[Tweeters] Negligence Waiver

Daniel R Froehlich danielfroehlich at gmail.com
Sun Mar 3 13:28:39 PST 2019

Thanks, Vicki, for your lively engagement on this topic, clearly heartfelt!

In reading Vicki's response, I'm getting these main ideas:
1. The half of birders that are "very bad" need to be restrained to prevent
them from damaging sensitive habitats and birds.
2. Guides are a significant bulwark of habitat and bird protection against
the risks posed by those very bad birders.
3. Guides need protection from spurious, time-sucking and costly legal
challenges that lack basis.

As an experienced guide of over 60 trips and field programs, domestic and
international, subject to all kinds of weather interference, closures,
accidents and, yes, even an occasional appalling client, I've had the
incredible good fortune of not being subject to any suits so
far--knock-on-wood. And that is without resorting to aggressive negligence
waivers! (Clearly, I didn't enjoy the ad hominem insinuation that only
inexperienced guides would fail to embrace aggressive negligence

I like breaking things down into component elements. With my experience as
a guide, I often see a different risk than Vicki's post addresses. Sadly,
just as there are "very bad" birders, there are guides that don't live up
to the standards that Vicki's post charitably attributes to guides in
general. Those who have been blessed with only good guides have also had
incredibly good fortune!

>From Wikipedia*:*

*Negligence* (Lat. *negligentia*)[1]
<https://en.wikipedia.org/wiki/Negligence#cite_note-1> is a failure to
exercise appropriate and or ethical ruled care expected to be exercised
amongst specified circumstances.[2]
<https://en.wikipedia.org/wiki/Negligence#cite_note-2> ...The core concept
of negligence is that people should exercise reasonable care in their
actions, by taking account of the potential harm that they might
foreseeably cause to other people or property.

For me, demanding clients forgo holding an operator accountable for such a
real possibility simply raises suspicions about the operator's judgment:
about their safety, about their ability to set realistic expectations in
their marketing, about their customer satisfaction, even about their
conservation scruples.

I guess I am not understanding how one of the risks I think Vicki's post is
addressing, that of unscrupulous suits that cost operators, are managed
effectively by aggressive negligence waivers, perhaps through intimidation
or deterrence? Both Vicki and I agree, I think, that people experiencing
real harm due to negligence still achieve judicial traction regardless of
waivers. So the group of suits Vicki and I may be disagreeing about are
those brought *without* a legitimate claim of negligence. I just don't
believe that those clients that fail to recognize the frivolousness of
their claims, say in the examples Vicki's post offers, would be at all
deterred by an aggressive negligence waiver. My experience with
overly litigious-minded
clients is that they are somewhat prone to being impervious to reason or
influence... I realize that the backdrop for negligence litigation is the
national-level, often highly-partisan and rarified discussion of tort
reform; that's well beyond the scope of tweeters or this particular

Apart from the merits and demerits of tort reform, my experience in the
past few years suggests that the more aggressive and harsh the litigious
restriction of rights among tourist service liability waivers, the
shallower the level of perceived infraction needed to trigger
legal-recourse thinking among clients. I'd be interested in analyses that
actually compare rates of frivolous suits against companies using
aggressive waivers vs those deploying concerted expectation management, and
especially how that has developed over the past few decades.

Vicki's post sensibly suggests considering the context of such waivers.
That's true. In examples like the ones given, in which single operators
have a monopoly on access due to area sensitivity, once-in-a-lifetime
visitors might express their frustration of missing a viewing (due to
weather, conservation necessity, acts of god) through a frivolous suit.
Such operators may get more than their fair share of suits like that and
any deterrence effect would be helpful. Still, wouldn't demanding
indemnification from eventualities out of the operator's control rather
than from their *negligence * make more sense--much more legally precise
and understandable both to a disappointed client and to a judge?

