A Lawyer’s Perspective on Incident Response

Originally published in the Avalanche Review, February 2019

Outdoor professionals tend to be very adept at managing risk in the outdoors, and there is an ever-increasing focus on technical training for on-the-ground risk mitigation, wilderness medical training, and rescue training. However, there tends to be much less focus on the fundamentally human aspects of how we respond to a serious incident in the backcountry. The human response to a serious accident or fatality is a major factor in whether a lawsuit occurs, and how effectively the lawsuit can be defended. It also has a major impact on the reputations of both the organization and the involved professionals.  Understanding and training on this human response is a critical component of professionalism for guides.

This article is designed to give an overview of those on-scene incident response considerations that are most often overlooked by outdoor professionals.

1.  Competence 

When a person or their loved one is involved in a serious incident, your apparent level of competence in managing the response to the incident is critical to how they will feel about the outcome.  The best way to appear competent is to be competent.  It is difficult to display a level of professionalism during a stressful incident if you have not trained with your co-workers on how an incident is managed.  Your incident response plan should contain an “incident command” structure that is appropriate to the size of your company.  Disciplined deference to that structure is an important baseline standard of incident response. Also important, however, is a recognition that a dynamic environment requires flexibility in your response to an incident.  Perhaps the individual with the highest level of medical training is needed for a technical rescue?  Perhaps your lead guide was involved in the incident and is physically or mentally compromised?  In such cases, having the flexibility to adjust the command structure is important.  In order to develop the skills and communication required for your team to function efficiently and effectively when the inevitable occurs, scenario-based training is necessary. Managing an incident in a professional manner is like all skill-sets in the outdoors – it takes practice.

2.  Managing Human Emotion

An obvious, but often overlooked consideration in incident response is the recognition that human emotions can and should impact the manner in which you conduct yourself as a professional.   Whether dealing with a person who has suffered a serious injury, or with a person who has witnessed an injury or fatality (perhaps of their loved one or a close friend), having a fundamental awareness of how they are responding emotionally is a necessity.   It is easy to get caught up in dealing with the nuts and bolts of managing all other aspects of an incident, and overlooking the emotional trauma of the involved person or their companions.  You ignore this emotional response at your peril.

It is fundamental to being human that we show empathy and kindness to someone who has suffered a life-altering loss.  It is also natural and expected to express sorrow to a person who has suffered a loss.  As professionals, you should not suspend your natural response to show kindness and empathy to someone in that situation, and to express  sorrow. It is a false assumption that if an outdoor professional says “sorry” in the event of an incident resulting in death or injury, they have admitted liability.  There is a fundamental difference between expressing your sorrow that something devastating occurred, and admitting fault for the occurrence.  As outdoor professionals, you know that bad things can happen in the backcountry as a result of inherent risk.  That is a risk that all participants in an outdoor activity must accept. However, that reality does not change the fact that you can still feel genuine empathy and sorrow that an incident occurred, and it is entirely appropriate, and perhaps necessary, to express that emotion.

A related consideration is developing an understanding of the strengths and weaknesses of those with whom you work.  Some individuals are better caretakers than others.  Some individuals are more experienced and disciplined in their communications than others. Some individuals are better equipped to withstand their own emotional reaction to a traumatic incident than others.  Analyzing and discussing your team’s individual strengths and weaknesses is an important aspect to ensuring an emotionally-appropriate response to a serious incident.

Like all skills necessary to being a true outdoor professional, an emotionally competent response to an emergency takes practice.  Scenario based-training is important, and is particularly critical for younger professionals who may have less experience dealing with human loss.

3.  Scene Management and Investigation

The third area where critical errors in incident management are most often made is in a failure to control the scene of an incident, and to competently gather facts and information that form the basis for a thorough investigation.  Many outdoor incidents occur not due to the negligence of professionals, but as a result of an inherent risk of recreating in a dynamic environment.  Documenting exactly what happened can illuminate that distinction, and may dissuade injured people and their families from filing a lawsuit.  In the worst-case scenario of a lawsuit, an effective and thorough investigation can provide a lawyer the tools to mount an effective defense against claims of negligence.

In an age where cell-phone and other bystander-gathered videos often provide the dominant narrative for what occurred and how the incident was handled, control of the scene is important.  Cell-phone or “Go-Pro” videos are generally incomplete, and tend to show a scene that appears more chaotic than it is. Oftentimes, individuals who are filming a scene should or could be assisting in managing the incident. It is appropriate to ask them to stop filming and help, or to stop filming out of respect for the involved person or their family.  Redirecting their energy to assisting with a task is appropriate, if done respectfully and calmly.

When an incident occurs, effort should be made to gather a witness statement and/or any photographs or videos from bystanders or group members, and each professional who was involved in the incident or response.   Witnesses and professionals should be instructed that the purpose of a witness statement is simply to set forth their observation of objective facts.  A witness statement should never contain subjective guesses as to facts, should never contain speculation, and should never contain opinion.   It is the job of the person who conducts the investigation of the incident to stitch together each witness statement, photographs, weather and snowpack data, and any other relevant factual data to put together a narrative of the incident – the story of what happened.  Therefore, witnesses do not need to speculate or guess at facts in order to create a complete narrative.  Understanding this can help witnesses provide a helpful and complete statement, and avoid writing down inadvertently damaging or incorrect information or opinions.

In Summary

These three areas of incident response are the areas where many outdoor professionals have the most room for improvement toward the ultimate goal of professional competence in all relevant disciplines.  Competence in incident management is a necessary skill for outdoor professionals, particularly in an age of ever-increasing litigation resulting from recreational injuries. 

Disclaimer: This blog post is not intended to provide legal advice, nor should it be viewed as such. Legal advice can only be provided based on specific facts. We recommend, as we must, that you consult an attorney before implementing any advice in this blog post. Receiving or viewing this blog post does not constitute an attorney-client relationship.

Share This

How Can We Help?

Peace of mind is within reach. Reach out today for a no-cost conversation about how the Recreation Law Group can support your business or organization.