NOTES ON MAYFLOWER MODELING
For one with a passion for things Mayflower, creating a replica of the ship in miniature is a rewarding way to express it. This article will discuss some of the options and considerations for anyone intending to make a Mayflower model. Fully assembled models are readily available but will not be discussed here.
A prime consideration in creating a model of an historic ship is to achieve as high a degree of accuracy as possible. Some famous ships that are favorites of modelers still exist, such as the U.S.S. Constitution and H.M.S. Victory. Accuracy there is limited only by the modeler’s skill. Other ships no longer exist but are well documented with plans, photographs, paintings and detailed written descriptions.
A highly detailed description of the Mayflower is found in the carefully researched Land Ho! 1620 by W. Sears Nickerson. Unfortunately, his description is almost entirely speculative, as Mr. Nickerson readily admits. It is based upon William Bradford’s statement that the Mayflower was of 180 tons burden, or about 244 gross tons, available records of the Mayflower’s service as a cargo carrier, and knowledge of similar merchant vessels of the time. This allows the modeler some flexibility in such things as color and deck plan, but also creates striking differences in the models available in kit form; no two Mayflower kits will produce the same ship.
In choosing a Mayflower kit, the first decision is whether to use plastic or wood; both are available. The advantages of plastic kits are that they are less expensive and easier to make. Wooden kits can be very challenging and time consuming. The finished product of a plastic kit is far less satisfying, however. The author had made both plastic and wooden kits of other ships before trying the Mayflower and completed a plastic kit, as a way of gaining knowledge of the ship before tackling the wooden kit. The plastic kit turned out well and is displayed on the wall below his Society of Mayflower Descendant’s membership certificate. It was made from a 1:96 Airfix kit produced by Humbrol Limited.and cost about $50. Heller, Trumpeter and Revell also make or have made plastic kits of the Mayflower. Kits no longer produced may still be available on the internet.
Wooden kits come in two basic forms: solid hull and plank on bulkhead hollow hull. Again both have advantages and disadvantages. A solid hull kit begins with a roughly shaped piece of wood that must be finished into a hull by the modeler. Mistakes in removing too much wood may be difficult to repair, however with care a fine appearance can be achieved in less time than building a hollow hull model. The author finds the solid hull kits he has made to be satisfying in the result but less so in the process of making them.
Hollow hull model ships are made in much the same way a real ship is made. One starts with a keel, adds bulkheads and decking to stiffen the frame, then builds up the sides plank by plank. This is a challenging and time consuming process but is well worth the effort. Each plank is a thin, straight strip of wood that must be permanently bent, cut and fitted to the bulkheads so as to conform to the curves of the hull. Often the instructions that come with the kits, particularly those manufactured in Europe, do not explain how to do this; it is assumed that anyone attempting this type of kit will know the process. It involves steaming and careful measurement. The author’s work in progress is of this type from a 1:64 kit by Artesania Latina, S.A. Similar kits cost in the range of $145 to $270 and use scales from 1:60 to 1:70.
How does one chose the kit that will most closely resemble what we think we know about the real ship? Several specific areas of the vessel may be looked at to see differences in the design of the available models. First, the transom, or “rear end ”of the ship, may be broad top and bottom, or broad at the waterline but narrowing considerably at the top. The author’s opinion is that the latter is more accurate. In both naval and merchant vessels, the captain’s cabin was in the stern. Broad transoms were typical of naval sailing vessels, naval captains needed a large cabin for the convenience of their rank, to hold conferences and occasionally for small cannon to shot at a chasing enemy. Merchant ships of the era had transoms that were much narrow at the top. Merchant captains had to make due with smaller quarters, it seems. The narrow at the top transom was typical of the small English merchant galleons of the late 16th - early 17th Century, and we believe the Mayflower was of this class.
Another difference seen in the models is the number and placement of cannon. The Mayflower probably carried some cannon as this was typical for merchant vessels of the era. They needed some protection from pirates. Most models, and the Mayflower II replica, have 4 gun ports on each side at the gun deck level below the main deck and 2 more ports in the transom. Some models have several cannon placed on the main deck.
Cannon were heavy and in significant number would slow the ship down. The cannon and the gun power need to fire them were expensive, and crews had to practice to be able to use them effectively. The merchant owners then, as now, were concerned with profit and saving expense. Each cannon required a crew of about 4 men to load, run out, fire and retract and swab during combat. Even if fighting an enemy on a single side, a merchant ship would have great difficulty firing a broadside of cannon and at the same time maneuvering the ship with the available crew.
It is very likely, however, that the cannon were removed when the ship was used to take the pilgrims to America. There would have been little foreseeable need for them and the added weight would have been something to avoid.
The wooden model being made by the author has no gun deck ports below the main deck. We don’t know which is correct, however if there had been gun ports cut in the hull, they could have been opened, weather permitting, and allowed in some much needed fresh air for the passengers. As the passengers complained about the lack of fresh air below the main deck, it seems likely that any gun ports were sealed shut for the voyage to America.
Finally, placement of the bow sprint should be considered. It is that long pole angling up at the front (bow). Some models have the bow sprint entering the foredeck in the mid-line of the ship. Actually, it was probably offset a little to the starboard (right)-
side to allow it to be run back past the foremast which would be set exactly in the midline. A small detail, perhaps, but to the careful modeler an important one.
Most of the models, plastic or wooden, come with sails that may be set at the option of the modeler. Many pictures of models show all of the sails set. If one decides to set sails, it is important to remember that setting all of the sails at once would be correct only for certain relative wind directions and strengths and would not be done as a general rule. For example, the triangular lateen sail on the mizzen mast would be set for sailing upwind but not when running downwind with yards squared. The modeler should consult accurate paintings of ships under sail to give his model a more realistic appearance.
Those desiring more information about and pictures of some of the available Mayflower models may look at the following websites:
mamolimodel.com
drydockmodels.com
historicships.com
hobbylinc.com
Tuesday, August 4, 2009
Self Defense Responsibilities of Marial Artists
SELF DEFENSE RESPONSIBILITIES OF MARTIAL ARTISTS
Peter B. King, J.D.
Nidan
Introduction
When a martial artist reaches the black belt level, he or she should have developed an understanding of the different results to be expected from the use of various techniques. This understanding is needed for the martial artist to comply with the legal and ethical requirement that the use of force in self defense or defense of others must be limited to that which is reasonably necessary. The use of excessive force causing disability or death to the attacker cannot be justified, even when the attacker was in the wrong, and may result in legal consequences to the martial artist. In other words, the degree of response must be proportional to the degree of attack. Instructors of the martial arts have a legal and ethical responsibility to give their students the knowledge needed to form this understanding.
By injuring another with the use of force, one faces both the possibility of being charged with the crime of assault and also being held monetarily liable for the injured person’s medical expenses, pain, disfigurement, loss of income, loss of ability to gain income and similar “damages.” For significant injuries, these monetary damages could be catastrophic. As these injuries would be deemed “intentionally inflicted” liability would almost certainly not covered by an insurance policy.
Reasonable Force Doctrine
As the writer is in Wisconsin, references will be made to the legal standards of that state. Similar standards may apply in other states, but laws and the wording of legal standards among states do vary somewhat. The legal standard for use of force in self-defense in Wisconsin is that a person has a right to use the force “reasonably necessary under the circumstances” to defend his person when he reasonably believes that his life is in danger or that he is likely to suffer bodily harm. It is important to understand that the defender (i.e. the martial artist) would have the burden of proving that he acted in self defense, that the use of some force was necessary and that the amount of force used was reasonable under the circumstances.
Case law holds that oral abuse alone is not sufficient to justify the use of force, however the defender’s knowledge of previous threats made by the attacker and any dangerous propensities exhibited by the attacker may, in some cases, justify initiating the use of force to prevent an attack.
The law is not as clear in answering the question of what force a martial artist may use to defend others from physical abuse. The answer to this question would probably depend on a number of factors, such as the ability of the intended victim to defend himself, the relationship of the martial artist to the intended victim, the nature of the perceived threat and the degree of force used to counter it.
The standard for using force to defend one’s property, as opposed to one’s person, is somewhat different. Wisconsin law categorically states that “it is not reasonable to use force likely to cause death or great bodily harm in defending one’s property.” The term “great bodily harm” is defined as bodily injury that creates a substantial risk of death or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury. The use of “some force” would be allowed if it were reasonable to believe that such force was necessary under the circumstances.
Clearly, martial artists are trained to use techniques that may be “likely to cause death” or “great bodily harm,” but do they understand that those are the effects of those techniques or the legal ramifications of their use? Do they receive that knowledge in their training?
The word “reasonable” has been used repeatedly in defining the degree of force allowed for self defense. What is a “reasonable” amount of force to be used in self-defense will vary widely depending upon the particular facts and circumstances of each case. A person who seeks to prove his actions were reasonable will have those actions judged against the standard of what a “reasonable person” of similar abilities, training, knowledge and experience would have been expected to do if faced with the same threatening circumstances. Therefore, a person with martial arts training would be judged against the standard of a reasonable martial artist with approximately the same level of training and skill. A black belt would be expected to have a greater ability to select the specific techniques and the degree of power appropriate to the situation requiring self defense than would a lower rank martial artist or a person with no martial arts training.
Wisconsin law also holds that the aggressor in a fight is not entitled to fight in self defense against the person he provoked apart from two situations. First, the aggressor may defend himself if he believes that he is in imminent danger of serious injury or death. Second, the aggressor may re-establish his right to use force in self defense if he has clearly communicated to the other person that he does not intend to continue the fight but the other persists in fighting.
Degrees of Force
The degrees of force used in self-defense may be analyzed by comparing several levels of threats and counters. Following a discussion of these levels, we will turn to the target areas of the human body and the possible harm that may be done by blows to those areas.
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Level 1 Psychological deterrent.
