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
Vicki
On Sun, Mar 3, 2019 at 1:28 PM Daniel R Froehlich <
danielfroehlich at gmail.com>
wrote:
>
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
http://www.flickr.com/photos/saw-whets_new/
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