[Tweeters] Negligence Waiver
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
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
> 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*)
> <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.
> <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
>> 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
>> 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:
>>> 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
>>> 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
>> vickibiltz at gmail.com
vickibiltz at gmail.com
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