Lawyers and Insurance and Bears, Oh My!

[Beavah]

It seems pretty evident that some poor trainin' is happening across the country with respect to liability and insurance. I know how it happens, eh? A trainer gets asked "Why?" by somebody, and not knowin' the real answer, he tosses out the "fear" answer - Lawyers and Liability! "Fear" answers are good ways to get people to comply, eh? Just ask any modern politician.

 

Problem is, there's not a thing in any BSA training syllabus about liability or insurance, beyond a brief blurb in COR training. Makin' up a "fear" answer may be convenient, but it isn't honest. And it's not doin' the training right, either. For those of us who try to convince CO's to sponsor units and good adults to volunteer, spreadin' a lot of liability fear does real damage. It hurts the BSA program and ultimately the kids.

 

So, an ounce of prevention bein' worth a pound of fear, here's some information for those of you who want to know (with some allowances for state/council differences, of course).

 

1. On unit outings, the leaders and the CO are responsible, as it should be. The BSA is not.

2. Generally speaking, with caveats for minor differences in state law, if your CO is not a NFP entity, or future developments in case law, you as a volunteer in a NFP service organization have statutory immunity from liability.

3. The BSA acts as primary insurer for registered adult leaders and for CO's. That insurance is structured as a self-insured portion, covered by a broad general liability policy, covered again by high-limits insurance through major vendors.

4. There are no G2SS provisions in the BSA's insurance coverage. Failure to follow G2SS, either as a matter of poor judgment or a matter of ignorance, DOES NOT compromise coverage or somehow magically make you (more) liable. Nor does forgetting to file a tour permit or any other "policy" violation. Insurance is there for when you screw up. However, a few things (skydiving...) may be on the insurance exclusion list for the outside insurance above the BSA's self-insured amount. O' course, any perceived "violation" might make some gents here at scouting.com yell at you .

5. The BSA has a very well-deserved reputation of always sticking by its volunteers and chartered partners. They work hard to maintain that reputation, because that's important to attracting CO's and volunteers.

6. Contrary to popular belief, most attorneys and most judges are honorable, decent people who do a difficult job. 99% of the court findings out there are thoughtful and intelligent.

 

So, as a BSA volunteer who is trying to do your best for the kids, you absolutely should not fear legal issues. You should use your brain, and do what makes sense. G2SS is educational material, to help you. It is not a club which others can use to hurt you.

 

For a unit that chooses to run an outing as a CO rather than a BSA outing, no problems there, either. Just be honest and up-front in your communication (written & oral) with the families and the CO. Most of the CO's have their own general liability coverage. CO's that run other youth programs, especially big CO's like major churches, usually have coverage that exceeds that of the BSA. Now this (and anything else we do) shouldn' be cavalier, o' course. It should be thoughtful and reasonable.

 

And there's nothin' wrong with families who are in a unit choosing to run a private trip, either. You should be no more fearful of this than you are of having your son's birthday party at your house. You are not immune from liability in such cases, but your homeowners/renters (or auto) insurance would be in play. In the case of goin' to a movie theater or paintball establishment, it's the service provider (and its insurer) that is liable. I'd even be so bold to suggest it really isn't necessary to get signed permission slips and permission-to-treat documents to let your son's best friend play in your back yard, but your call .

 

Yah, we really don't want our society to become so afraid of da legal boogeyman that our children can't have friends, eh?

 

Yah, yah, before Scarecrow starts singin' "Lions and Tigers and Bears, Oh My!", no, I am not saying "anyone can do anything they want." I am saying that as scouting volunteers who care about kids, you should not fear to exercise common sense, ordinary judgment in the application of G2SS or any other "rule." Includin' things like continuing a good-weather campout when your Baloo leader has to leave for an emergency, but you've got great alternate adult coverage.

 

Beavah

 

CAVEAT LECTOR: The above text is for general informational purposes only. It does not constitute a formal legal opinion on any matter of law or insurance coverage. For reliable advise on a particular circumstance, consult your own attorney, eh? They're good people.

