There is an OB/GYN where I live who has never been sued. He hasn’t even had a claim made against him in many years of practice. He isn’t any better than his colleagues. He has no more skill with a scalpel than the next doctor. He has even had his share of bad babies.
So what is his secret? What keeps him seeing patients instead of lawyers?
He gives every patient his home telephone number. They rarely use it. When his patients do use it, it is because of some real emergency. They respect his privacy and try to leave him alone. But then, he doesn’t give his number so that people will use it. He gives it to show that he cares. And he is convinced that his show of concern is the reason he has avoided claims.
You may say that this is nonsense, that claims result from poor medicine and the quality of his treatment does not depend on the extent to which a doctor is willing to be bothered at home. After all, good medicine is good science. And whether a doctor is sued should depend on the quality of the doctor’s medicine.
But that type of thinking is purely academic and it ignores what goes on in the real world.
Any good lawyer will tell you that a good way to avoid claims is to show that you care—to leave your customers with the impression that you care about doing a good job and that you care about them. The simple fact is that a customer who feels that he has been mistreated by a business, or that a business is poorly run, is much more likely to bring a claim if he is injured. By the same token, a customer is much more likely to file a claim if he has the impression that a business is not well run.
Consider a hypothetical situation. The weather is awful. Freezing rain is coming down in sheets. Your maintenance crew is on station, spreading salt and shoveling ice away. Your crew is doing the best it can, but it is fighting a losing battle. Meanwhile, Mrs. Johnson has just dropped off her kids, parked the car and is struggling to get into the lodge. She is afraid of skiing because she doesn’t want to fall and hurt herself, so she is going to spend the day in the lodge. She steps on an invisible spot of ice, slips and breaks her hip. Instantly, the maintenance men put down their tools and rush over, laying a blanket over her and comforting her until help arrives.
Now consider a slightly different situation. The weather is the same, the steps are the same and the ice spot is the same, but when Mrs. Johnson is struggling up the steps, there are no maintenance workers in sight. People are slipping and sliding all over the place. Nothing has been shoveled. No salt has been spread. The only maintenance worker in sight is leaning against a ticket window flirting with the young lady inside. This is perfectly legal because state law does not require that sidewalks and stairs be cleared until eight hours after the weather clears and the freezing rain is still falling. Mrs. Johnson steps on the spot of ice, slips and breaks her hip. The maintenance man stops flirting for a moment, looks over, tells the lady at the ticket window to call an ambulance then walks inside for a smoke, shaking his head in wonderment at the silly lady who can’t stand up on ice.
It is not hard to figure out which of these situations is more likely to end up in a claim. It is also not hard to figure out which case your lawyer would find more defensible.
In reality, the concept of “caring” is woven throughout the law. “Negligence” is defined in most states as the failure to use ordinary “care.” In many states, ski areas are held to the standard of “care” that governs the local ski industry. “Care” and “caring” appear throughout the standard jury instructions in most states. The judge tells the jury to consider the level of “care.” The “care” that the law describes is not the same as the “care” we are talking about. In our hypothetical slip-and-fall, the only real issue was whether the ice spot underfoot was present because of a lack of reasonable care in ice removal. The flirting and the head shaking are probably not relevant evidence in court. But the point is that you don’t want to get dragged into court in the first place. A good lawyer will tell you showing you care is a good way of staying away from courtrooms.
Many claims and lawsuits can be avoided if a business follows a few simple rules. They aren’t complicated. In most cases, you probably heard them first from your mother.
1. Look Sharp. A well-run area ought to look well-run. Trash should be picked up. Employees’ uniforms should be well tended. You would not think much of your surgeon if he entered the O.R. with spaghetti sauce on his gown, even if he had the best hands in the world. The sauce concept applies to patrollers and lift attendants, too. When you think about it, they have some pretty significant responsibilities. Those patrollers have to package injured people and get them off the mountain and to the hospital. The lift attendant at the base of your quad chair is responsible for four heads, four necks and eight legs every six seconds. While they are on duty, they ought to look professional.
The same thing applies to trails and trail edges. Generally speaking, there is no law against snowmaking guns thrown into the woods, tangles of hoses and tattered snow fence. In most states, it is not a liability problem either. People generally don’t belong in the woods. But it doesn’t look sharp. It can take only a few seconds to make sure that a snowgun is upright, that a snow fence is properly secured, and that the off trail area is orderly. Does this make a legal difference in court? No. Does it make an impression on your customers? Definitely.
