[Tweeters] Negligence Waiver

Vicki Biltz vickibiltz at gmail.com
Mon Mar 4 23:32:48 PST 2019

Dear Daniel and Tweeterland,
I do humbly apologize for sounding harsh, not making excuses but I heard a
few horror stories over the years. And due to my love for guides, I as
with my children can be overly protective of their reputations and well
being. I’m glad you’ve had wonderful experiences Daniel and I sure hope it
keeps going that way.
But if you do get a bad egg, I hope you have protective measures. See,
we can research the guides we hire, it’s often impossible for guides to
research us.
Happy Birding

On Sun, Mar 3, 2019 at 1:28 PM Daniel R Froehlich <danielfroehlich at gmail.com>

> 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

> waivers-LoL!)


> 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 question.


> 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

>>> http://mailman11.u.washington.edu/mailman/listinfo/tweeters



>>> --




>> vickibiltz at gmail.com

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


>> --

vickibiltz at gmail.com
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