An attack may be deterred in some situations without the use of physical force. The appearance of martial bearing, a grimace and even the martial yell (kiai) may be effective in deterring some attacks where the attacker is rational and not deeply committed to the use of violence. A seemingly opposite bearing may also be effective. The martial artist may present an aspect of supreme self confidence and inner calmness (shibumi) that may be very discouraging to an attacker whose goal is primarily to bully and control others. it must be recognized, however, that the use of such deterrents may, in some cases, incite and inflame the irrational or committed attacker to greater use of violence.
Level 2 Pain pacification
In countering an attack, a martial artist may inflict pain upon the attacker and thereby cause him to desist. Typically, the attacker deterred by pain would be one who is attacking impulsively out of sudden anger. It may not be effective on an attacker who is acting out of premeditated malice or with the intent of committing a crime. At this level, the pain would be inflicted by use of techniques that do not facture bones or otherwise cause permanent injury and disability and that carry a low risk of causing death. The use of throws and joint locks are examples. Kicks and strikes to non-vital areas of the attacker’s body may also be effective. Such areas would include the thighs and abdominal region below the rib cage.
Level 3 Counters intended to cause injury and disability
The martial artist may find it necessary to inflict injury and cause disability upon an attacker who cannot be deterred by at one of the lower levels. Generally, this attacker would be one who is acting out of pre-meditated, criminal intent or who is acting irrationally under the influence of drugs or alcohol but without the use of weapons or otherwise displaying deadly intent. The degree of injury and disability caused by the defensive counter may be temporary or permanent. The martial artist must appreciate both his own ability to use a technique effectively and the potential for injury at the targeted part of the opponent’s body. Areas of the body that may be targeted for injury and disability without significant risk of death would be the insteps, hands, knees, legs and the arms. Strikes to the groin and rib cage may be in this category if done with some moderation.
Level 4 Counters with significant risk of causing death
Legally and ethically, countering with techniques carrying a significant risk of causing the death of the attacker must be confined to situations where it is necessary to deter the potential loss of a victim’s life. A prime example would be where the attacker is using a weapon such as a firearm or knife. The use of deadly force to defend one’s home against an unarmed intruder is problematical. It may be allowed under the laws of some states, but is not allowed in all. Strikes to the head, face and neck must be seen as always carrying a risk of death. While death will not result in all cases where such strikes are employed, the martial artist must understand that targeting of any vital area of the opponent’s body always carries that risk. Blows to the rib cage, in addition to fracturing ribs, may cause injury to internal organs such as the lungs, heart, spleen, liver and kidneys. Injury to any of these organs may result in death. Fracture of the pelvis may easily result in enough internal bleeding to cause death. An added problem in causing injury to internal organs is that there is no effective pre-hospital emergency care for such injuries. External bleeding may be controlled by direct pressure and bandaging; the control of internal bleeding usually requires surgery.
Targets and Risks
A lesson that is taught in most martial arts styles is that any part of the human body may be a target for a blow. (Similarly, it is taught that almost any part of the body may be used as a weapon.) Whether a martial artist learns to use techniques that focus on specific areas of the body as targets, or whether he learns to flail indiscriminately against the opponent’s body, he has a deep responsibility to understand the risks involved and the potential for causing serious or deadly harm. In this section, we will look at various parts of the human body, the anatomy of each and the potential results of causing injury to each.
The Cranium
The part of the body commonly called the “head” or “skull” has two main parts, the cranium and the face. The cranium is a closed bone box with only one major opening. While there are small openings for nerves and vasculature to enter, the one major opening (foramen magnum) is found at the base where the skull fits over the spine and the spinal cord enters into the cerebellum.
The cranium has strong boney protection at the front and back, but less at the sides and top. The back of the cranium is protected by a thick, solid bone mass (occipital bone.) The front of the cranium also has good protection, however the bone in this area (frontal bone) is porous, “designed” to absorb impact. Blows to the front and back of the cranium may cause serious injury without directly fracturing these bones. The force of the blow may cause the cranium to move violently backwards or forwards. This may transfer the force of the blow to the upper spinal cord or to the brain tissue. Injury to the spinal cord may result in permanent paralysis to major parts of the body, depending on the level of the cord where damage occurs. Injury to the spinal cord at level of the 3rd cervical vertebrae or above may be fatal as it may cause complete paralysis of the muscles used for breathing.
If the brain tissue is injured, it does what any bruised soft tissue does: it swells. Swelling under the skin will cause an expansion or raised area called a hematoma. If the brain swells, however, it has nowhere to expand except into the one opening of the closed box. As discussed above, this opening is where the brain stem is located. Thus, the swelling will result in the brain stem being squeezed against the opening. That is a very bad thing; injury to the brain stem is often fatal. The brain stem regulates basic vital functions of the body, including respirations, temperature and the cardiac system. If these functions are stopped or interrupted for more than a few minutes, the body will die.
The sides of the cranium are rather thinly protected by the temporal bones. These bones are more easily fractured than those in the front and back. In addition, the blood supply for the brain runs under these bones, through the tissues (meninges) that cover the brain.
If the vessels in this area are damaged, the bleeding can cause compression of the brain similar to the swelling effect discussed above. Bleeding above the dural layer of the meninges (epidural bleeding) can result in death after only a short time after the injury is inflicted, measured in hours. Bleeding under the meninges (subdural bleeding) may also cause death, but the serious effects may not appear as quickly. Time prior to death may be measured in days. Prior to death, the injured person would experience altered levels of consciousness, slurred speech, blurred vision and other abnormal signs and symptoms.
The top of the cranium is not as well protected as the front and back, but it does not have the same degree of vasculature as the sides. Injury to the top of the cranium runs the same risk of brain tissue swelling as in other areas.
The Face
The face hangs as an appendage from the cranium, given form by irregular bones in the cheeks and jaws. Non fatal injuries from direct blows to the face include impairment or loss of sight and smell, broken teeth and disfigurement. Because the soft tissues of the face, including the skin, have excellent blood supply, open wounds in the face often bleed profusely. (Significant blood loss, even if not resulting in immediate death from hypovolemic shock, may cause permanent damage to internal organs such as the liver and kidneys that may ultimately result in a later death.)
The face is an obvious, perhaps instinctual, target for attack or retaliation. Blows to the face may easily cause a momentary loss of consciousness or imbalance that allows the other to escape or deliver additional attacks.
Fatal injuries to the face are rare but may occur if they compromise the airway or transfer sufficient energy to the brain or spine to cause neurological damage. Obstructions to the airway may happen in several ways. Blood from soft tissue injury may drain into the airway, as may parts of broken teeth. Obstruction of the airway may also result from aspiration of vomit and from the swelling of tissues in the throat. Opening the airway and keeping it open is the absolute first priority of emergency medical care. Without a patent airway, the injured person has no chance of surviving.
The bones of the face may be broken by strikes or kicks delivered in martial arts combat.
The bones protecting the eyes are quite strong and not easily broken. The jaw bones are less able to withstand blunt trauma. A low energy blow to the mandible (lower jaw bone), even if it does not break the bone, may transfer enough energy to damage the temporal-mandibular joint (TMJ) at the base of the jaw near the ear. If damaged, this joint may “click” each time the jaw is opened to speak or eat for the remainder of the person’s life. That could be a fairly high money damage item in court.
The Neck
The neck is a complex structure filled with things the body depends upon for life. These include the cervical spinal cord, the vessels supplying the brain with blood, the trachea providing the body with oxygen, the esophagus and numerous nerve bundles controlling many body functions. Any forceful blow aimed at the neck carries the potential for causing serious injury or death. A blow aimed at the front of the neck may cause a fracture, collapse or severe swelling of the trachea. Any of these effects may result in a fatal airway obstruction. A blow aimed at the side of the neck may damage veins or arteries, but will more likely cause damage to the nervous system that may be temporary or permanent. The cardiac system may also be adversely affected by nerve damage in the side of the neck. In a person who already suffers from cardiac insufficiency, the effect may be fatal.
The Shoulder Girdle
The shoulder girdle is generally well protected by strong bones and muscles and is not a prime target for attack by a martial artist, with one exception. The collar bone (clavicle) is a target, being the most frequently broken bone in the human body. This bone is a long, thin cylinder that forms a necessary frontal strut for the shoulder girdle. If this strut is broken, the entire upper extremity on that side becomes unusable. This bone is quite strong along its longitudinal axis, but is easily broken by torsion or by a transverse blow such as the hammer fist strike in the Peian Nidan Kata. Broken bones have extremely sharp edges, and most of the damage and danger from bone fracture is due to the destruction of soft tissue (vessels, nerves, muscles, connective tissue) by the broken edges following the fracture of the bone. The clavicle is placed over the top lobe of the lung, and a midshaft fracture of the clavicle may cause a broken end to puncture the lung. This may lead to air from the lung filling the pleural “space” outside the lung, causing the lung to collapse. This condition, called a pneumothorax, may be fatal. This is also true for blows to the chest.
The Chest
The chest, or thorax, is an area of the body with vital internal organs, including the lungs, heart, trachea and esophagus, protected by the ribs and sternum in the front. Technically, the thorax has the diaphragm as its lower boundary, so the ribs also protect some of the abdominal organs below.
Blows to the anterior chest wall may fracture the bones that protect the chest, the ribs and sternum. These bones are not particularly strong against direct blows. Such fractures are usually not fatal in themselves, however the problem of broken bone ends being pushed into internal organs, such as the lungs discussed above, also applies here. If three or more consecutive ribs are broken in two places, this creates a floating rib area known as a “flail chest.” Because this will impair breathing, it is a serious condition that could be fatal.
Blows to the chest may also seriously impair the proper functioning of the heart. A direct blow the surface of the chest over the heart may cause severe bruising and swelling of the heart muscle or bleeding into the sac enclosing the heart. These are potentially lethal injuries. The heart is an electrical pump. Even an indirect blow to the chest wall may interrupt or completely disrupt the heart’s electrical wiring, causing chaotic activity called ventricular fibrillation. If not quickly reversed, this will result in death.
