St. Louis, MO
Posted - 02/06/2011 : 1:54 PM
This err your way to better riding resulting in a crash your way to success may have liability implications for the instructor. Although I am no lawyer, Dr. Neil Doughtery is M$F's pet liability expert and what he has said in the past should be considered in light of what M$F's pet training expert, Dr. Daniel Petterson, says you are to do now.
Instructors are expected to do the impossible.
As I mentioned in an earlier entry, in the winter issue of "Safe Cycling", Dr. Petterson wrote, "Guidance should be "loose" unless the individual produces an error that could result in injury, but guidance should be such that fear of injury is nearly eliminated... Errors are to be expected and at some level the student must be allowed to make errors in order for learning to occur...minor errors should not be corrected in the early stages of learning" (p.2).
Petterson asks and M$F expects instructors to do the impossible. Catching minor or major errors depends on two things: opportunity and time. The instructor must see that potentially fatal error happening and have the time to stop it by coaching. And, of course, there's something else that makes it even worse.
The normal ratio of instructors to students on the range is 1 to 6/2 to 12. It is literally impossible for two people to keep 12 people equally under observation at a time even if the 12 only sit still on their motorcycles. Get some of them in motion and it's even worse.
Even if there were clear visual range management rules in a program, not all students will be equally observed due to ability: those who are struggling are bound to draw more attention than those who aren't. But there's no guarantee that the ones doing well won't err to the point of crashing. Instructors will focus on the students in motion and the ones doing the actual skill more than the ones riding back to the line or coming into the area that the instructor deems is "higher risk" or the critical area for the skill. Yet this is precisely the areas where crashes occur. Iow, the exact locations where crashes occur may be the least attended ones.
Iow, to see that injurious error happening, then, is as much luck as instructor skill.
Time to intervene:
In reality, then, even if the instructor was looking at that exact student at the exact right moment to see the student say pop the clutch there is not enough time for the instructor to do anything between error and result.
There simply is not enough time between error and result: it's only at the very last second that non-squared handlebars produce a crash. The time between popping the clutch and the run away is infinitesimal, etc. In that nanosecond, the instructor has to comprehend that the error is occurring, evaluate and decide what to do, and respond with the kind of direction that can prevent the crash. By the time the instructor has comprehended, evaluated and decided how to direct the student, the student and bike may be already on the ground.
Even if direction is given, panic shuts down the student's ability to even hear directions or, if heard, to respond correctly. This is well documented in a great number of fields.
And even if the instructor is close enough to intervene and could say, grab the handlebars and try to straighten the wheel or pry panic stricken fingers off of the throttle or squeeze the clutch it just creates another different dangerous situation. As the instructor in Valencia, CA found out just before his head hit the curb.
Iow, Petterson is nave if not irrational to think that errors leading to injury crashes could be corrected before the crash.
Minor errors lead to injury crashes as well.
Worse yet, M$F's position as expressed by Petterson, is ridiculous; only a fool would assume that minor errors can't end in injury accidents. Those stop 'n flops and step-aways are caused by "minor" errors and often and normally result in non injuries. However, they can and do result in anything from contusions to lacerations to dislocations or even broken bones and perhaps unconsciousness. In fact, most of the "minor" injuries on ranges result from "minor" crashes caused by "minor" errors.
Iow, instructors are asked to do the impossible: to be always and fully aware of what each student is doing at every moment, to determine if the error which is happening in a nanosecond is minor or major and to stop only the major ones before an injury occurs and do that within a nanosecond.
And this is strictly to support M$F's BRC philosophy that students learn better when they can err their way to success. To not coach minor errors, then, is to tacitly permit more crashing and more injuries.
Damned if you do, damned if you don't.
And yet, at the same time, they should realize that minor errors can end in injury but only correct those that will end injury and let the other minor errors go by or else be "bad" instructors who don't understand the principles of adult learning. Truly, it's a damned if you do correct the error and damned if you don't situation.
Meanwhile, M$F is protected from liability because of how they phrased it: you're to correct the errors that will lead to injuries. Therefore, if an injury occurs it's your fault for not correcting the error. You misjudged what kind of error was occurring.
