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Outside Magazine July 2002

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Risk (Cont.)

THE PRECURSOR TO THE MODERN adventure lawsuit was a famous case that began on a warm summer day in 1929, when a man named James Murphy bought a ticket for the Flopper, an attraction at Coney Island's legendary Steeplechase Park. The ride was a herky-jerky moving sidewalk that threw its riders like a bucking bronco. Murphy hopped aboard, got thrown, cracked his kneecap, and sued.

The issue went before future Supreme Court Justice Benjamin Cardozo, then a judge in the New York State Court of Appeals, who rejected Murphy's claim so roundly that Murphy v. Steeplechase Amusement Co., Inc. became a standard case study in law school. Applying the English common-law principle of volenti non fit injuria—he who consents cannot be injured—Cardozo ruled that if you buy a ticket for the Flopper, you can't collect damages when it flops you. "The timorous," he concluded, "may stay at home."

"Clients often hear what they want to hear," says Preston Cline. "So organizations have to be more abrupt about saying: 'Look, these are ways you really could die.

That phrase set the tone for such cases until February 10, 1974, when James Sunday took a turn down the beginner's slope at Vermont's Stratton Mountain Resort. Sunday caught his ski on a hidden clump of brush and fell hard: He went down a 20-year-old novice skier, and came up a quadriplegic. Sunday sued, claiming negligence, and was awarded $1.5 million, sending a wave of panic through the ski industry.

The verdict in Sunday v. Stratton Corp. was a watershed because it was the first major reversal of the Steeplechase standard—and it came at a time when outdoor recreation was exploding in popularity, drawing participants who looked at risk in new ways. In the fifties and sixties, most skiers were hardy outdoorspeople accustomed to ungroomed hills and frequent injury. The sport's fashionable boom in the seventies attracted people who were inexperienced, less adventurous, and more likely to sue over a broken leg. The courts decided they needed some level of protection. "The timorous no longer need stay at home," the Supreme Court of Vermont noted in its 1978 ruling on Sunday. "There is concerted effort to attract their patronage."

To survive the Sunday decision, outdoor-industry leaders lobbied lawmakers in recreation-dependent states like Colorado, Wyoming, and Vermont to pass recreation safety acts. The new laws held outdoor enthusiasts responsible for the inherent risks of their sports, weakening the effect of Sunday and strengthening the assumption-of-risk idea that had evolved from Murphy v. Steeplechase.

Similar laws are on the books today in 26 states, but recreation safety acts weren't enough to protect outdoor businesses against future Sunday claims. Ski-resort owners, river runners, mountain guides, and wilderness educators had to change the very language they spoke. Still, it was a subtle change. The Sunday decision didn't require that businesses provide perfect safety for all outdoor activities. What it did require was that they be very careful not to put anything in writing that promised safety.

Charles R. "Reb" Gregg, a 66-year-old Houston attorney who is considered the dean of the outdoor bar, was one of the first lawyers to see the danger in promising safety. Gregg has represented the National Outdoor Leadership School since the 1970s and coedits the Outdoor Education & Recreation Law Quarterly. He is famous in risk management circles—that is, those insurers, lawyers, and safety managers who monitor the outdoor industry with an eye toward keeping employees and clients injury-free—for his mock-trial cross-examinations. In these, he plays the part of an attorney for an injured client, puts an adventure company CEO on the stand, and blows holes in the language of the company's brochures.

"I'm reading here where it says, 'Safety is our number-one priority,'" he'll say. "This is your brochure, is it not?"

Yes, says the CEO.

"And later in the same document you talk about clients coming to this program 'to take risks.' Is that right?"

Yes again.

"Now, my dictionary defines safety as"—here Gregg holds up Merriam-Webster's Collegiate for effect—"'free from harm or risk.' I wonder if you'd choose one or the other, because you can't have both."

Whatever choice the CEO makes, he loses. Because Gregg's follow-up goes like this: "Then you didn't tell your client the truth, did you?"

The word safe, Gregg explains, misrepresents what an outdoor experience should be. "We don't avoid the risk of harm, we embrace it," he says, speaking of the outdoor adventure industry as a whole. "So what we had to do was eliminate the term 'safety.'"

In the wake of the Sunday decision, outfitters expunged promises of safety from their brochures and liability waivers, and replaced them with warnings about the risks their clients would face on their excursions. The blunter and more graphic the information, the better.

"Clients often hear what they want to hear," says Preston Cline, 35, a wilderness risk consultant and director of Adventure Incorporated, a Gloucester, Massachusetts-based company that works with outfitters and experiential education groups. "An organization's brochure may have vague statements about how you can get yourself killed doing this. But what a client reads is: Ooh, how exciting, how challenging. So that organization has to be more and more abrupt about saying: 'Look, these are all the ways you really could die doing this program.'"

That shift—from a "sign here" formality to a candid briefing on risk—has made the liability release much more difficult to dismiss in court. "I still hear people say a release isn't worth the paper it's written on," says Gregg. "That just isn't true. A well-crafted release will almost always hold up."

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