The Abdomen
The abdomen is the area of the body below the diaphragm and above the pelvis, bounded in the back by tissues separating the intestines from the kidneys. The upper part of the abdomen is protected by the lower rib cage. The internal organs under the ribs include the spleen, gall bladder, pancreas and most of the liver and stomach. The lower abdomen is protected only by the abdominal muscles and a layer of fatty tissue.
Blows to the abdomen carry the risk of injury to the internal organs. All of them are susceptible to being bruised, “fractured” or lacerated by blunt trauma. Internal bleeding from an injured internal organ is nearly impossible to stop outside a hospital.and
may easily cause death from hypovolemic shock. Even without fatal bleeding, injury to internal organs may impair their function to such a degree that the person is in serious danger.
The Back
The back is protected by the shoulder girdle bones and thick muscles at the top and by the spine and ribs throughout. The primary dangers from blunt trauma to the back come from broken ribs puncturing the lungs and from damage to the kidneys. The latter, in particular, can become a fatal condition due to uncontrolled internal bleeding.
The Pelvis
The pelvis is well protected by a girdle of strong bones. If fractured, however, this girdle usually breaks in more than one location and can easily result in massive, fatal blood loss. A well delivered front kick to the pelvis may be capable of breaking the pelvis.
The Genitalia
All marital artists recognize the male genitalia as a target. Being exposed, they are clearly susceptible to blunt trauma. However, the female genitalia may also suffer damage and hemorrhage from trauma even though not as exposed. Blunt trauma to these areas in either gender is rarely fatal. The greatest danger of fatal injury here is due to the rich blood supply. Any avulsion (ripping and tearing away of the skin or organ) may cause serious bleeding.
The Extremities
The arms, hands, legs and feet make up the extremities. Trauma confined to these structures rarely results in death. (One exception would be bi-lateral femur fracture, an injury unlikely to result from martial arts combat.) The elbow and knee joints and the bone assemblies of the hands, wrists and feet are finely crafted and easily damaged. Nerves, particularly in the forearms, are close to the skin and easily bruised. Because humans depend on the proper functioning of these structures for gainful employment, recreation and virtually all other waking activities, the significant impairment of any of them can be a serious concern, even if temporary in duration. Martial artists learn a number of techniques to crush, twist, and break these structures. These techniques may be deemed lesser as not carrying a risk of death, but injuries caused by them may cause significant disability, loss of income, loss of enjoyment of live and expensive/protracted medical care. These techniques cannot be used indiscriminately.
Continuing Responsibilities
The moral and ethical responsibilities of a martial artist do not end with having successfully stopped an attack with the use of counter force. If the assailant has been injured and further attack is not expected, the martial artist has a further ethical and even legal responsibility to seek emergency medical assistance while rendering reasonable aid to the injured assailant. Aid that can be given to an injured person by another untrained in emergency care may include efforts to clear the airway, protecting the injured person from unnecessary movement and holding a dressing (improvised is fine) over an active bleeding site.
Perhaps the most important responsibility would be to call for emergency medical assistance as soon as it is safe to do so. Medical professionals refer to the Golden Hour following a serious injury in which the chances of recovery depend on getting the injured person to definitive medical care, which may often mean into the surgical suite. During that Golden Hour, the injured person’s internal compensatory systems are hard a work attempting to keep vital organs viable, however those systems may begin to fail with the passage of time.
Having causing injury to another, if the martial artist failed or refused to call for emergency response and to render reasonable immediate aid to that person, he could be charged with outrageous abandonment and held financially liable for it in addition to any damages caused by using force above the level of reasonable force.
Conclusion
The martial arts were developed in cultures that did not have a sophisticated legal system including a reasonable force doctrine, victim’s rights and civil litigation for damages. The ethic of the bushido code may have discouraged samari and other martial artists from the indiscriminate use of the deadly techniques they had perfected, but it did not impose the degree of legal oversight facing marital artists of today.
A martial artist forced to use his training in a real-like situation will, in almost all cases, be required to justify his actions in a legal setting. This setting may vary from a simple ordinance charge of disorderly conduct, to a criminal charge of assault and battery or even homicide, to a civil law suit seeking damages for intentional infliction of injury.
Martial artists are trained through many hours of self defense drills, one (or multiple) step drills, katas and sparing to use a huge collection of techniques: strikes, kicks, blocks, throws and sweeps, designed to make forcible contact with various part of the opponent’s body, to overpower him and defeat him. The choice of technique used in training is governed by: 1) the position of the martial artist’s body in relation to the opponent’s body (front, side, back), 2) the distance between them, and 3) the technique that would logically follow the prior technique just delivered or the block made of the opponent’s attack. In law, however, the “proper” technique is governed by one, utterly different standard: the reasonable force doctrine. The consequences of not choosing the correct technique in law can be catastrophic for the martial artist (and the opponent.) Every martial artist’s fantasy of finally using his training successfully in a real fight to protect himself or other innocents, should be followed by the very real nightmare of being told in a court of law that the techniques he so successfully used do not meet the reasonable force standard and he will either be punished as a criminal or held liable for the opponent’s damages.
To be martial artists in 21st Century America, we must face the reality of the standards imposed upon us by our society. We must train with knowledge and understanding of the consequences of our art. As instructors, we have an enormous responsibility to give this knowledge and understanding to our students.
Peter B. King, J.D.
Nidan
Introduction
When a martial artist reaches the black belt level, he or she should have developed an understanding of the different results to be expected from the use of various techniques. This understanding is needed for the martial artist to comply with the legal and ethical requirement that the use of force in self defense or defense of others must be limited to that which is reasonably necessary. The use of excessive force causing disability or death to the attacker cannot be justified, even when the attacker was in the wrong, and may result in legal consequences to the martial artist. In other words, the degree of response must be proportional to the degree of attack. Instructors of the martial arts have a legal and ethical responsibility to give their students the knowledge needed to form this understanding.
By injuring another with the use of force, one faces both the possibility of being charged with the crime of assault and also being held monetarily liable for the injured person’s medical expenses, pain, disfigurement, loss of income, loss of ability to gain income and similar “damages.” For significant injuries, these monetary damages could be catastrophic. As these injuries would be deemed “intentionally inflicted” liability would almost certainly not covered by an insurance policy.
Reasonable Force Doctrine
As the writer is in Wisconsin, references will be made to the legal standards of that state. Similar standards may apply in other states, but laws and the wording of legal standards among states do vary somewhat. The legal standard for use of force in self-defense in Wisconsin is that a person has a right to use the force “reasonably necessary under the circumstances” to defend his person when he reasonably believes that his life is in danger or that he is likely to suffer bodily harm. It is important to understand that the defender (i.e. the martial artist) would have the burden of proving that he acted in self defense, that the use of some force was necessary and that the amount of force used was reasonable under the circumstances.
Case law holds that oral abuse alone is not sufficient to justify the use of force, however the defender’s knowledge of previous threats made by the attacker and any dangerous propensities exhibited by the attacker may, in some cases, justify initiating the use of force to prevent an attack.
The law is not as clear in answering the question of what force a martial artist may use to defend others from physical abuse. The answer to this question would probably depend on a number of factors, such as the ability of the intended victim to defend himself, the relationship of the martial artist to the intended victim, the nature of the perceived threat and the degree of force used to counter it.
The standard for using force to defend one’s property, as opposed to one’s person, is somewhat different. Wisconsin law categorically states that “it is not reasonable to use force likely to cause death or great bodily harm in defending one’s property.” The term “great bodily harm” is defined as bodily injury that creates a substantial risk of death or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury. The use of “some force” would be allowed if it were reasonable to believe that such force was necessary under the circumstances.
Clearly, martial artists are trained to use techniques that may be “likely to cause death” or “great bodily harm,” but do they understand that those are the effects of those techniques or the legal ramifications of their use? Do they receive that knowledge in their training?
The word “reasonable” has been used repeatedly in defining the degree of force allowed for self defense. What is a “reasonable” amount of force to be used in self-defense will vary widely depending upon the particular facts and circumstances of each case. A person who seeks to prove his actions were reasonable will have those actions judged against the standard of what a “reasonable person” of similar abilities, training, knowledge and experience would have been expected to do if faced with the same threatening circumstances. Therefore, a person with martial arts training would be judged against the standard of a reasonable martial artist with approximately the same level of training and skill. A black belt would be expected to have a greater ability to select the specific techniques and the degree of power appropriate to the situation requiring self defense than would a lower rank martial artist or a person with no martial arts training.
Wisconsin law also holds that the aggressor in a fight is not entitled to fight in self defense against the person he provoked apart from two situations. First, the aggressor may defend himself if he believes that he is in imminent danger of serious injury or death. Second, the aggressor may re-establish his right to use force in self defense if he has clearly communicated to the other person that he does not intend to continue the fight but the other persists in fighting.
Degrees of Force
The degrees of force used in self-defense may be analyzed by comparing several levels of threats and counters. Following a discussion of these levels, we will turn to the target areas of the human body and the possible harm that may be done by blows to those areas.
.
Level 1 Psychological deterrent.
An attack may be deterred in some situations without the use of physical force. The appearance of martial bearing, a grimace and even the martial yell (kiai) may be effective in deterring some attacks where the attacker is rational and not deeply committed to the use of violence. A seemingly opposite bearing may also be effective. The martial artist may present an aspect of supreme self confidence and inner calmness (shibumi) that may be very discouraging to an attacker whose goal is primarily to bully and control others. it must be recognized, however, that the use of such deterrents may, in some cases, incite and inflame the irrational or committed attacker to greater use of violence.
Level 2 Pain pacification
In countering an attack, a martial artist may inflict pain upon the attacker and thereby cause him to desist. Typically, the attacker deterred by pain would be one who is attacking impulsively out of sudden anger. It may not be effective on an attacker who is acting out of premeditated malice or with the intent of committing a crime. At this level, the pain would be inflicted by use of techniques that do not facture bones or otherwise cause permanent injury and disability and that carry a low risk of causing death. The use of throws and joint locks are examples. Kicks and strikes to non-vital areas of the attacker’s body may also be effective. Such areas would include the thighs and abdominal region below the rib cage.