[Eamonn]

I agree whole heartedly about these myths and scare tactics.

We (Old grey beards and trainers) do a big disservice when we present things that just aren't true.

I'm all for the G2SS and youth protection, both go a long way to protect the kids we serve and the people who do the serving. I have met some Scouter's who seem to want to make everything into a youth protection whatever and seem to just go way over the top.

I'm willing to accept the responsibility for what we do. It seems for the past week or so I have been harping on about "Controlled Risk".

The G2SS is a good tool when it comes to assessing what risk is allowed. Age appropriate activity lists are also very good.

There are times when the Scouts may want to do things where I in my infinite wisdom deem the risk is more than I'm willing to take.

The reasons for this can be just common sense, my knowledge of the G2SS or just my level of risk.

We I hope will never need a rule book so big that it becomes unmanageable. I'm OK with the list of activities that the BSA doesn't allow.

What I might want to do either as an individual or as a family has nothing to do with the Ship, our CO or the BSA.

If OJ and his pals want to go sky diving that's up to him, his pals, their parents and me as his parent.

I do feel that I'm happier when everyone knows what is and what isn't a Ship's activity.

Many Parents have no idea of what the G2SS or what rules are in place.

We have some kids in the Ship that are the son's of Her Who Must Be Obeyed friends, some even call me Uncle Eamonn! I have known these kids since before they were born, as families we have shared holiday meals and gone on vacation together. As Uncle Eamonn I'm fine with one of them stopping by the house to do something and I never give the G2SS or YP a thought. But as Skipper Eamonn, I push the buddy system and follow the rules.

Kinda like when I was in HS we were only allowed to use an ink fountain pen (I never worked that one out!!) But when I was at home and not doing school work I could use what ever I liked.

I have never been paint-balling and have no desire to go. A few of the Scouts have all the gear and do get together to go paint-balling.

I'm happy that they are happy.

But I'm not going to promote it or allow the Ship to get involved.

I have my own little lists of things that I think are just too risky and if asked I'll tell the truth. The truth being that I'm unwilling to allow the kids in my charge to take that risk or maybe I'm unwilling to allow an individual or a group of Scouts to take that risk.

Sure at times this might seem unfair or look like I'm playing favorites! But when it comes to the safety and welfare of Scouts in my charge. I really am the be all and end all.

I don't need to back up my decisions with lies or falsehoods or talk about insurance coverage. I'm fine with accepting responsibility and being the leader.

I do try and do my best to follow the guidelines and rules, I try to keep up to date with them. But I try just as hard to find out why they are in place so I can explain them to others and not go out of my way to bash people over the head with them or sound like some rule-spouting know it all.

Ea.

[GernBlansten]

I had a real wakeup call about 15 years ago concerning liability, lawyers and insurance. This was BC(before children). I was Commodore of our local yacht club. NFP organization with membership in US Sailing for liability insurance. Similar relationship of a CO to BSA. US Sailing gave us guidelines to run sailboat races and training, but coverage was not a condition of following those rules.

 

Well, we were out having our weekly evening race with about 30 boats. A clear air microburst formed on one end of the lake and started moving toward the fleet. Knocking the boats over like bowling pins. Wind was estimated at over 70 knots sustained. Those of us at the far end had enough time to drop our sails but still got knocked over. The burst lasted about 30 minutes while we just tried to keep the boats floating and off the rocks. After the storm, we returned to the marina to find out one of our boats had lost her crew and two souls were missing. A search and rescue was initiated. They were found the next morning by a recovery team.

 

Needless to say, we immediately contacted US Sailing about the accident. They assigned a lawyer who interviewed each of us officers. Most questions pertained to whether we followed US Sailing recommendations on running races. I asked the lawyer why? He responded that those guidelines are designed to convince a judge/jury that due diligence was followed. It won't keep someone from suing, but its easier to convince a judge/jury if you are following some set of rules.

