By: Jeffrey Ment and Misty Percifield, The Ment Law Group, PC
The outdoor adventure travel market, more than any other tourism branch, is prone to being impacted by natural disaster and other dangerous conditions. Accidents occurring in nature and because of nature are occurrences we must be prepared to handle. Guides, as our front-line employees, are often our guests’ first contact during crisis. Their response can determine how our guests will react. They can be the difference between whether or not a lawsuit is filed. As such we need to make sure they have the tools necessary to lead them to success in the face of crisis.
Give Your Guides Proper Training
First, guides should receive proper training and be given proper authority. Pre-trip planning should include risk management discussions. Possible risks should be identified and training should occur to help guides effectively navigate these risks. Perhaps an obvious point of training is first aid training and certification. Evacuation plans should also be in place in case of injury in backcountry settings. Guides training should include mock crisis training. Proper pre-trip planning can relieve the Guide of having to establish responses while under the stress of crisis. A sample checklist is included at the end of the article.
Give Your Guides Authority to Make Decisions
Guides should also be trained in properly teaching guests how to use specialized equipment and should be trained to recognize guests who are either unable to physically handle challenges or are not properly following instructions. The outfitters terms and conditions should include clauses allowing a guide to make these determinations. For instance, your terms and conditions can include a clause relating to guest conduct. This clause can indicate that guides have the authority to send a participant home for refusing to listen to and respond to guidance. Such a clause will state that should a guest be asked to leave a tour, it will be at their own expense and with no refund.
Guides should be also trained to recognize guests who cannot handle the challenges of the trip. If you have a participant with disabilities, you may be required to make reasonable accommodation. You can protect yourself from liability by requiring the guest to travel with a person who can assist them and by making it clear in your terms and conditions that the outfitter cannot provide any special assistance. You can also include in this clause language that makes the participant responsible for additional costs, for instance the cost of renting a hand cycle for a biking trip.
Furthermore, every guest should sign a risk assumption form and waiver that will protect the outfitter should the guest be injured while on tour. These waivers not only add additional protection, but they can also act as a warning to guests, informing them of all possible risks, and advising them that is their responsibility to assure they are fit enough to participate. This puts the guest on notice, so they can make an informed decision. If outfitters prepare in advance, this will allow the guide to speak with authority and uphold the company policies. While the guest may be frustrated, our ultimate responsibility is to ensure the safety of all guests. Guides should feel empowered to take actions, including sending guests home that fall into these categories. This ability can prevent injury and crisis from occurring in the first place.
Communication is key
Communication between guides is an invaluable source of risk management/avoidance. In an instance we handled in the past, a dangerous condition was known by a river guide but was not communicated up the chain, and not passed on to other guides. The result was a tour group coming upon the condition unaware, resulting in serious injuries including death. Proper communication could have prevented this crisis from occurring. Guides should be trained to note dangerous conditions and should be trained in how to abate those conditions and/or how to properly report them up a chain of command to ensure that all guides know about the condition until it can be abated.
Specifics of Incident Response
What should guides do when crisis actually strikes? Let’s take the case study above with the dangerous condition on the river. Once the original crisis is over, the first, and most important thing the guide can do is stay calm and take control of the situation. If a guide can portray an image of calm control, this can go a long way in calming the guests and creating a positive impression.
The guide should check with each guest for any injuries. It is important that while doing this the guide listen carefully and reassure guests that she will help them through the event. Guides should be trained to reassure while not imputing blame to either themselves, the outfitter, or other guests. The guide should immediately contact emergency services for assistance and render first aid as necessary. If emergency services are not available, pre-trip planning should have covered evacuation. Guides should also take guest statements of the account as soon as practicable. By doing this, the guide makes themselves a very useful witness and also gives guests a positive impression.
The guide should also immediately contact the operator to report the incident so that the operator can provide timely assistance. The sooner the operator is aware and can render assistance the better and more positive impression is left with the guest.
Finally, the guide should take specific note of their surroundings and how the accident occurred. In our river example, the guide should take note of the position of the boats and the guests, before during and after the accident. The guide should be aware of the height of the river, the weather that day, and should make special notes on the condition that caused the incident. The guide should check all of the equipment for damage caused by the incident. The guide should, as soon as practicable, write a summary of every part of the incident as it occurred and all of their observations. Being an observant witness who has written down the sequence of events soon after the incident can provide an invaluable witness should a lawsuit be filed.
In the event of a lawsuit being filed, the guide, and not the company CEO, will become the most important witness! Words used by the guide can either make or break the case. Guides must be trained on how and what to say to the group. Take the example of our river trip. After the initial accident the guide should offer assurance. The guide may say, “We are working to get our trip back on track as soon as possible.” They can tell the group that the outfitter has been informed and is working on a solution. They can update the group on the status of when medics will arrive to help. More importantly they should NOT say things like, “We knew this part of the river was dangerous for travel.” Or “I just found out that one of our guides knew about this issue and didn’t tell me.” Or “I am really sorry; this was my fault.” Guides should expect that after an accident that they will need to speak with the company’s insurer and legal counsel. Guides must be mindful to not speak about fault as their words can be taken out of context and be harmful to the company.
As our first-line employees in the face of crisis, guides can be the difference between how guests react to such incidents. If guides are properly trained and given the tools necessary to handle such events calmly and with leadership, our guests are more likely to recognize their competence and less likely to take legal action.
Pre-season checklist
- _____CPR and First Aid Certification (Wilderness First Aid or Wilderness First Responder if necessary)
- _____ Equipment training (this should include proper use and general repair training)
- _____ Crisis paperwork training. This should include taking guest statements and properly filling out an accident report form. This should also include how to talk to guests.
- _____ Risk Management Meeting. Should include all relevant decision makers for the tour and the guide and should cover the following:
- _____ Chain of command for crisis. The guide should have contact information for all relevant decision makers and the order in which they should be contacted.
- _____ Reviewing all routes and conditions on the tour. Assessing dangerous areas and preparing a plan for safety in those areas. This should also include any updates from recent tours. This is where any new reported dangers should be discussed and analyzed.
- _____ Evacuation plans. Discuss any areas on the route where medical access is limited. Guides should be given a firm evacuation plan for remote areas.
- _____ Mock Emergency Drill
- _____ Account for all guests
- _____ Provide First Aid
- _____ Contact EMS or plan for and execute evacuation
- _____ Contact Relevant Decision Maker based on chain of command
- _____ Speak with guests to collect statements. Assurances not apologies.
- _____ Take account of all of the details of the incident and record on accident report form.
About the Author
For close to 30 years, Connecticut-based Jeff Ment has provided legal representation to companies and individuals in the tourism industry, with clients spanning the globe and many in the wellness space. His experience ranges from helping form new companies to defending lawsuits. His focus is ensuring that clients are always ahead of the curve - following best practices. This includes risk management, regulatory compliance, seller of travel registration, IATA/ARC issues, vendor selection, tour director training, and insurance coverage. As a former travel advisor, airline sales manager and tour guide, he relies on personal experience to understand what travel clients need.
Website: www.mentlaw.com