Summer operations risk and exposure nearly equal those of winter. You’ve heard it before: Summer is NOT winter. This, of course, applies to so much more than just the weather. With the growth of summer business, mountain resorts can no longer be considered just ski resorts. Areas should now be giving summer as much, if not more, attention as winter operations. For the most part, guest visitation is still heavily weighted toward winter, but from a risk and exposure standpoint, the scales are nearly even. That’s because summer guests are different than winter guests. They’re often not familiar with the mountain environment or the summer attractions and activities resorts offer, and therefore aren’t fully aware of the risks involved. As a result, they have different expectations. Combined, this can lead to more incidents and possible claims. Which leads us to the biggest weight tipping the scales: There is no summer equivalent to a Skier Safety Act, so resorts don’t have the same liability protections as they do in winter. Here are nine areas to consider to help minimize your exposure and risk, and to improve the overall guest experience. 1. CONTRACTS: DON’T OWN SOMETHING YOU SHOULDN’T. The Pitfalls: Failure to review a contract/agreement could leave you holding the bag of responsibility. Your organization should have a designated person in charge of all contracts. He or she should review contract language annually, at minimum. Others in the company can and should review contracts, but final approval solely falls on the person in charge. In general, your defense counsel needs to make sure your resort is current with law/regulation code, and should make any necessary updates that weren’t previously included in the language. Contracts with vendors: Have contract templates for all who set foot onto resort property. Resorts should have a few of these in place, starting with the most basic, and add more language as the job/contract gets more complex. 1) basic vendor agreement, 2) (more complex) basic site entry contractor agreement, and 3) (most complex) independent contractor agreement. Not every party will be agreeable to using your contract. If that’s the case, get counsel involved to make sure you avoid a one-sided contract or agree to own something you shouldn’t. Contracts with guests: Always secure home field advantage by including choice of venue language on signage and tickets that clearly shows your guests agree to sue only in your state and your county. Create a photo log each year of signage and procedures and keep it on record. Where there is no statute, get a release, participation agreement, or waiver, depending on your state. In addition, this language should be included on: paper tickets, season passes, season pass agreements, parking passes, hotel check-in paperwork, electronic signatures, and website releases. 2. MOVING TARGETS: KEEP UP WITH CHANGE. The Pitfalls: Changes in regulations and/or standards from a governing body, changes in manufacturer SOPs, or internal policy/procedure changes may require updates to your attractions and the corresponding documentation. Have an established relationship and open communication with any governing body and/or standard setting party as well as the manufacturer to keep up with and understand changes that affect your business. Be familiar with any relevant standards and comply with OSHA regulations—they are watching. Internally, document any changes that occur to policies and/or procedures and the subsequent staff training. 3. RELEASE LANGUAGE: THE LANGUAGE NEEDS TO MATCH THE ACTIVITY. The Pitfalls: All too often, resorts use winter releases and winter ticket language for non-winter activities. Have a release/waiver/participant agreement for summer activities that specifies the particular risks inherent with the season and the activities. Even if it’s not enforceable in your state, it’s at least another layer of notice. And with the right venue selection language, it can give you home-court advantage. 4. GUEST EDUCATION: FAILURE TO WARN, FAILURE TO EDUCATE. The Pitfalls: Insufficient warnings and education gives a plaintiff’s attorney tons of ammo. Make sure you are setting the table correctly. Guests should know what they are getting into ahead of time, and understand the risks involved with what they do. Educate them on the type of attraction or activity, and its degree of difficulty, ifapplicable. continued Guest education begins before arrival. On your website, include information about the activities the resort offers, FAQs, and electronic waivers. Post instructional videos to social media and have them embedded on your website. On site, staff should provide a thorough introduction and instructions for the activity. This often is done during ground school for aerial adventure activities, or during registration for other activities. Loop instructional videos in gear-up areas. Signage should be exhaustive and conspicuous. The following should all be posted (where applicable): manufacturer-provided signage; resort-specific signage; ride-specific signage. 