About 3 months later, the family of the lost sailors sued our club, the park service and US Sailing. Once the family realized our club had no assets and our NFP status absolved us officers from liability, they dropped us from the suit. US Sailing was able to have the case dismissed, primarily because we had followed their guidelines. Not sure how the park service faired. They really had no role in the accident.

[LongHaul]

In an incident locally a boy died on a ski outing. The lawyers representing the SM asked for copies of the YP videos used in training leaders as well as copies of the SM specific training materials. They wanted tour permits and permission forms. As GB says it's to use to convince a judge and jury. Criminal and civil liabilities have different levels of proof necessary to make a case. From the cases I'm familiar with degree of liability is decided by the jury. If one was totally not liable under the law how could a case get past discovery and preliminary levels? As for National backing leaders get accused of a YP violation and see how fast National stops taking your calls. Be Prepared takes on a whole new meaning when law suits are filed.

LongHaul(This message has been edited by LongHaul)

[Beavah]

Be Prepared takes on a whole new meaning when law suits are filed.

 

Any time there is a dispute between people, things aren't pleasant, eh? It doesn't really matter where the dispute plays out. Every scouter knows that dealin' with an upset parent on a troop committee is a time consuming and frustratin' bit of work. So is dealin' with a pain-in-da-kiester neighbor. No difference with litigation. Like any dispute, it's a bit time consuming and frustratin'. Sometimes documentation can help your insurer, and it's good to help 'em out, eh? Sometimes, documentation can hurt a small bit, too, which is my problem with havin' too many well-intended G2SS rules like "no diving or swimming activity of any kind is done in water with a depth greater than 12 feet."

 

In reality, they only help or hurt a bit, and it's your insurer that they help or hurt, not you. There is no reason why anyone, as a reasonably conscientious Scouting volunteer, should have any fear of legal issues.

 

As for National backing leaders get accused of a YP violation and see how fast National stops taking your calls.

 

Yah, well. If you commit an intentional criminal act, then your criminal defense is on your own dime. As it should be.

 

Da BSA is honest, too, when it says that safety helps the program. Not just in terms of reputation, but because of the self-insured portion of coverage (and cost of the higher levels of coverage), being safe reduces the amount of money we collectively spend on sharing the risks of the program. We should be safe because we care about kids, and because we want to be good citizens.

 

But not because of fear.

[LongHaul]

As for National backing leaders get accused of a YP violation and see how fast National stops taking your calls. Yah, well. If you commit an intentional criminal act, then your criminal defense is on your own dime. As it should be.

      I said accused and you have the person committing the offense and being guilty as charged. Unfortunately National takes the same view. " If he wasn't guilty the kid would never have made the accusation." Just how many actual cases where litigation was enacted are you personally familiar with? In reality, they only help or hurt a bit, and it's your insurer that they help or hurt, not you. There is no reason why anyone, as a reasonably conscientious Scouting volunteer, should have any fear of legal issues. You as the plaintiff dont get to decide what reasonably conscientious means the judge and jury gets that right. Having followed ALL the rules and regulations helps your lawyer make that case. Again if Im not liable why am I named in the suit and why do I need a lawyer?

LongHaul

[Lisabob]

Sorry Beav but I really disagree with you. I am not "fear mongering" as you suggest. But I personally know of a couple cases where these sorts of issues were involved. In one, a boy tripped, fell into a campfire, and was burned. Thankfully he was not seriously injured in any long-term way but there were medical costs. The first think all parties (with lawyers) were looking at was, did the troop follow G2SS and other rules regarding fire safety. As it happened, the troop in question had and the insurance covered the boy's costs. Had they not, who knows? But there's at least a higher chance that they would have found themselves facing a nasty court battle.