Level 3 Counters intended to cause injury and disability
The martial artist may find it necessary to inflict injury and cause disability upon an attacker who cannot be deterred by at one of the lower levels. Generally, this attacker would be one who is acting out of pre-meditated, criminal intent or who is acting irrationally under the influence of drugs or alcohol but without the use of weapons or otherwise displaying deadly intent. The degree of injury and disability caused by the defensive counter may be temporary or permanent. The martial artist must appreciate both his own ability to use a technique effectively and the potential for injury at the targeted part of the opponent’s body. Areas of the body that may be targeted for injury and disability without significant risk of death would be the insteps, hands, knees, legs and the arms. Strikes to the groin and rib cage may be in this category if done with some moderation.
Level 4 Counters with significant risk of causing death
Legally and ethically, countering with techniques carrying a significant risk of causing the death of the attacker must be confined to situations where it is necessary to deter the potential loss of a victim’s life. A prime example would be where the attacker is using a weapon such as a firearm or knife. The use of deadly force to defend one’s home against an unarmed intruder is problematical. It may be allowed under the laws of some states, but is not allowed in all. Strikes to the head, face and neck must be seen as always carrying a risk of death. While death will not result in all cases where such strikes are employed, the martial artist must understand that targeting of any vital area of the opponent’s body always carries that risk. Blows to the rib cage, in addition to fracturing ribs, may cause injury to internal organs such as the lungs, heart, spleen, liver and kidneys. Injury to any of these organs may result in death. Fracture of the pelvis may easily result in enough internal bleeding to cause death. An added problem in causing injury to internal organs is that there is no effective pre-hospital emergency care for such injuries. External bleeding may be controlled by direct pressure and bandaging; the control of internal bleeding usually requires surgery.
Targets and Risks
A lesson that is taught in most martial arts styles is that any part of the human body may be a target for a blow. (Similarly, it is taught that almost any part of the body may be used as a weapon.) Whether a martial artist learns to use techniques that focus on specific areas of the body as targets, or whether he learns to flail indiscriminately against the opponent’s body, he has a deep responsibility to understand the risks involved and the potential for causing serious or deadly harm. In this section, we will look at various parts of the human body, the anatomy of each and the potential results of causing injury to each.
The Cranium
The part of the body commonly called the “head” or “skull” has two main parts, the cranium and the face. The cranium is a closed bone box with only one major opening. While there are small openings for nerves and vasculature to enter, the one major opening (foramen magnum) is found at the base where the skull fits over the spine and the spinal cord enters into the cerebellum.
The cranium has strong boney protection at the front and back, but less at the sides and top. The back of the cranium is protected by a thick, solid bone mass (occipital bone.) The front of the cranium also has good protection, however the bone in this area (frontal bone) is porous, “designed” to absorb impact. Blows to the front and back of the cranium may cause serious injury without directly fracturing these bones. The force of the blow may cause the cranium to move violently backwards or forwards. This may transfer the force of the blow to the upper spinal cord or to the brain tissue. Injury to the spinal cord may result in permanent paralysis to major parts of the body, depending on the level of the cord where damage occurs. Injury to the spinal cord at level of the 3rd cervical vertebrae or above may be fatal as it may cause complete paralysis of the muscles used for breathing.
If the brain tissue is injured, it does what any bruised soft tissue does: it swells. Swelling under the skin will cause an expansion or raised area called a hematoma. If the brain swells, however, it has nowhere to expand except into the one opening of the closed box. As discussed above, this opening is where the brain stem is located. Thus, the swelling will result in the brain stem being squeezed against the opening. That is a very bad thing; injury to the brain stem is often fatal. The brain stem regulates basic vital functions of the body, including respirations, temperature and the cardiac system. If these functions are stopped or interrupted for more than a few minutes, the body will die.
The sides of the cranium are rather thinly protected by the temporal bones. These bones are more easily fractured than those in the front and back. In addition, the blood supply for the brain runs under these bones, through the tissues (meninges) that cover the brain.
If the vessels in this area are damaged, the bleeding can cause compression of the brain similar to the swelling effect discussed above. Bleeding above the dural layer of the meninges (epidural bleeding) can result in death after only a short time after the injury is inflicted, measured in hours. Bleeding under the meninges (subdural bleeding) may also cause death, but the serious effects may not appear as quickly. Time prior to death may be measured in days. Prior to death, the injured person would experience altered levels of consciousness, slurred speech, blurred vision and other abnormal signs and symptoms.
The top of the cranium is not as well protected as the front and back, but it does not have the same degree of vasculature as the sides. Injury to the top of the cranium runs the same risk of brain tissue swelling as in other areas.
The Face
The face hangs as an appendage from the cranium, given form by irregular bones in the cheeks and jaws. Non fatal injuries from direct blows to the face include impairment or loss of sight and smell, broken teeth and disfigurement. Because the soft tissues of the face, including the skin, have excellent blood supply, open wounds in the face often bleed profusely. (Significant blood loss, even if not resulting in immediate death from hypovolemic shock, may cause permanent damage to internal organs such as the liver and kidneys that may ultimately result in a later death.)
The face is an obvious, perhaps instinctual, target for attack or retaliation. Blows to the face may easily cause a momentary loss of consciousness or imbalance that allows the other to escape or deliver additional attacks.
Fatal injuries to the face are rare but may occur if they compromise the airway or transfer sufficient energy to the brain or spine to cause neurological damage. Obstructions to the airway may happen in several ways. Blood from soft tissue injury may drain into the airway, as may parts of broken teeth. Obstruction of the airway may also result from aspiration of vomit and from the swelling of tissues in the throat. Opening the airway and keeping it open is the absolute first priority of emergency medical care. Without a patent airway, the injured person has no chance of surviving.
The bones of the face may be broken by strikes or kicks delivered in martial arts combat.
The bones protecting the eyes are quite strong and not easily broken. The jaw bones are less able to withstand blunt trauma. A low energy blow to the mandible (lower jaw bone), even if it does not break the bone, may transfer enough energy to damage the temporal-mandibular joint (TMJ) at the base of the jaw near the ear. If damaged, this joint may “click” each time the jaw is opened to speak or eat for the remainder of the person’s life. That could be a fairly high money damage item in court.
The Neck
The neck is a complex structure filled with things the body depends upon for life. These include the cervical spinal cord, the vessels supplying the brain with blood, the trachea providing the body with oxygen, the esophagus and numerous nerve bundles controlling many body functions. Any forceful blow aimed at the neck carries the potential for causing serious injury or death. A blow aimed at the front of the neck may cause a fracture, collapse or severe swelling of the trachea. Any of these effects may result in a fatal airway obstruction. A blow aimed at the side of the neck may damage veins or arteries, but will more likely cause damage to the nervous system that may be temporary or permanent. The cardiac system may also be adversely affected by nerve damage in the side of the neck. In a person who already suffers from cardiac insufficiency, the effect may be fatal.
The Shoulder Girdle
The shoulder girdle is generally well protected by strong bones and muscles and is not a prime target for attack by a martial artist, with one exception. The collar bone (clavicle) is a target, being the most frequently broken bone in the human body. This bone is a long, thin cylinder that forms a necessary frontal strut for the shoulder girdle. If this strut is broken, the entire upper extremity on that side becomes unusable. This bone is quite strong along its longitudinal axis, but is easily broken by torsion or by a transverse blow such as the hammer fist strike in the Peian Nidan Kata. Broken bones have extremely sharp edges, and most of the damage and danger from bone fracture is due to the destruction of soft tissue (vessels, nerves, muscles, connective tissue) by the broken edges following the fracture of the bone. The clavicle is placed over the top lobe of the lung, and a midshaft fracture of the clavicle may cause a broken end to puncture the lung. This may lead to air from the lung filling the pleural “space” outside the lung, causing the lung to collapse. This condition, called a pneumothorax, may be fatal. This is also true for blows to the chest.
The Chest
The chest, or thorax, is an area of the body with vital internal organs, including the lungs, heart, trachea and esophagus, protected by the ribs and sternum in the front. Technically, the thorax has the diaphragm as its lower boundary, so the ribs also protect some of the abdominal organs below.
Blows to the anterior chest wall may fracture the bones that protect the chest, the ribs and sternum. These bones are not particularly strong against direct blows. Such fractures are usually not fatal in themselves, however the problem of broken bone ends being pushed into internal organs, such as the lungs discussed above, also applies here. If three or more consecutive ribs are broken in two places, this creates a floating rib area known as a “flail chest.” Because this will impair breathing, it is a serious condition that could be fatal.
Blows to the chest may also seriously impair the proper functioning of the heart. A direct blow the surface of the chest over the heart may cause severe bruising and swelling of the heart muscle or bleeding into the sac enclosing the heart. These are potentially lethal injuries. The heart is an electrical pump. Even an indirect blow to the chest wall may interrupt or completely disrupt the heart’s electrical wiring, causing chaotic activity called ventricular fibrillation. If not quickly reversed, this will result in death.
The Abdomen
The abdomen is the area of the body below the diaphragm and above the pelvis, bounded in the back by tissues separating the intestines from the kidneys. The upper part of the abdomen is protected by the lower rib cage. The internal organs under the ribs include the spleen, gall bladder, pancreas and most of the liver and stomach. The lower abdomen is protected only by the abdominal muscles and a layer of fatty tissue.
Blows to the abdomen carry the risk of injury to the internal organs. All of them are susceptible to being bruised, “fractured” or lacerated by blunt trauma. Internal bleeding from an injured internal organ is nearly impossible to stop outside a hospital.and
may easily cause death from hypovolemic shock. Even without fatal bleeding, injury to internal organs may impair their function to such a degree that the person is in serious danger.
