

'Liability breeds responsibility'

When I was a child—B.C…. Before Computers—my paternal grandmother would arrive every year for Christmas with pyjamas she’d made for the whole clan. I’m sure they were cotton, purchased at whatever fabric store she shopped at.

Years before that, on a Christmas Day, a young child was wearing her new pyjamas. They’d been purchased at a store, not made by her grandmother. Frolicking around in the evening, her pyjamas brushed up against a burning candle. They caught fire, burned like flash paper, and she was horribly burned.

Her parents, facing enormous medical bills, turned to a lawyer. A lawsuit was filed. The legal concept of privity of contract, having been weakened over the years, was overcome, and the company that made the pyjamas was found liable.

And the first of a long series of protective legislation was enacted requiring manufacturers meet federal standards of product flammability for children’s clothes.

It wasn’t the end of the story. In 1969, decades later, a four-year-old’s pyjamas caught fire when she reached across an electric stove to shut off a timer. The fabric met those minimal standards. Nonetheless, the company was found liable in the ensuing lawsuit. New standards requiring fabric to be treated with fire-retardant material were passed into law afterwards.

Prior to successive, successful litigation, drivers would regularly be impaled by the rigid steering columns in their cars in the event of a front-end crash. Auto manufacturers pleaded it would be too expensive to engineer a solution to that. People wouldn’t be able to afford cars.

By the late 1960s, collapsible steering columns were federally mandated. People could still afford cars. No one was impaled after that.

The same plea—cost versus affordability—delayed mandatory seatbelts, crush zones and a host of other safety features we take for granted in modern cars. The same can be said for most manufactured products, like portable heaters or humidifiers that switch off if they’re upset instead of starting fires.

The simple reason for all of these improvements is this: Liability breeds responsibility.

The same cannot be said for skiing, heliskiing, guided backcountry skiing and hiking, and climbing. For those activities, at least in North America, liability on the part of the companies and individuals has been waived. Your safety is your responsibility.

Before the more strident of you start wailing about the nanny state, let me say I believe my safety is largely my responsibility. Always has been when I’m weighing the risks of whatever I’m doing.

But when someone else is negligent, when someone else isn’t weighing the risks of their actions or inactions foreseeably causing harm to me or someone else, my safety, our collective safety, is threatened by their negligence.

To the extent they can avoid responsibility for their negligence, they have only their own conscience to keep them from continuing to act in a negligent fashion.

But their own conscience may, itself, be hijacked by a higher force.

Enter the lawyers and insurers.

As reported in The Tyee earlier this month, the conscience of the Association of Canadian Mountain Guides (ACMG) has been hijacked by its lawyers and insurers.

It started with a deadly avalanche during a 2016 guided backcountry ski trip. The surviving spouse struggled to get answers from the guides. Six years later, they thought they’d made headway when the ACMG approved a policy—a Post-Critical Incident Management Plan—for debriefing with clients after a critical accident. In other words, sharing information about what happened.

But the ACMG backed off its policy, removing it from its website. Outgoing president, Sylvia Forest, was quoted in Arête, the ACMG’s magazine, as saying, “The ACMG’s liability insurers and their lawyers felt it would undermine their ability to defend... in the event of a lawsuit.”

As reported, the ACMG’s incident reporting and learning system was also flushed. It allowed guides to anonymously report less-serious indicants so other guides could be informed and learn.

All of this has created a chilling effect where guides don’t even feel free to discuss critical incidents among themselves, let alone with their clients who have been affected.

Let’s be clear about one thing. The nobody speaks, nobody gets hurt policy isn’t being pushed by the ACMG or individual guides. It’s being recommended—coerced is probably a better word—by their insurers and lawyers. And clearly, something as inherently risky as backcountry guiding is a business that can’t operate without insurance.

But let’s also be clear, the interests being served by this policy are those of the insurers and the lawyers. To a large extent, especially in Canada, guides and ski areas are largely insulated from liability by court decisions that have upheld the liability waiver we all agree to.

The waiver does not, however, ensure lawsuits aren’t filed. And once a suit has started, the lawyers involved are paid by the insurance companies, not the guides or ski areas. The meter starts running and the cash starts flowing. So it’s in their best interests, not necessarily the best interests of the businesses they represent and insure, that guides keep their mouths closed.

Interestingly, also this month, as reported in SKI Magazine, the Colorado Supreme Court handed down a ruling calling into question the ability of waivers to protect ski resorts. The case involved a teen’s fall from a chairlift at Crested Butte. The trial court held the waiver absolved the ski area from liability.

But the higher court, in sending the case back for retrial, held the waiver effectively insulates against many instances, but it doesn’t protect ski areas where the resort’s actions or inactions were potentially negligent.

One Denver personal injury lawyer was quoted in the Denver Post saying, “It’s a sea change, in terms of ski areas’ responsibilities and consumers’ ability to be protected from ski areas’ negligence. From a consumer protection standpoint, it’s huge. Because liability breeds responsibility.”

So you’re likely to hear the cry echoing those formerly voiced by car manufacturers, tobacco companies, and other businesses forced through litigation to clean up their acts. Too expensive. We’ll have to shut down if we’re liable for every little injury.

And to some extent, they’re not wrong. There are plenty of people out there who believe anything bad that happens to them is someone else’s fault. And there’s no question ski areas, mountain guides and others need protection from them.

But there is a line between the point where personal responsibility ends and someone else’s liability begins. For most activities, negligence is that line. Why should skiing be different?