A waiver form is not a bottom line defense against legal action. It is a front line obligation of companies and guides to inform the signers of the risks and physical demands of the activity; to perform to the best of our abilities; to minimize risk and avoid dangerous situations whenever possible.
All Trip Leaders with tenure have encountered a lawyer (or two or more) who declared that the document is not worth the paper that it’s printed on, or wanted or even did strike out certain passages (this nullifies the entire contract and cannot be accepted). In some cases this can be true. But, in a court of law it would first need to be proven that negligence or reckless endangerment was involved.
“Negligence” and “reckless endangerment” become very elastic words in the hands of a talented (or well paid) attorney. Insurance companies can and do decide if a case will go to court. Sometimes they are willing to settle out of court in order to avoid legal expenses, then make up their “loss” through higher fees. There are known instances where photos, post trip purchases, gratuities and well wishes to the guide, no record or complaint of injury and the waiver form were all set aside and a settlement was paid. This obviously hurt the outfitter financially.
What all this means is that we as guides are party to a contract. A clean line is more important than the big thrill. Everyone has had the crew who said, “we want the big ride,” or “we want to flip today.”
The A-route is the BIG ride, they don’t know the difference if you don’t tell them. Do they really want to be under the raft bouncing off the bottom of the river; hoping for air and flirting with entrapment? I don’t think so. Maybe a detailed description of the possibilities is all they need to change their mind. We have to struggle with the urge to satisfy our own ego not to go where no-one else goes, where the risk that your crew is not prepared to face lurks. Don’t go boldly where other boats are not going without informing the crew of the hazards that could be encountered; get everyone’s consent and make sure that other guides are prepared to assist in the event of an incident.
A waiver form is not a license to thrill. Be sure that you are always prepared to answer the hard questions, should it come to that. “Did you know that there was danger involved in the course that you chose?” “Were there other boats aware and prepared to assist?” “Does the company you work for condone your actions?”
Don’t read me wrong here. I’m not a “Kill-Joy”. I love to surf with my crew; to flip “intentionally”, when I know there is easy recovery below; do Rock-Spins and take lesser known routes. But, perhaps, the difference is that my crew is well informed and is offered the option not to do so. If one person should say no then it may be no by my decision, or if there is an available option to let that person out or put them in another raft so that the rest of the crew can have their “fun”, I choose that.
WALLACE is a flexible word. It is a noun; an adjective; a verb; and an adverb. As it is and shall be. WALLACE does not need to be conjured or controlled. In fact it should not be. Please be careful with your people, they want to trust you and respect you. As they should!
-Taz (the Pre-Schooler)
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