The Back
The back is protected by the shoulder girdle bones and thick muscles at the top and by the spine and ribs throughout. The primary dangers from blunt trauma to the back come from broken ribs puncturing the lungs and from damage to the kidneys. The latter, in particular, can become a fatal condition due to uncontrolled internal bleeding.
The Pelvis
The pelvis is well protected by a girdle of strong bones. If fractured, however, this girdle usually breaks in more than one location and can easily result in massive, fatal blood loss. A well delivered front kick to the pelvis may be capable of breaking the pelvis.
The Genitalia
All marital artists recognize the male genitalia as a target. Being exposed, they are clearly susceptible to blunt trauma. However, the female genitalia may also suffer damage and hemorrhage from trauma even though not as exposed. Blunt trauma to these areas in either gender is rarely fatal. The greatest danger of fatal injury here is due to the rich blood supply. Any avulsion (ripping and tearing away of the skin or organ) may cause serious bleeding.
The Extremities
The arms, hands, legs and feet make up the extremities. Trauma confined to these structures rarely results in death. (One exception would be bi-lateral femur fracture, an injury unlikely to result from martial arts combat.) The elbow and knee joints and the bone assemblies of the hands, wrists and feet are finely crafted and easily damaged. Nerves, particularly in the forearms, are close to the skin and easily bruised. Because humans depend on the proper functioning of these structures for gainful employment, recreation and virtually all other waking activities, the significant impairment of any of them can be a serious concern, even if temporary in duration. Martial artists learn a number of techniques to crush, twist, and break these structures. These techniques may be deemed lesser as not carrying a risk of death, but injuries caused by them may cause significant disability, loss of income, loss of enjoyment of live and expensive/protracted medical care. These techniques cannot be used indiscriminately.
Continuing Responsibilities
The moral and ethical responsibilities of a martial artist do not end with having successfully stopped an attack with the use of counter force. If the assailant has been injured and further attack is not expected, the martial artist has a further ethical and even legal responsibility to seek emergency medical assistance while rendering reasonable aid to the injured assailant. Aid that can be given to an injured person by another untrained in emergency care may include efforts to clear the airway, protecting the injured person from unnecessary movement and holding a dressing (improvised is fine) over an active bleeding site.
Perhaps the most important responsibility would be to call for emergency medical assistance as soon as it is safe to do so. Medical professionals refer to the Golden Hour following a serious injury in which the chances of recovery depend on getting the injured person to definitive medical care, which may often mean into the surgical suite. During that Golden Hour, the injured person’s internal compensatory systems are hard a work attempting to keep vital organs viable, however those systems may begin to fail with the passage of time.
Having causing injury to another, if the martial artist failed or refused to call for emergency response and to render reasonable immediate aid to that person, he could be charged with outrageous abandonment and held financially liable for it in addition to any damages caused by using force above the level of reasonable force.
Conclusion
The martial arts were developed in cultures that did not have a sophisticated legal system including a reasonable force doctrine, victim’s rights and civil litigation for damages. The ethic of the bushido code may have discouraged samari and other martial artists from the indiscriminate use of the deadly techniques they had perfected, but it did not impose the degree of legal oversight facing marital artists of today.
A martial artist forced to use his training in a real-like situation will, in almost all cases, be required to justify his actions in a legal setting. This setting may vary from a simple ordinance charge of disorderly conduct, to a criminal charge of assault and battery or even homicide, to a civil law suit seeking damages for intentional infliction of injury.
Martial artists are trained through many hours of self defense drills, one (or multiple) step drills, katas and sparing to use a huge collection of techniques: strikes, kicks, blocks, throws and sweeps, designed to make forcible contact with various part of the opponent’s body, to overpower him and defeat him. The choice of technique used in training is governed by: 1) the position of the martial artist’s body in relation to the opponent’s body (front, side, back), 2) the distance between them, and 3) the technique that would logically follow the prior technique just delivered or the block made of the opponent’s attack. In law, however, the “proper” technique is governed by one, utterly different standard: the reasonable force doctrine. The consequences of not choosing the correct technique in law can be catastrophic for the martial artist (and the opponent.) Every martial artist’s fantasy of finally using his training successfully in a real fight to protect himself or other innocents, should be followed by the very real nightmare of being told in a court of law that the techniques he so successfully used do not meet the reasonable force standard and he will either be punished as a criminal or held liable for the opponent’s damages.
To be martial artists in 21st Century America, we must face the reality of the standards imposed upon us by our society. We must train with knowledge and understanding of the consequences of our art. As instructors, we have an enormous responsibility to give this knowledge and understanding to our students.
Risk Management for Ski Patrol
RISK MANAGEMENT FOR SKI PATROL
Peter B. King, J.D.
INTRODUCTION
The purpose of this article is to outline the key elements of risk management as it applies to ski patrolling and address some of the questions raised by patrollers regarding risk management. The author is solely responsible for the content, and the opinions expressed are his alone. This article is not sanctioned by the National Ski Patrol nor by any area management.
Risks are an inescapable fact of everyday life, and we learn to manage our normal risks without thought. As patrollers we take on the additional activities and responsibilities associated with patrolling. We must consider how best to manage (not eliminate) the new risks in our own lives, the risks to fellow patrollers, to our home area and to its guests.
RISKS TO THE PATROLLER IN PATROLLING
By becoming a ski patroller, one voluntarily adds risks to what is already a somewhat risky activity. These added risks are both to the patroller’s physical well being and in law. Here are some of those risks:
Toboggan handling - requires special skill, the patroller is completely responsible for the safe
transport of the guest in the toboggan. Transport of the injured may be challenging at times –
don’t be afraid to ask someone bigger and stronger to do it if you don’t feel up to it.
Patient care – guests depend on patrollers to provide immediate care for those in need, to make
correct basic life support decisions and to perform emergency care according to OEC standards
at all times. Failure to meet those standards may result in liability for both the area and the
patrollers involved. Body substance exposure is an obvious risk in patient care that is managed
by proper BSI techniques.
Snowmobile use – this is one of the riskiest activities in patrolling. Many areas have banned the use
of snowmobile use by patrollers for routine transportation of guests and reserved their use for
true emergencies and at times when there is low guest traffic on the slopes at the discretion of
the slope leader. This is simply proactive risk management in action.
Out of area duties - patrollers are at times called upon to ski in places closed to the public for safety
reasons. The patroller assumes the risk of skiing in such places deemed too risky for the public,
but it goes with the job.
Weather and exposure - patrollers are at times required to ski and work outdoors when sane persons
with a choice stay inside. In doing so, patrollers accept the risks of exposure and cold related
injury to get the job done. Hopefully, patrollers understand and plan for these risks in ways that
minimize them,
Standards of skiing:- even when simply “cruising” the slopes in uniform, the law will hold a
patroller to a higher standard of care than the paying guest in looking out for and avoiding
collisions with other skiers. At times, a patroller may be asked to ski beyond his or her normal
“ability” such as when responding “STAT” to an emergency down the hill.
Avalanche control - patrollers in mountainous areas are often required to assume the dangers
associated with avalanche control, both in getting caught up in an avalanche and in handling
explosives used to control them.
Lift evacuation - some patrollers carry equipment for self-evacuation from lifts. It must be
stressed that this is not condoned by the National Ski Patrol, which provides no training for this
maneuver. Many areas do not allow self evacuation by their patrollers. Injury to a patroller
during self-evacuation not sanctioned by the area could raise problems with insurance or worker’s
compensation recovery.
MANAGEMENT OF RISKS
Management of risk starts with an understanding and acceptance of the fact that it is not possible to eliminate all risks in our lives and activities. We accept some risks voluntarily, others are thrust upon us
by circumstances largely beyond out control, but we manage all risks in with a combination of 3 strategies:
1. Understand risks: We assess known risks for their potential for causing harm, the extent we can avoid them if we chose to do so, and the extent we can structure our activities to minimize those we either cannot avoid or chose to accept.
2. Proactive management: We look for problems before they arrive, we plan ways to structure our
activities to minimize risks before they cause harm, we set up and practice procedures designed to
minimize the harmful effect of risks that cannot be avoided.
3. Allocating or “shifting” of risk. We employ strategies that will ensure that the burden of risk is properly placed on those who chose to assume them.
Many examples can be found in the work of patrolling for each of these 3 strategies, take a moment to think of as many as you can.
ALLOCATION OF RISK BETWEEN AREA AND GUEST
Everyone who goes up the winter hill is accepting a voluntary risk of injury or death beyond normal activity. After all, any would-be skier could simply chose to stay home and read a book rather than strap on skis (or a board) and slide down a slick slope. At a ski area, the legal responsibility for this added risk is on both the skier and the area.
In some states, Colorado for example, the allocation of risk responsibility has been codified into a statute that applies to all skiers whether they are familiar with this law or not. The statute gives ski areas standards for hazard identification and control; so long as these standards are met by an area, it cannot be held liable for injury caused by such hazards. The skier is deemed by law to have “assumed” the risk of such injury. In states such as Colorado, the area may assign to the ski patrol the duty of insuring such standards are met at all times and to document carefully the conditions that existed at the time of an injury.
Other states, such as Wisconsin, have no statutory allocation of risk in skiing. Areas in such states must rely upon following the reasonable practices of the ski industry for risk management. This is the “common law” of injury litigation. Parenthetically, the specific standards for such things as signs and obstruction padding found in the Colorado Ski Are Safety Act could be argued to constitute an “industry standard of care” given the history of the industry’s participation in the adoption and amends to the Act and the wide attention given it by the ski industry nationwide.
