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.