 

We all know that BSA training, by itself, is not enough to run a perfect (or perfectly safe) program, but it is my expectation as both a parent and a leader that the BSA collectively has more experience with most program-related activities than I do (or you do, or any other one person does) personally, and that policies were written with a view to that base of experience. The activities we engage in often come with a certain element of risk and we have to make good decisions about when that risk has become too great. If we err in judgment or accidents occur AND we were doing things that BSA policy clearly says not to do or we weren't doing things that it explicitly says to do, then that's asking for more trouble. It just seems common sense to me - not fear mongering, thank you - that we should use and support BSA policy and guidelines as our rule of thumb more often than not. I don't understand why you so continually disagree, as though your judgment were always, necessarily superior. I just don't get where you're coming from. We all want the same thing - kids having fun on safe outings. I understand a frustration with bureaucracy and the BSA has a fair amount of that, but the relativism you propose in its stead doesn't make sense to me, I'm sorry.

 

[Eamonn]

I can't talk for Beavah. I'll leave it to Beavah

to talk for himself.

Some of the myths that I dislike are:

The "You have to travel in uniform."

"The fixed blade knife"

Some things I would maybe like to see made a little clearer have to do with liquid fuels.

I'll admit that I don't follow the "Safe swim defense plan" to the letter.

There have been times when a group on a canoeing trip will go for a quick swim and while I do follow most of the rules I don't follow all of them.(Mainly marking off the area.)

A year or two back, I posted that a Scout got left behind at camp and I had to make the choice of leaving him there or giving him a ride home, with just him and myself in the car. I opted to take him home. Some forum members thought I should be tossed out on my ear. Some thought I'd done the right thing and a good friend reminded me to stress that what I'd done was foolish.

Who is to say that in ten or fifteen years the Lad isn't going to appear on Dr Phil and say he was abused by the Scoutmaster?

Back when we had the restaurants, I spent a fortune on Liquor Liability Insurance (At that time over $20,000 a year) Working with the insurance companies we worked on lessening my liability, we trained all of our bar staff, we had rules for the bar staff (Mainly to do with them not drinking while on duty.) And the insurance company took into account our history, the fact that we never had a claim and never had an violations with the PLCB.

Liability has become a fact of life.

There was an article in US News and World Report about a family that had a swing set in their back yard. The family wasn't home and a neighbors kid came and while playing on the swing set fell off. The injury left the little girl with a permanent limp. The family sued, the lawyers went after the family, saying that the swing set should have been fenced in. They went after the swing set manufacturer and Sears who sold the swing set.

There is a difference between liability and negligence.

Taking Scouts on the water might make me liable.

Taking Scouts on the water who have not taken and passed the BSA Swim test would make me negligent.

I know that some will argue about how deep the water is or isn't.

We don't allow Scouts on deck without a PFD, we make sure that every Scout has a well fitting PFD that is in good repair. Still every now and then a Scout will come up from below without their PFD on. Of course when anyone sees they immediately tell the offender and tell him or her to put one on.

I see a world of difference between that and if we had ignored the PFD rule and not had any. That would be negligent.

I know we have been talking about winter camping a lot over the past few weeks.

But thinking back to the 2005 Jamboree, when the problem wasn't the cold it was the heat.

While I don't know what was going on behind the scenes, I got the feeling that there was a big difference of opinion between the DOD and the BSA. I don't know if liability and fear of being sued came into play or not?

I do pay attention to weather reports and small boat warnings. To not do so I feel would be negligent. We do train our Scouts what to do in cases when things don't go right or well. I'm happy if we never ever have to put the training to use!! Just because we know how to deal with a situation doesn't mean we have to go out looking for it!

Ea.

 

[dan]

Lets say a troop is going on a trip, it is snowing so we decide to caravan because we have not been to the area we are heading into, so no one gets lost, something bad happens on the way, lets say a few of the vehicles run into each other and scouts where hurt. Are you saying that the BSA lawyers are going to back me, even though the unit signed a permit that said they cannot caravan?

[Beavah]

Are you saying that the BSA lawyers are going to back me, even though the unit signed a permit that said they cannot caravan?