One “codification” of skier–area risk allocation can be found in the Skier Responsibility Code. This is a code of common sense and safe practices that has no formal force of law but can become a legally accepted standard if properly employed by an area and its patrollers. All patrollers should be able to state a reasonable explanation of all 7 parts of the Code from memory, if not word for word. After all, how can we expect the skiing public to know and follow the Code if we, as the professionals charged with responsibility for skiing safety, do not know it? The Code should be posted in many places visible to the public at each area. Do you know all places it is posted in whole or in part at your area? Every patroller must be familiar with the Code and make use of it to educate guests who do not follow it. Here are the 7 parts of the Code:
1. Stay in control
2. People ahead have the right of way
3. Stop in a safe place for you and others
4. When starting downhill or merging look uphill and yield
5. Use devices to help prevent runaway equipment
6. Observe signs and warnings and keep off closed trails
7. Know how to use the lifts safely
Release forms
Prior to issuing an area pass, each guest is supposed to sign a release instrument as part of the consideration paid and given for the privilege of area access and use. While this is an important legal document, it must be recognized that the guest’s signature, in itself, is not fool-proof insurance against litigation and liability if the guest is injured. In fact, in many lawsuit in which releases are presented as a defense they are rejected by the courts for a variety of reasons. Take a moment to read area release document and think about how they seeks to achieve a fair allocation of risk assumption.
ALLOCATION OF RESPONSIBILITIES BETWEEN THE AREA/RESORT AND NSP.
1. AREA/RESORT OPERATIONS
Area management, not NSP, is responsible for all aspects of the ski operation that involves patrol work other than training. This includes adopting policies and procedures for opening, closing lifts and runs, setting jumps and rails, snowmobile operation and accident investigation. Patrollers are agents of the local area, not NSP, when patrolling.
The area also determines patrol privileges and benefits and sets policies for patrol interaction with area guests and pass holders
2. NATIONAL SKI PATROL
NSP provides training and certification of successful completion – that’s pretty much all. In the 1970s, NSP was in danger of being dropped by many areas due to perceived conflicts with management in the control and operation of the ski patrol. This resulted in NSP narrowing its focus. It established training courses for OEC, toboggan handing and avalanche control and certifies completion. This standardized training allows members to transfer and provides a benefit to areas which do not need to set up their own training programs.
NSP no longer gets involved in setting operational policies for areas, but it does have certain risk management instructions for patrollers as found in NSP Policies and Procedures §3.3.10. These include:
A. Participation in incident investigation is under the direction, control and supervision of area
management and is not an NSP function.
B. Patrollers should never offer a specific diagnosis of a particular injury.
C. Patrollers should not offer an opinion as to the cause of any accident,
D. If involved in an accident with another skier, a patroller should neither accuse the skier of wrongdoing, nor accept blame for the accident.
LIABILITY
References have been made to legal liability risks and it may be useful to summarize the basic theory of negligence liability. Negligence is a “common law” term defined as an unreasonable act or omission by one with a duty of reasonable care, liability may result when the negligence directly or indirectly causes injury or damage to another. Law students take an entire course simply learning what that means. Let’s break it down a little with relation to patrol work.
Duty
Everyone has “duty” not to cause harm to others but specific duties may be assumed voluntarily, be imposed by law or by contract. When one becomes a patroller, one assumes a new duty to show up on scheduled duty times and to render aid to others according to patrol standards and training. The duty to provide emergency care continues until one is relieved by someone with equal or greater competence, the patient makes an informed refusal of further care, or the patient is declared dead.
Unreasonable act or omission
Generally, one’s actions and omissions are judged by what a reasonable person would have done or not
done in same circumstances. Falling below that standard is negligence. A ski patroller would be judged
by what an imaginary “reasonable” patroller would have done or not done given the same conditions.
Obviously, those conditions would include weather, patient unruliness, lack of support resources,
equipment break down and a host of other factors. Here is a question: how can a patroller show the
conditions that may explain what he did if issues are raised? The answer is obvious – document
everything.
The courts have modified the standard of reasonableness in certain types of cases where a higher
standard of conduct is imposed. In lift related accidents, for example, courts have imposed the duty for
the area operator to use “highest standard of care” as opposed to mere “reasonable” care.
Cause of injury or loss
Not all negligence results in liability. To do so, the unreasonable act or omission must be the foreseeable
cause of an injury or loss, and a judge or jury must be able to set a dollar value to it. Life is full of big
and little screw-ups, but lawsuits happen when someone is hurt or otherwise loses property or money as a
result. Cause to support a claim of negligence need not be a sole cause nor even a direct cause, it may
be enough to be merely a contributing cause. Attorneys refer to this as “proximate cause.” This may
support a claim of negligence if the damage is more like to result with that cause in effect than without it.
As may be expected, one of the best defenses to a negligence claim is that the injured person knowingly assumed the risk of his injury or otherwise contributed to it by his own unreasonable acts or omissions. How would a ski patroller or an area show a court that this was the case? Again, the answer is complete, accurate documentation. If both the injured person and the person accused of negligence are found to be at fault, the recovery if any may determined by a legal formula.
One area of negligence that might face a patroller is that the patient needed care and was “abandoned.” That would be a bad thing, but perhaps the care did not continue because the patient refused to allow it. After all, competent adults have right to refuse care, and a patroller has affirmative duty to gain the patient’s consent prior to rendering treatment or even touching the patient. This consent may be implied if the patient is a minor without a parent or guardian nearby and for those not mentally competent (due to head injury, medication use, etc.) to make an informed consent or refusal. Again, proper documentation is critical to these issues.
It was said by an instructor at a recent refresher that patrollers are usually involved in injury lawsuits as witnesses rather than as defendants, and that short of “stomping on someone’s head” a patroller would not be sued due to the Good Samaritan Law. The first part of that statement is correct, the second is not. The Good Samaritan Law is discussed below. Following are examples of other types of acts and omissions that may cause liability problems for patrollers – not complete list by any means
acting beyond scope of training or contrary to training, such as imitating what you saw a doctor or
paramedic do
failing to do what you have been taught with regard to (for example)
spinal immobilization,
care for bleeding and fractures
CPR
airway control
use of O2 when required
failure to do a proper body survey get a proper patient history resulting in delay in recognizing and
giving care for the problem
failure to maintain patient information as confidential
equipment failure caused by improper maintenance or use
unreasonable delay in response to the scene
accidents while using snowmobile or toboggan
failure or delay in summoning EMS assistance
failure to conduct a proper sweep
Trainers and supervisors have additional duties and responsibilities that bring additional risks.
Trainers must know and follow their lesson plan and ensure their students are competent when they finish the training program, however trainers are not expected to guarantee the continuing quality of work done by every former student.
Supervisors are responsible for insuring that the persons they supervise continue to act professionally and according to the recognized standards of the ski patrol. Supervisors are responsible for insuring that adequate numbers of patrollers are available for the assigned work and duty shifts and that the area is adequately covered at all times of operation. See the patrol by-laws for the specific duties of supervisors. .
Duty to supervise patient care: According to some patrol by-laws, the first patroller on the scene is responsible for the care of the patient and that remains so until the patient is released, handed over to EMS or to another patroller. Of course, the responsible patroller may hand the patient off to another patroller if he or she chooses to do so, but that does not happen simply as a result of a more experienced patroller arriving at the scene or presuming to take over the care and management of the patient. This is a rule sometimes violated in practice.
The best plan for personal risk management is to follow your training always, never exceed your limits, never cut corners, never unnecessarily improvise, and always strive to be the best patroller you can be.
GOOD SAMARITAN LAW
This is a law most rescuers know about, but it is often misunderstood. A “Good Samaritan” is a rescuer who acts without expectation of payment, and if the rescuer is negligent the law seeks to protect him from liability. It is the assumption of the such laws that because of them more people will go to the aid of others with reduced fear of liability for getting involved. (Whether or not that is true in reality is an interesting question.) State statues setting out this law vary but generally provide a defense to a negligence claim against the volunteer rescuer. Wisconsin has a specific version of this law that applies to “registered members” of the National Ski Patrol who patrol without monetary compensation. Here are some points to recognize about this law:
- It does not prevent a lawsuit against a patroller for negligence, it merely provides a possible defense to those patrollers who fall under its provisions..
- It does not protect a patroller who has not acted “in good faith” or who has acted in way that is reckless or wanton. It does not protect against intentional or grossly negligent misconduct.
- The ski patrol version of the law in Wisconsin is not limited to negligence in rescue emergency care (as are other versions of the law) but may cover other aspects of patrol work.
- The Wisconsin Supreme Court denied Good Samaritan protection to lay persons who had provided some emergency care but delayed calling for EMS to transport the injured person.
In sum, the Good Samaritan Law may be a useful tool once a patroller is named as a defendant in a negligence lawsuit. Constant adherence to high standards of patrolling is still the best defense.
INSURANCE ISSUES
NSP insurance covers training activities but not normal on the hill patrol operations or patient care.
Area insurance provides full liability coverage, including legal expenses and claimant compensation.
Worker’s compensation, when applicable, covers medical costs and loss of income arising from an “on the job” injury according to a disability schedule, but not “pain and suffering” or legal expenses. At the time this article was written (2007) the Wisconsin worker’s compensation act neither specifically covered nor excluded volunteer ski patrollers from coverage, although other EMS rescue volunteers are expressly covered. There is an unpublished appeal decision in Wisconsin (Nordic Ski Area v. LIRC) that did approve worker’s comp. benefits for a member of the National Ski Patrol for her injuries suffered while patrolling, but it is not precedent and the result may be different in other cases.
Personal insurance; personal liability insurance is probably not needed for ski patrol work where area management has liability fully covered, however personal health insurance is a must for all volunteer patrollers..
REPORTS AND RECORDS
As repeatedly stated above, documentation becomes critical as a risk management tool if legal questions arise about a particular event. The reports done at the time of the event will be the patrol’s memory. To know if the documentation you have prepared is adequate, ask yourself this question: Can someone (not merely the report’s writer) with no personal knowledge or memory of the event reasonably reconstruct the entire scenario of what happened from these records? If the answer is no, the documentation is inadequate.
