In the spirit of personal challenge and growth, many teens embark on wilderness training programs. If disaster strikes, such as a wild animal attack, how liable is a wilderness training company? Does signing up for a wilderness adventure mean that the school itself should be absolved of any liability in the event of severe injuries?
In late July, a group of teens participating in a National Outdoor Leadership School (NOLS) survival skills course were attacked by a bear while hiking in the Alaskan wilderness. Two suffered life-threatening injuries while two others sustained serious but non-life-threatening injuries. The teens, all between the ages of 16 and 18, had no instructors with them, and were in the last days of their month long course. The youths involved were from around the country, including one young man from the Denver area.
Within a day of the incident, the NOLS blog posted a statement regarding risk management at NOLS, specifically about how they strive to refine and improve their curriculum, field practices and risk management protocols. NOLS went on to say that the “incident will continue to be reviewed to inform that broader process going forward”.
Questions are now being raised as to whether or not better protection should have been available to the hikers. Some have even suggested they should have been carrying firearms. The hikers were carrying bear spray and calling out to warn the bears of their presence, a common protocol. Despite all the training and preparation the teens were supposed to have received as a part of the course, were they actually skilled enough to go into the wilderness on their own? Was the school somehow negligent by providing inadequate training of insufficient equipment? One survivor of the attack said, “The first aid kit ran out in about 10 seconds. We started using our clothes to bandage the wounds, so after about 10 minutes, I lost most of my clothes because I was trying to cover the bleeding with it.” In short, was this group properly prepared?
Wyoming-based NOLS has a good reputation for outdoor skills training. since its inception in 1965, NOLS has had only eleven students die, most recently in 1999. According to the Associated Press, in an average year, out of 3000 NOLS students about 200 are injured, mostly sprains and injuries treated in the field by instructors. In their 40 years of operating in Alaska, the company claims to have never had a bear attack happen to their groups in Alaska. While there has apparently never been a successful personal injury lawsuit against NOLS, one lawsuit is pending.
The NOLS Risk Management statement sets forth that their highest goals are to prevent fatalities, injuries and illnesses. Wilderness travel in bear country is inherently risky. No matter how many systems an organization employs, and no matter how stringently those systems are enforced, incidents can happen. No one can reduce risk to zero. Many outdoor educators argue that without some risk there is no reward and it diminishes valuable teaching opportunities such as judgement, consequences and risk management. Some argue that trying to plan for every possible low probability risk can actually increase other risks. For example, bringing excessive specialized equipment can slow down the group when trying to avoid a storm and increases the liklihood of back strain, sprains and blisters. All of these risks are much more likely.
The NOLS application includes an “Acknowledgement and Assumption of Inherent and Other Risks” and “Agreements of Release and Indemnity”. Many people who participate on such programs are looking for an adventure, and are looking to push themselves to their physical limits. What if there is gross negligence on the part of an instructor that unreasonably puts at risk program participants? How much can you sign away in a waiver? Can this be balanced with the right of people to go out and seek adventure? The law is a constantly evolving creature, and the courts are constantly trying to maintain a balance of protecting individuals while still allowing personal freedoms. It will be interesting to see if anything arises in the courts as a result of this recent bear attack.
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