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July 2017

Details Matter

Eight steps to protect your summer business.

Written by Tim Yates | 588 Views | 0 comment

This article is reprinted from SAM’s sister publication, Adventure Park Insider, Winter 2017. See more at adventureparkinsider.com.


Whether you are just getting started in summer operations or are a seasoned multi-season operator, it’s important to attend to the technical details of paperwork across a wide variety of business aspects. Consider the following eight steps as a guideline to help safeguard your business.

1. REVIEW YOUR PURCHASE AND INSTALLATION CONTRACTS.
When just starting out with attractions like zip lines, mountain coasters, summer tubing, ropes courses, bungee trampolines, climbing walls, and even bouncy houses, read and understand the terms of your purchase and installation contract, as well as the owner’s or operational manual. Can you adhere to the terms? Are they unfavorable to you? Can they be changed? What standards or regulations must the contract meet? Are you prepared to operate and maintain the attraction as required by the manufacturer? If necessary, seek advice from a professional about these agreements.

2. GET TO KNOW THE REGULATING AGENCY.
Determine which agency regulates the attraction and what requirements it may impose. This will differ from state to state. For regulations regarding zip lines, a good place to start is ziplineinspection.com. For other attractions, head to saferparks.org. Your builder’s operating manual should be in alignment with your jurisdiction’s regulations.


Both the regulatory agency and the manufacturer or installer will mandate requirements for inspections and certain records. Make sure these inspections are done and records are maintained. These steps are a “must” and a bare minimum. Your insurer will want the required inspections done regularly and without exception. If these are completed as required and that documentation is readily available in the event of a claim or lawsuit, your insurer will be in the best possible position to defend you.

3. TRAIN YOUR STAFF.
It’s important to not only train your staff as required by the manufacturer, but also to document and maintain employees’ training. In a lawsuit, plaintiff attorneys almost always allege inadequate training on the part of the operator. To successfully mitigate this, ensure that all required training has been done and is documented.

4. TRAIN YOUR GUESTS.
Training your guests has an entirely different meaning than training team members. Guest training is a much broader concept: it might include postings of warnings and attraction-specific rules, as well as ground school for aerial courses and zip lines.


For written warnings, we suggest an integrated approach through on-site signage and website postings. This will protect you as well as your guests. In a recent court case, an injured guest testified the attraction operator posted no warnings or informational signs. In reality, the operator posted more than 43 warning signs, three large banners, and presented three looping instructional videos in the waiting areas. The operator was able to prove all this by keeping a catalogue of all signs for every operational season. When the time came to reproduce these, the records already existed. Plan to create an information and warning program, and implement a plan to document it.

5. CONSIDER A RELEASE FORM.
Should your guests sign a release? In most cases, if practicable, yes. Some states reject releases as being against public policy and are not allowed. If unsure, consult your attorney. Where they are allowed by law, releases can give you a significant line of defense. Consult your attorney for the wording needed to make your release as effective as it can be in your home state. In states where releases are upheld, courts have granted summary judgments on cases where a plaintiff has signed a release—which means, the court dismisses the case before it ever gets into the courtroom. A summary judgment will reduce defense costs and avoid reputational damage.


Many operations have guests sign a paper release. The newer option is to offer electronic releases, completed online or on-site. While these can be convenient for both operator and guests, there are some key considerations: how is the data stored? For how long it is stored? Will the company be able to reproduce the actual release executed on a given date? In other words, if your e-release changes from year to year, will the provider be able to reproduce, say, last year’s version?


Legal opinions on the use of electronic releases vary. Some attorneys strongly recommend paper and ink releases, while others see e-releases as a natural progression in e-commerce. Consult with your attorney before making your choice.

6. MAINTAIN OPERATIONAL LOGS.
Maintain operational logs. Check with the manufacturer and regulatory agency in your area to determine what logs are required for your particular attraction or operation. Even if not required, consider as a minimum keeping a daily inspection and operations log and a maintenance log. The daily log should include, but not be limited to: staffing, pre-opening inspection, weather conditions, opening or closing of an attraction due to weather or mechanical issues, and maintenance to resolve daily issues. For some attractions there may be other information worth noting on a daily basis.


You should also have a maintenance log that includes both scheduled and unscheduled maintenance done on the attraction. In the event of a claim, such a log will reflect your diligence in maintaining your attraction and concern for safety.

7. LEARN HOW TO INVESTIGATE INCIDENTS.
Uncovering and memorializing the facts of on-site incidents in a timely way is vital should your park or camp need to defend itself. You should have several basic forms on hand for this purpose, among them an incident report form, witness statement form, employee statement form, and diagram forms. A good investigation may also include photographs of the incident scene, a log of warning signs (as mentioned earlier), a signed release, plus any other forms or statements that might be relevant.


During the investigation, the focus is purely on fact-finding—not trying to solve what happened. You can spend time on that later. Not sure about how to conduct a rigorous incident investigation? Contact your insurance claims person or attorney for guidance. They might even be available to help with training. (Also, see “How to Handle an Incident,” Adventure Park Insider, Fall 2016.)

8. CREATE A DOCUMENT RETENTION POLICY.
With all the paperwork required to operate a business, a retention policy is key. This policy should spell out where you will store records, how you will organize them, and how long to retain which documents. Many people assume seven years is the magic number, because it’s the standard for retaining IRS-type documents. Seven years, however, may be irrelevant to your documents. Consult an attorney to see what purposes your documents might serve in the future. Factors to consider might include the statute of limitations in your state. Does the state or manufacturer have any requirements? A local attorney will know, or know how to discover, any of these.


The paperwork outlined here may seem like over-documentation, but it is really just a starting point. In the long run, a good documentation program will pay dividends. Not only is it required in many cases, it will also demonstrate the job you do in your daily operations, should that become necessary.


One way to manage the paperwork is to hire an office manager, especially if you are not trained in or experienced with recordkeeping. This will allow you to focus on other issues. 
Note: The opinions expressed here are those of the author, and should not to be construed as legal and/or tax advice.