2. Be Nice. Your ski patrol has every right to cut into that half-hour-long lift line and get right onto the chair. But it does not require undue effort for them to say, “Mind if we slip in here?” The folks in line are not going to say, “No.” And it is so much nicer to ask first than to simply cut in line, laughing and joking while the people who have been waiting there so long are forced to wait just a little longer.
Every employee needs to remember that the people wearing those lift tickets are paying their salaries. If your employees are nice to them, there is a better chance that they will be nice to you.
3. Show Compassion. Not long ago, I got a call from a lawyer friend who went to “the dark side” and is now a plaintiff’s lawyer. He had been skiing at a resort in a neighboring state. He had fallen, slid into a wooden fence and tore his knee to shreds.
As soon as the patrollers arrived, they began an inquisition, demanding the details of what had happened and how he could have prevented the accident. Before his skis were even taken off of his boots and his leg was stabilized, the incident report form was shoved into his face. There, in quotations, was an “injured’s description of accident” that he never gave. He told me, “You know, I knew that the accident was my own fault. I fell because I made a mistake. But it just pissed me off that I was being subjected to an inquisition that was obviously designed to make sure that I could never sue if I wanted to.”
The impression you create after an injury is just as important as the impression that you create beforehand. Everyone who has seriously injured himself deserves at least a little compassion. You may be perfectly justified in thinking to yourself that the knucklehead on the sled deserves it because he tucked down a slope when he was drunk. But you can still show compassion. Compassion is not forgiveness. Showing some sympathy for a painful injury is not the same as condoning the conduct that caused the injury.
Some time ago, there was a fatality at an eastern ski area. A young lady had fallen on a most difficult slope, slid off of the trail and hit some rocks. The patrol packaged her, put her in a helicopter and sent her off to emergency surgery. She was declared brain-dead and taken off life support. She died soon after. The accident was entirely her fault. It could have been worse, she could very easily have collided with and killed an innocent child or adult.
The girl’s uncle called. He was her only relative in the United States. On behalf of the family, he wanted to see the place where the accident occurred.
The mountain assessed the situation and called its lawyer. The mountain manager got the impression that the family wanted some answers—some peace of mind. He was inclined to let the uncle visit. The manager and the lawyer talked about the risks and benefits and they decided that the mountain should roll out the red carpet.
When the uncle arrived he was shown all of the incident reports and given an opportunity to see the photographs. The head of the ski patrol met him, took him to the accident site on a snowmobile and showed him around. The patroller answered every question that the uncle asked. The uncle was especially interested in knowing why the patrol had given a donation to the girl’s memorial fund. He learned that the patrol was shaken because someone had died on the mountain and the donation was the patrol’s way of showing sympathy.
Now, any fresh law school graduate would have said that this was insane. The donation could be allowed into court as an admission against interest. An unwise statement to the uncle could have been used against the patrol in court. But the mountain and the lawyer were betting that a show of compassion would keep the matter from ever getting into court.
A week after the uncle left, the mountain received a note. The family wanted to thank the mountain for everything that it had done for their little girl. They had some questions and concern about the trail, its maintenance and the rescue. The uncle’s tour showed them that the mountain really cared about its customers, about the girl and about the family’s loss. Although they were still heartbroken, they knew that their little girl had gotten the best of care and they were grateful.
It does not always work out that way. Under different circumstances, the tour with questions and answers would have been a bad idea. It would have been a bad idea for management to have proceeded without checking first with counsel. But in that particular case, the indications were that this was the right approach to take, the mountain got counsel’s advice and it worked well for everyone.
So the next time you are out on the mountain, look at your employees’ uniforms. Does the place look sharp? Watch how the patrollers and liftees behave. Are they being nice? Are they courteous and professional, or do they appear to be more interested in pleasuring themselves? Are they showing compassion to people who are having a little trouble getting on the lift or getting down the mountain?
If you see something you don’t like, remind the employees to show that they care. And while you are doing it, think about the phrase, “Show you care.” There are two parts to it. One part is the showing. The other part is the caring. By following our three simple rules, your employees will not just appear to be doing a better job, they actually will be doing a better job. That means that your mountain will be better run. It might even mean that you see less of lawyers and courtrooms. And that is always good for everybody.
Christopher C. Spencer is a partner in the Richmond, Va., office of McGuire, Woods, Battle & Boothe, L.L.P. He works with a wide variety of clients, including ski areas, to solve their problems inside and outside. He will be an occasional contributor of insights and suggestions to Ski Area Management.