What I really don't think I get is how aggressive negligence waivers better
protect sensitive habitats and rare species. Direct regulation of access,
guide development, visitor management and public outreach, the way it
happens to a greater or lesser extent in such areas all over the world and
the approaches I'm involved with, are more effective than the
imperfectly-known possibility of deterring frivolous lawsuits against those
guides that are scrupulous. Spending limited funds on enforcement against
both very bad birders and, yes, less-than-perfect guide outfits along with
public outreach rather than on expensive legal consultation for overly
aggressive waivers would be my preference. (Or maybe the problem was the
cheapness and low quality of the legal consultation that resulted in that
absurdly aggressive liability indemnification in the first place...?)

Actually, I heartily agree with all the points I summarized from Vicki's
post--guides *do* an important service to protect sensitive nature from
visiting hordes and *should* be protected from frivolous lawsuits, though I
might quibble about the exact proportion of very bad birders! And to me
*aggressive* negligence waivers simply haven't demonstrated
their effectiveness in achieving those goals.

Dan Froehlich
Poulsbo, WA
Go eBird <https://ebird.org/profile/MzAyNDkz>ing!

On Sun, Mar 3, 2019 at 6:48 AM Vicki Biltz <vickibiltz at gmail.com> wrote:

> I couldn’t disagree with you more. Experienced guides know that a client

> could try to sue you because a terrible storm came up the days you were

> scheduled to spend time at the Strait of Gibraltar. There is always legal

> recourse if there is a truly negligent case that caused you harm. The guide

> being looked at is a one day trip to see rare Hawaiian birds in a very

> delicate habitat, and integrity of the birder should be at its very best.

> We had several guides to special locations both inCosta Rica, who were part

> of the preservation caretakers, and only they can take you certain places.

> They are there to protect the wildlife from us. Which should be required

> due to so many birders breaking rules and not following the birding ethics

> rules.

> Same for Israel, they are part of the parks and preservation program,

> they require the same.

> I would think a birder should look at the whys of this waiver. We just

> ran across unhappy birders in a group who were unable to bird the Strait,

> due to terrible storms preventing the migration to move forward at that

> time. The guides are doing what is best for their birds and that should

> take presidents over our desires.

> There are many birders of integrity in the world, but just as many are

> very bad.

> These guides do have insurance and they do take injuries and neglect

> seriously, and they do take care of you, but I’ve heard many stories over

> the years if birders whose demands were not met, even if it was

> unavoidable, and try to sue the guide for just that.

> I’ll leave this topic now, as I’ve said my peace, as politely as I can.


> I hope all professional guides are smart enough to have this waiver

> Vicki Biltz

> Currently on train from Seville to Madrid, where my plane awaits.

> Happy Birding,

> Vicki Biltz

> Buckley, WA

> PO Box 7241 Bonney Lake, WA 98391


> On Sat, Mar 2, 2019 at 9:43 PM Daniel R Froehlich <

> danielfroehlich at gmail.com> wrote:


>> Hi,

>> I'm a tour guide and run into waivers like that at some private

>> campgrounds and other service providers.


>> I think that waivers that demand indemnification against NEGLIGENCE are

>> appalling and a disgusting ploy devised by some self-important, twisted

>> lawyers reveling in the sense of power they get from generating Orwellian

>> drivel.


>> They can't be legally binding--if not, liability insurance would not be a

>> viable business. Any judges out there disagree?


>> Their purpose is to intimidate clients who turn into victims.


>> I take them as a clear sign of terrible judgment on the part of the

>> service provider. I always take my business elsewhere if possible, telling

>> them their waiver leaves the safety of their services in grave doubt.


>> But I'm interested in hearing if any birding lawyers defend the

>> practice. Anyone?


>> Dan Froehlich

>> Poulsbo, WA

>> Go eBird <https://ebird.org/profile/MzAyNDkz>ing!

>> _______________________________________________

>> Tweeters mailing list

>> Tweeters at u.washington.edu

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> --




> vickibiltz at gmail.com

> http://www.flickr.com/photos/saw-whets_new/



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