Here are some brief rules regarding reports:
be accurate, complete, and factual; leave no blanks in the form.
avoid stating opinions, let the facts speak for themselves (see NSP instructions for patrollers
discussed above)
quote patient and witness statements with “---“, these are hearsay; don’t report what you were told
as facts you know from personal observation
report observations of patient injuries and conditions – don’t diagnose or speculate
the single page Incident Report is almost never adequate in itself for anything other than a walk-in
minor complaint.. Additional pages consisting of an area map showing the location of the
incident and other addenda are almost always called for. Patrollers must be familiar with all
forms available for addenda and use them whenever required by the circumstances. If there is
no form that fits the need to report the facts of the incident, make up an addendum from a
blank page. All reports must be carefully reviewed by a supervisor before the end of a shift
.
maintain strict confidentiality of all reports containing patient information on a need to know basis.
All requests for copies of the reports must be referred to management.
never never never attempt to slant a report to cover up a potential problem, let the facts speak for
themselves.
Accident scene investigation – above and beyond the routine Incident Report.
The first known version of a ski patrol CSI was developed by a ski patrolman and was initially a ski patrol, not a management, activity. It developed at the Keystone Ski Area in 1979-1980 and was written up in Ski Area Management magazine in a 1982 issue. It became a model used patrols by many other areas. A copy of that article is available upon request from the author. Currently, accident investigation is an area management activity at most areas. NSP does not provide any standards or training for it. Still, patrollers are an integral part of the investigation process. Patrollers, being first on the scene, need to identify those incidents requiring special investigation and documentation and notify management of them as soon as possible. These include:
patient suffered significant injury or death,
patient receiving O2 and/or spinal immobilization,
collision between skier and another skier resulting in any degree of patient care,
collision with any artifact resulting in any degree of patient care,
lift accident – no matter how trivial.
The first priorities remain securing the scene and rendering patient care, however patrollers not directly involved in these activities should without delay round up witnesses so they don’t disburse before they can be identified. Ask them if they will be willing to make written statements in the patrol room. If they are not willing, endeavor to obtain their names, addresses and telephone numbers and summarize any statements they make at the scene. The slope leader must alert management as soon as possible. Special report forms are available in the patrol office and all patrollers must be familiar with their use.
Management expectations
Management expects us to be proactive in risk management, to enforce lift safety strictly and report any dangerous conduct or conditions, to enforce the Skier Responsibility Code, to provide instruction to guests violating the Code, to document misconduct and to call the security department whenever a situation arises that we cannot handle.
To paraphrase Lord Nelson, management expects every patroller to do his duty.
Peter B. King, J.D.
INTRODUCTION
The purpose of this article is to outline the key elements of risk management as it applies to ski patrolling and address some of the questions raised by patrollers regarding risk management. The author is solely responsible for the content, and the opinions expressed are his alone. This article is not sanctioned by the National Ski Patrol nor by any area management.
Risks are an inescapable fact of everyday life, and we learn to manage our normal risks without thought. As patrollers we take on the additional activities and responsibilities associated with patrolling. We must consider how best to manage (not eliminate) the new risks in our own lives, the risks to fellow patrollers, to our home area and to its guests.
RISKS TO THE PATROLLER IN PATROLLING
By becoming a ski patroller, one voluntarily adds risks to what is already a somewhat risky activity. These added risks are both to the patroller’s physical well being and in law. Here are some of those risks:
Toboggan handling - requires special skill, the patroller is completely responsible for the safe
transport of the guest in the toboggan. Transport of the injured may be challenging at times –
don’t be afraid to ask someone bigger and stronger to do it if you don’t feel up to it.
Patient care – guests depend on patrollers to provide immediate care for those in need, to make
correct basic life support decisions and to perform emergency care according to OEC standards
at all times. Failure to meet those standards may result in liability for both the area and the
patrollers involved. Body substance exposure is an obvious risk in patient care that is managed
by proper BSI techniques.
Snowmobile use – this is one of the riskiest activities in patrolling. Many areas have banned the use
of snowmobile use by patrollers for routine transportation of guests and reserved their use for
true emergencies and at times when there is low guest traffic on the slopes at the discretion of
the slope leader. This is simply proactive risk management in action.
Out of area duties - patrollers are at times called upon to ski in places closed to the public for safety
reasons. The patroller assumes the risk of skiing in such places deemed too risky for the public,
but it goes with the job.
Weather and exposure - patrollers are at times required to ski and work outdoors when sane persons
with a choice stay inside. In doing so, patrollers accept the risks of exposure and cold related
injury to get the job done. Hopefully, patrollers understand and plan for these risks in ways that
minimize them,
Standards of skiing:- even when simply “cruising” the slopes in uniform, the law will hold a
patroller to a higher standard of care than the paying guest in looking out for and avoiding
collisions with other skiers. At times, a patroller may be asked to ski beyond his or her normal
“ability” such as when responding “STAT” to an emergency down the hill.
Avalanche control - patrollers in mountainous areas are often required to assume the dangers
associated with avalanche control, both in getting caught up in an avalanche and in handling
explosives used to control them.
Lift evacuation - some patrollers carry equipment for self-evacuation from lifts. It must be
stressed that this is not condoned by the National Ski Patrol, which provides no training for this
maneuver. Many areas do not allow self evacuation by their patrollers. Injury to a patroller
during self-evacuation not sanctioned by the area could raise problems with insurance or worker’s
compensation recovery.
MANAGEMENT OF RISKS
Management of risk starts with an understanding and acceptance of the fact that it is not possible to eliminate all risks in our lives and activities. We accept some risks voluntarily, others are thrust upon us
by circumstances largely beyond out control, but we manage all risks in with a combination of 3 strategies:
1. Understand risks: We assess known risks for their potential for causing harm, the extent we can avoid them if we chose to do so, and the extent we can structure our activities to minimize those we either cannot avoid or chose to accept.
2. Proactive management: We look for problems before they arrive, we plan ways to structure our
activities to minimize risks before they cause harm, we set up and practice procedures designed to
minimize the harmful effect of risks that cannot be avoided.
3. Allocating or “shifting” of risk. We employ strategies that will ensure that the burden of risk is properly placed on those who chose to assume them.
Many examples can be found in the work of patrolling for each of these 3 strategies, take a moment to think of as many as you can.
ALLOCATION OF RISK BETWEEN AREA AND GUEST
Everyone who goes up the winter hill is accepting a voluntary risk of injury or death beyond normal activity. After all, any would-be skier could simply chose to stay home and read a book rather than strap on skis (or a board) and slide down a slick slope. At a ski area, the legal responsibility for this added risk is on both the skier and the area.
In some states, Colorado for example, the allocation of risk responsibility has been codified into a statute that applies to all skiers whether they are familiar with this law or not. The statute gives ski areas standards for hazard identification and control; so long as these standards are met by an area, it cannot be held liable for injury caused by such hazards. The skier is deemed by law to have “assumed” the risk of such injury. In states such as Colorado, the area may assign to the ski patrol the duty of insuring such standards are met at all times and to document carefully the conditions that existed at the time of an injury.
Other states, such as Wisconsin, have no statutory allocation of risk in skiing. Areas in such states must rely upon following the reasonable practices of the ski industry for risk management. This is the “common law” of injury litigation. Parenthetically, the specific standards for such things as signs and obstruction padding found in the Colorado Ski Are Safety Act could be argued to constitute an “industry standard of care” given the history of the industry’s participation in the adoption and amends to the Act and the wide attention given it by the ski industry nationwide.
One “codification” of skier–area risk allocation can be found in the Skier Responsibility Code. This is a code of common sense and safe practices that has no formal force of law but can become a legally accepted standard if properly employed by an area and its patrollers. All patrollers should be able to state a reasonable explanation of all 7 parts of the Code from memory, if not word for word. After all, how can we expect the skiing public to know and follow the Code if we, as the professionals charged with responsibility for skiing safety, do not know it? The Code should be posted in many places visible to the public at each area. Do you know all places it is posted in whole or in part at your area? Every patroller must be familiar with the Code and make use of it to educate guests who do not follow it. Here are the 7 parts of the Code:
1. Stay in control
2. People ahead have the right of way
3. Stop in a safe place for you and others
4. When starting downhill or merging look uphill and yield
5. Use devices to help prevent runaway equipment
6. Observe signs and warnings and keep off closed trails
7. Know how to use the lifts safely
Release forms
Prior to issuing an area pass, each guest is supposed to sign a release instrument as part of the consideration paid and given for the privilege of area access and use. While this is an important legal document, it must be recognized that the guest’s signature, in itself, is not fool-proof insurance against litigation and liability if the guest is injured. In fact, in many lawsuit in which releases are presented as a defense they are rejected by the courts for a variety of reasons. Take a moment to read area release document and think about how they seeks to achieve a fair allocation of risk assumption.
ALLOCATION OF RESPONSIBILITIES BETWEEN THE AREA/RESORT AND NSP.
1. AREA/RESORT OPERATIONS
Area management, not NSP, is responsible for all aspects of the ski operation that involves patrol work other than training. This includes adopting policies and procedures for opening, closing lifts and runs, setting jumps and rails, snowmobile operation and accident investigation. Patrollers are agents of the local area, not NSP, when patrolling.
The area also determines patrol privileges and benefits and sets policies for patrol interaction with area guests and pass holders
2. NATIONAL SKI PATROL
NSP provides training and certification of successful completion – that’s pretty much all. In the 1970s, NSP was in danger of being dropped by many areas due to perceived conflicts with management in the control and operation of the ski patrol. This resulted in NSP narrowing its focus. It established training courses for OEC, toboggan handing and avalanche control and certifies completion. This standardized training allows members to transfer and provides a benefit to areas which do not need to set up their own training programs.
NSP no longer gets involved in setting operational policies for areas, but it does have certain risk management instructions for patrollers as found in NSP Policies and Procedures §3.3.10. These include:
A. Participation in incident investigation is under the direction, control and supervision of area
management and is not an NSP function.
B. Patrollers should never offer a specific diagnosis of a particular injury.
C. Patrollers should not offer an opinion as to the cause of any accident,
D. If involved in an accident with another skier, a patroller should neither accuse the skier of wrongdoing, nor accept blame for the accident.