 

Yes.

 

(in the way that you sorta mean the question. For vehicular accidents, your personal auto insurance is primary, so it would be your insurer that "backs" you. Neither they nor the courts would care a fig about G2SS. It'd be the quality of your driving at issue )(This message has been edited by Beavah)

[dan]

So you are saying that the parents of the scouts that where in the vehicle could not sue the BSA only my insurance provider?

[Eamonn]

"So you are saying that the parents of the scouts that where in the vehicle could not sue the BSA only my insurance provider? "

 

While I'm not an attorney, have never played one on TV. I did play Matthew Harrison Brady, in a play once.

I suppose anyone can sue anyone for anything.

A parent could sue you, your CO, the car maker and the department of transportation for the state that you are in.

But to do so they have to prove that you were doing something wrong.

Doing something wrong when you are driving is not governed by the BSA.

You should be following the laws of the state that you are in.

The Pledge of Performance found on the back of Local Tour or Camp permits does make sense,and every attempt should be made to not have drivers closely follow the group vehicle in front of them.

This works well on the highway, but many of our camps are located way back in the country so one car following the other is going to happen.

You however are still the driver of the car and you need to drive with the care that the state law demands. Drive at a safe speed and not go banging into the car ahead of you!!

Form #34426E (The Tour permit) informs us that we need to be covered by a Public and property liability insurance policy.

What this is saying is that the BSA is not your primary insurer.

A lawyer might try and argue that you were not following the guidelines laid out by the BSA, but these guidelines have no real standing outside of the BSA.

So the answer to your question is -Yes.

If however you didn't have insurance. A case could be made against the tour leader and the Unit Committee member for not checking to see if all the drivers were insured. In this case the BSA would I would hope come to bat for the Tour Leader and the Committee member.

Ea.

 

[Beavah]

So you are saying that the parents of the scouts that where in the vehicle could not sue the BSA only my insurance provider?

 

Well, like Eamonn says, anybody can sue anybody over anything. That's a feature of our society, eh? We believe that it's important that anyone who has a dispute should have recourse to the courts. Even if they're dumb, and a lot of disputes are pretty dumb when yeh get down to it. But havin' people in court is better than having 'em "take the matter into their own hands." Open access to the courts is a price we pay for a civil society.

 

In answer to your question, both the BSA and your insurance carrier would routinely be dismissed from the suit. The complaint would be against you, for your driving. Da cute little Geico Gecko (or whoever...) would defend you and pay any settlement or judgment. If the Gecko ran out of money, the BSA as secondary insurer would pay the balance. Both are acting on your behalf, but are not themselves parties to the suit.

 

In such a suit, the standards of judgment for your driving would be those of the broader world (assured clear distance, etc.), not da stuff in G2SS like no caravaning or driving at night. If your driving was fine even though you were caravaning, then there would be no negligence and the court should find in your favor. If you were at fault in the accident, then there would be negligence and da Gecko would have to pay. The insurer would do its best to collect all the facts of the case, just as Lisa'bob describes, so that the dispute can be resolved fairly and quickly, preferably without actually goin' to trial.

 

So even if yeh were tired, distracted, and didn't maintain proper distance, your insurance is still goin' to cover you, eh? That's what it's for.

 

No need to fear drivin' the Little League or Scouting carpool from your neighborhood. 'cept for the mud on the floor, of course

 

Beavah

[Lisabob]

Beavah, let me ask you a question: Are you a practicing lawyer?

 

I am not casting doubt on your response to dan (or anything else, for that matter). I am just curious.

 

[scoutldr]

Lawyer disclaimer...I'm not one.

 

Your insurance company will probably settle out of court, if they can...whether you're in the wrong or not. It's a lot cheaper than litigation, and IMHO, that's a significant flaw in our system of jurisprudence.

 

Oh, and then your insurance company will drop your butt like a hot potato. Just ask those in the southeastern coastal hurricane zones whose homeowners insurance got canceled this year.