Not long ago, a client asked whether an AED (automatic external defibrillator) was so commonplace as to be considered “standard” equipment for a ski area. His question was a good one but not easily answered, because there is no written standard to refer to. So, just what makes a standard a “standard”?

The use of the word “standard” or the phrase “industry standards” is common in many industries. But those terms often mean different things to different people. When taken out of context the implications could be dramatic.

The word “standard” has two relevant definitions, according to the Merriam-Webster Online Dictionary (2005). By one definition, a standard is “something established by authority, custom, or general consent as a model or example.” The other definition of a standard is “something set up and established by authority as a rule for the measure of quantity, weight, extent, value, or quality.” In other words, a common practice is a standard, but only one definition of the word.

What all standards attempt to do is to provide definition, clarity and predictability. To the extent that a given standard relates to conduct or behavior, it provides guidance and expectations for all concerned.

The best-known standard for the ski area industry is ANSI B77, more fully entitled the “American National Standard for Passenger Ropeways—Aerial Tramways, Aerial Lifts, Surface Lifts, Tows and Conveyors—Safety Requirements.” The current version is properly cited “ANSI B77.1- 1999” which indicates that the last revision was in 1999. As we know, B77 was recently revised for the eighth time since its inception and will soon be cited as “ANSI B77.1-2006.”

The American National Standards Institute (“ANSI”), however, is neither the author nor the enforcer of B77. Rather, B77 was written by the ski industry for the ski industry (for the most part) and its enactment and enforcement is left to state and local regulators, insurers and the like.

ANSI B77 was first adopted in 1960. The periodic revisions to ANSI B77 since then reflect the changes in the industry, particularly the changes in lift design, manufacture and operation.

ANSI B77 is a voluntary standard. ANSI’s role in the development of B77 is to ensure that the process for drafting the standard meets its requirements for due process and consensus, among other factors. According to the ANSI website, “The hallmarks of the American National Standards process include:

• consensus on a proposed standard by a group or ‘consensus body’ that includes representatives from materially affected and interested parties;

• broad-based public review and comment on draft standards;

• consideration of and response to comments submitted by voting members of the relevant consensus body and by public review commenters; and

• incorporation of approved changes into a draft standard; and right to appeal by any participant that believes that due process principles were not sufficiently respected during the standards development in accordance with the ANSI-accredited procedures of the standards developer.”

ANSI, therefore, is really the keeper of the standards for the standards! But that is what gives credibility to the ANSI standards. They are only adopted after rigorous debate and careful review by affected and interested parties.


How Voluntary Becomes Mandatory
Even though the ANSI B77 standard is voluntary, it may become mandatory if it is adopted by a governmental body with jurisdiction over passenger tramways. And regulatory bodies can adopt any or all parts or versions of the ANSI standard. For example, in Illinois the Carnival-Amusement Safety Board has jurisdiction over ski lifts and has adopted ANSI B77 as its standard for lift operations in the state.

In those jurisdictions where a voluntary code like ANSI B77 is adopted by state authority, it is the rule of law. In some states, a violation of a statute designed for the safety of the public may be negligence per se, meaning no further proof is necessary. Alternatively, the violation of a duty imposed by administrative rules and regulations may be considered some evidence of negligence. The same rule applies to safety codes and standards that have been adopted by an administrative body pursuant to legislative authority.

So what is the impact of such written standards for resort operators? In order to prove a claim for negligence, a person must prove that he/she was owed a duty of care by the defendant, that the defendant breached the duty of care, that he/she was injured and that his/her injury was proximately caused by the breach.

In most jurisdictions, a landowner has a duty of reasonable care to all who enter (with certain exceptions, of course). The duty generally includes an obligation to warn or protect patrons from foreseeable hazards. Defining what is or is not reasonable care is difficult, and most often can only be determined by a jury based on the facts of the case. Factors that can be considered in determining reasonable care include the likelihood of harm, the gravity of harm and the burden of preventing the harm.

Often, the duty of reasonable care is referred to as the “standard of care” which a reasonable defendant owes to a plaintiff. Written standards, therefore, can be evidence of the standard of care.


Beyond Standards
Some courts may find that industry standards and safety codes are not the conclusive factors in determining the negligence of the defendant, but merely provide some evidence of the appropriate standard of care. Since the standard or customary conduct of the industry does not set the standard by which negligence will be gauged, noncompliance with the standard may be relevant, but does not conclusively establish the defendant’s negligence.

Simply complying with a given standard, however, may not be all you need to do. In some jurisdictions, conformity with the ANSI or other industry-wide standard may not be an absolute defense to a claim of negligence. While it may be evidence of due care, compliance with industry standards, or standards legislatively or administratively imposed, will not preclude a finding of negligence where a reasonable person engaged in the industry would have taken additional precautions under the circumstances.

So: standards will give you predictability, but not necessarily complete protection. Why not? Because the standard may be misguided or out of date with current operations in the field. At the 2005 Lift Maintenance Seminar at Butternut Basin, Sid Roslund prefaced his remarks on the proposed 2006 ANSI revisions by saying that one purpose for the update is that “technology had passed the standard.”

Written standards, therefore, should be viewed as a baseline of conduct, as the minimum of what is required. In most cases, meeting the written standard should be sufficient to convince a jury that your resort met the standard of care. But there can be exceptions.


When Courts Set the Standard
What about a situation where there is no written standard regarding the conduct involved, like the AED? The courts will decide, after the fact of course, what the appropriate standard of care should be.

A recent article in Lawyers Weekly USA indicated that given the FDA’s recent approval for over-the-counter sale of these medical devices, plaintiff’s attorneys are poised to argue that a business that caters to large numbers of people, who are likely to suffer sudden cardiac arrest, should be found negligent for not having one available. In fact, this is already happening: a jury in Florida recently found a health club liable in the amount of $619,650 to the family of a man who died of cardiac arrest while working out because the club did not have a defibrillator on site.

Written standards can provide guidance to ski area operators and serve to protect the public from harm. In the case of new technologies such as AEDs, industries can decide whether they want to write the standards themselves, or have the “standard” written for them.


Richard Donahue is a claims specialist with Willis of New Hampshire. E-mail him at richard.donahue@willis.com.