LIABILITY
References have been made to legal liability risks and it may be useful to summarize the basic theory of negligence liability. Negligence is a “common law” term defined as an unreasonable act or omission by one with a duty of reasonable care, liability may result when the negligence directly or indirectly causes injury or damage to another. Law students take an entire course simply learning what that means. Let’s break it down a little with relation to patrol work.
Duty
Everyone has “duty” not to cause harm to others but specific duties may be assumed voluntarily, be imposed by law or by contract. When one becomes a patroller, one assumes a new duty to show up on scheduled duty times and to render aid to others according to patrol standards and training. The duty to provide emergency care continues until one is relieved by someone with equal or greater competence, the patient makes an informed refusal of further care, or the patient is declared dead.
Unreasonable act or omission
Generally, one’s actions and omissions are judged by what a reasonable person would have done or not
done in same circumstances. Falling below that standard is negligence. A ski patroller would be judged
by what an imaginary “reasonable” patroller would have done or not done given the same conditions.
Obviously, those conditions would include weather, patient unruliness, lack of support resources,
equipment break down and a host of other factors. Here is a question: how can a patroller show the
conditions that may explain what he did if issues are raised? The answer is obvious – document
everything.
The courts have modified the standard of reasonableness in certain types of cases where a higher
standard of conduct is imposed. In lift related accidents, for example, courts have imposed the duty for
the area operator to use “highest standard of care” as opposed to mere “reasonable” care.
Cause of injury or loss
Not all negligence results in liability. To do so, the unreasonable act or omission must be the foreseeable
cause of an injury or loss, and a judge or jury must be able to set a dollar value to it. Life is full of big
and little screw-ups, but lawsuits happen when someone is hurt or otherwise loses property or money as a
result. Cause to support a claim of negligence need not be a sole cause nor even a direct cause, it may
be enough to be merely a contributing cause. Attorneys refer to this as “proximate cause.” This may
support a claim of negligence if the damage is more like to result with that cause in effect than without it.
As may be expected, one of the best defenses to a negligence claim is that the injured person knowingly assumed the risk of his injury or otherwise contributed to it by his own unreasonable acts or omissions. How would a ski patroller or an area show a court that this was the case? Again, the answer is complete, accurate documentation. If both the injured person and the person accused of negligence are found to be at fault, the recovery if any may determined by a legal formula.
One area of negligence that might face a patroller is that the patient needed care and was “abandoned.” That would be a bad thing, but perhaps the care did not continue because the patient refused to allow it. After all, competent adults have right to refuse care, and a patroller has affirmative duty to gain the patient’s consent prior to rendering treatment or even touching the patient. This consent may be implied if the patient is a minor without a parent or guardian nearby and for those not mentally competent (due to head injury, medication use, etc.) to make an informed consent or refusal. Again, proper documentation is critical to these issues.
It was said by an instructor at a recent refresher that patrollers are usually involved in injury lawsuits as witnesses rather than as defendants, and that short of “stomping on someone’s head” a patroller would not be sued due to the Good Samaritan Law. The first part of that statement is correct, the second is not. The Good Samaritan Law is discussed below. Following are examples of other types of acts and omissions that may cause liability problems for patrollers – not complete list by any means
acting beyond scope of training or contrary to training, such as imitating what you saw a doctor or
paramedic do
failing to do what you have been taught with regard to (for example)
spinal immobilization,
care for bleeding and fractures
CPR
airway control
use of O2 when required
failure to do a proper body survey get a proper patient history resulting in delay in recognizing and
giving care for the problem
failure to maintain patient information as confidential
equipment failure caused by improper maintenance or use
unreasonable delay in response to the scene
accidents while using snowmobile or toboggan
failure or delay in summoning EMS assistance
failure to conduct a proper sweep
Trainers and supervisors have additional duties and responsibilities that bring additional risks.
Trainers must know and follow their lesson plan and ensure their students are competent when they finish the training program, however trainers are not expected to guarantee the continuing quality of work done by every former student.
Supervisors are responsible for insuring that the persons they supervise continue to act professionally and according to the recognized standards of the ski patrol. Supervisors are responsible for insuring that adequate numbers of patrollers are available for the assigned work and duty shifts and that the area is adequately covered at all times of operation. See the patrol by-laws for the specific duties of supervisors. .
Duty to supervise patient care: According to some patrol by-laws, the first patroller on the scene is responsible for the care of the patient and that remains so until the patient is released, handed over to EMS or to another patroller. Of course, the responsible patroller may hand the patient off to another patroller if he or she chooses to do so, but that does not happen simply as a result of a more experienced patroller arriving at the scene or presuming to take over the care and management of the patient. This is a rule sometimes violated in practice.
The best plan for personal risk management is to follow your training always, never exceed your limits, never cut corners, never unnecessarily improvise, and always strive to be the best patroller you can be.
GOOD SAMARITAN LAW
This is a law most rescuers know about, but it is often misunderstood. A “Good Samaritan” is a rescuer who acts without expectation of payment, and if the rescuer is negligent the law seeks to protect him from liability. It is the assumption of the such laws that because of them more people will go to the aid of others with reduced fear of liability for getting involved. (Whether or not that is true in reality is an interesting question.) State statues setting out this law vary but generally provide a defense to a negligence claim against the volunteer rescuer. Wisconsin has a specific version of this law that applies to “registered members” of the National Ski Patrol who patrol without monetary compensation. Here are some points to recognize about this law:
- It does not prevent a lawsuit against a patroller for negligence, it merely provides a possible defense to those patrollers who fall under its provisions..
- It does not protect a patroller who has not acted “in good faith” or who has acted in way that is reckless or wanton. It does not protect against intentional or grossly negligent misconduct.
- The ski patrol version of the law in Wisconsin is not limited to negligence in rescue emergency care (as are other versions of the law) but may cover other aspects of patrol work.
- The Wisconsin Supreme Court denied Good Samaritan protection to lay persons who had provided some emergency care but delayed calling for EMS to transport the injured person.
In sum, the Good Samaritan Law may be a useful tool once a patroller is named as a defendant in a negligence lawsuit. Constant adherence to high standards of patrolling is still the best defense.
INSURANCE ISSUES
NSP insurance covers training activities but not normal on the hill patrol operations or patient care.
Area insurance provides full liability coverage, including legal expenses and claimant compensation.
Worker’s compensation, when applicable, covers medical costs and loss of income arising from an “on the job” injury according to a disability schedule, but not “pain and suffering” or legal expenses. At the time this article was written (2007) the Wisconsin worker’s compensation act neither specifically covered nor excluded volunteer ski patrollers from coverage, although other EMS rescue volunteers are expressly covered. There is an unpublished appeal decision in Wisconsin (Nordic Ski Area v. LIRC) that did approve worker’s comp. benefits for a member of the National Ski Patrol for her injuries suffered while patrolling, but it is not precedent and the result may be different in other cases.
Personal insurance; personal liability insurance is probably not needed for ski patrol work where area management has liability fully covered, however personal health insurance is a must for all volunteer patrollers..
REPORTS AND RECORDS
As repeatedly stated above, documentation becomes critical as a risk management tool if legal questions arise about a particular event. The reports done at the time of the event will be the patrol’s memory. To know if the documentation you have prepared is adequate, ask yourself this question: Can someone (not merely the report’s writer) with no personal knowledge or memory of the event reasonably reconstruct the entire scenario of what happened from these records? If the answer is no, the documentation is inadequate.
Here are some brief rules regarding reports:
be accurate, complete, and factual; leave no blanks in the form.
avoid stating opinions, let the facts speak for themselves (see NSP instructions for patrollers
discussed above)
quote patient and witness statements with “---“, these are hearsay; don’t report what you were told
as facts you know from personal observation
report observations of patient injuries and conditions – don’t diagnose or speculate
the single page Incident Report is almost never adequate in itself for anything other than a walk-in
minor complaint.. Additional pages consisting of an area map showing the location of the
incident and other addenda are almost always called for. Patrollers must be familiar with all
forms available for addenda and use them whenever required by the circumstances. If there is
no form that fits the need to report the facts of the incident, make up an addendum from a
blank page. All reports must be carefully reviewed by a supervisor before the end of a shift
.
maintain strict confidentiality of all reports containing patient information on a need to know basis.
All requests for copies of the reports must be referred to management.
never never never attempt to slant a report to cover up a potential problem, let the facts speak for
themselves.
Accident scene investigation – above and beyond the routine Incident Report.
The first known version of a ski patrol CSI was developed by a ski patrolman and was initially a ski patrol, not a management, activity. It developed at the Keystone Ski Area in 1979-1980 and was written up in Ski Area Management magazine in a 1982 issue. It became a model used patrols by many other areas. A copy of that article is available upon request from the author. Currently, accident investigation is an area management activity at most areas. NSP does not provide any standards or training for it. Still, patrollers are an integral part of the investigation process. Patrollers, being first on the scene, need to identify those incidents requiring special investigation and documentation and notify management of them as soon as possible. These include:
patient suffered significant injury or death,
patient receiving O2 and/or spinal immobilization,
collision between skier and another skier resulting in any degree of patient care,
collision with any artifact resulting in any degree of patient care,
lift accident – no matter how trivial.
The first priorities remain securing the scene and rendering patient care, however patrollers not directly involved in these activities should without delay round up witnesses so they don’t disburse before they can be identified. Ask them if they will be willing to make written statements in the patrol room. If they are not willing, endeavor to obtain their names, addresses and telephone numbers and summarize any statements they make at the scene. The slope leader must alert management as soon as possible. Special report forms are available in the patrol office and all patrollers must be familiar with their use.
Management expectations
Management expects us to be proactive in risk management, to enforce lift safety strictly and report any dangerous conduct or conditions, to enforce the Skier Responsibility Code, to provide instruction to guests violating the Code, to document misconduct and to call the security department whenever a situation arises that we cannot handle.
To paraphrase Lord Nelson, management expects every patroller to do his duty.
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