5. STAFFING, TRAINING, AND EMPLOYEE EXECUTION: BE PREPARED FOR ANYTHING. The Pitfalls: An incident occurs because your attraction was not properly staffed, staff was not properly trained, and/or staff did not carry out the duties of the position as he or she was trained. First, it’s important to have the right staff members in the right positions. They need to be capable of executing all the duties of the job. Similarly, the training should be customized to match the operation, so whatever staff learns actually carries over. Is the training mandated by the manufacturer? Or does communication with the manufacturer need to take place to agree upon training and expectations? Remember, the manufacturer will need to sign off on it, including who is conducting the training and when it occurs. It will need to be documented or it never happened. If the resort has multiple activities or attractions, staff should be adequately trained in more than one of them. That way, if an employee doesn’t show up, someone else can jump in. It also allows staffers to do different things, which keeps things fresh and avoids complacency. 6. TODDLER EXPOSURE: RESPONSIBILITY IS NOT GOING TO FALL ON THE CHILD (FOR THE MOST PART). The Pitfalls: Parents don’t always keep a close enough eye on their kids, or don’t alert staff to special needs. Kids are a sensitive topic at resorts. A common issue is parents not keeping as close an eye on them as they should. That’s when incidents happen. You might consider installing adequate video surveillance to have your own eyes. Video does not lie and can tell you early on where you sit at the liability table. Programs for which kids are dropped off should require parents to complete a registration form specifying a child’s needs, restrictions, allergies, etc. Staff should be mindful of what each kid can and can’t do. Also, how do you keep track of who is picking kids up and dropping them off? Have sign in/sign out procedures whenever kids are involved, and require notification for who is allowed to pick up. continued 7. INVESTIGATIONS (SLIPS AND FALLS): SUMMER’S BALL GAME HAS DIFFERENT PLAYERS, LESS STATUTORY PROTECTION. The Pitfalls: Winter policies/procedures for conducting investigations—especially for slips and falls—often do not carry over to summer operations, so investigations just don’t get done. Again, everyone needs to remember there is no summertime equivalent of a Ski Safety Act, so those protections don’t exist. In winter, a slip and fall always triggers some type of investigation, right? Adopt the same policy/procedure for summer. At minimum, find out exactly where the incident occurred and take photographs to memorialize the condition and location. If the staff that performs investigations in winter is not present during the summer, train other staff that is. In general, your summer policies and procedures for incident investigations should mirror those of winter, obviously taking into account the different activities, venues, scenarios, risks, and personnel. Slips and falls, specifically, are important to address. Why? Because if they get to court, they’re tough to defend. Summer guests are not as risk aware as winter guests, and they generally have different expectations. Winter guests generally understand the risks involved with a visit to the mountain. 8. INSPECTIONS: WHO, WHEN, AND HOW. The Pitfalls: The daily inspections of your summer attractions are performed by staff who isn’t qualified to do so. Or the person is qualified, but the documentation proving it is not readily available. Only qualified, trained staff can perform daily inspections. Any staff certifications and/or trainings need to be documented and available. Other periodic inspections need to be done, too. The manufacturer should have recommendations for frequency, but an annual inspection is standard. Who performs the annual inspection is important. There are several options for this. Check if there are any local and/or state regulations that spell out what is required. If none exist, a third-party annual inspection is recommended. If the manufacturer performs the inspection, does that create a conflict? Talk to your insurer to make this determination. 9. DOCUMENTATION: IF IT’S NOT WRITTEN DOWN, IT DIDN’T HAPPEN. The Pitfalls: You are not able to produce the documentation to show your employee was trained, or that your attraction was inspected, or that you made a change in procedure/policy. Document everything and anything you might have to prove down the road. This includes, but is not limited to: staff training and certifications; all course inspections, including who performed them, when they happened, and any findings; all incidents and injuries, no matter how minor. Once something is documented, put it in an accessible place so you can find it when you need it—and have a backup. Paper documentation is sufficient, but there are several options for digital documentation programs that, for a nominal investment, can make life much easier.