So Murrae Haynes wholesale condemnation of instructors on the listserve recently expresses the natural consequence of Dr. Petterson's thoughts: It must have been your fault, darlings, that crashes occur and injuries result. And that fault would be a failure of coaching because you were supposed to correct errors that lead to injuries and not correct minor errors. Catch 22. And that, it seems to me, has very serious liability implications:
What is a minor error as opposed to a major error?
Dr. Petterson does not define what a minor error is. So what exactly does M$F say a minor error (that shouldn't be coached) is as opposed to a major one (that should be)? They don't. You're supposed to know. How do you know?
Does your state define major and minor errors? Is it written down or just something you "know"? Would someone like Haynes agree? Or more to the point would the other instructor on the range with you agree? And would your training specialist and state administrator agree?
Because if the worst case scenario happens and you end up on the wrong side of a lawsuit, it's your co-instructor and state staff that will have to defend you and the plaintiff's attorney will be looking for people like Petterson and Haynes who have publicly stated that it's the instructor's fault if a crash and injury occurs.
Without clear definitions to bring into court, how will you justify that it was a "minor" as opposed to "major" error when others might have a different list, a different set of criteria? And when M$F says that errors that lead to injuries should be corrected?
What M$F's pet liability expert has to say.
So, this might be a good time to remind all of you what M$F's liability expert, Dr. Neil Doughtery, has said in the past and more recently about liability.
In "Trends in Education: The Professionally Standardized Instructional System a valuable tool in the reduction of program and instructor liability" ("Safe Cycling", Winter, 1988), Doughtery writes that one study found 37% of the litigants alleged faulty supervision or instruction as the primary source of negligence. Another one found inadequate supervision or instruction was alleged in 47% of the cases.
How easy will it be for the state or the instructor to prove the supervision was adequate when 2 are assigned to watch 12all of which may be in motion at the time of the crash? And here's where the higher ratio of crashes per student is important: that more crashing is occurring and grows year by year becomes relevant as it shows a pattern of insufficient supervision, if not instruction and/or coaching. And your own records the incident reports you have filed will be part of the case: how many incidents have occurred while you were teaching?
Doughtery goes on to write, "The prudent person principle says, in effect, that the standard of care against which an instructor's actions will be measured in the event of a lawsuit is the expected actions of a reasonably prudent individual under the same or similar circumstances." This principle is measured by the "expressed opinions of recognized experts in the field, the written standards and directives of the appropriate professional organizations or both... Following that standard precludes most arguments regarding the appropriateness or quality of the instruction program in the event of an accident and subsequent lawsuit."
Written standards and directives for example, written standards and directives for what is the difference between a minor and major error, how many falls should be allowed, and so forth. Does your state have them? Would recognized experts defend the choices you made? Say someone like Murrae "It's all the RiderCoaches' fault" Haynes or Dr. "correct the errors that lead to injuries" Petterson to the stand, would they? To whom can you appeal to support your understanding of a minor or major error given the results the injuries (or death)? Who will be in your corner when no written standards exist?
I'm no lawyer but I suggest you consult one: That sort of "oh, I know it when I see it" thing may be very hard to defend in court. And I'm not sure the court and a jury will appreciate the distinction between a minor and major error if a major injury results. It seems to me that all the plaintiff's attorney would need to do is show how those minor errors regularly lead to injury accidents iow, you should've known that minor errors can and do lead to major injuries and a prudent person would've taken that into account.
Iow, Petterson's advice and clearly M$F approves of it since it's in "Safe Cycling"may increase your liability as an instructor. Whether it does or not, though, it's still impossible to do.
Liability: Instructors will take the fall for the falls.
Doughtery went on to write, "When a student is injured in an instructional program, the question is frequently asked, "Was he/she physically, mentally and emotionally prepared to undertake the activity?" He writes that "careful assessment procedures" are great for support the decision to allow the student to participate. "A standardized instructional system with validated procedures for the assessment of student readiness and achievement can provide the strongest possible professional justification for decisions regarding the inclusion or exclusion of a student."
I'm thinking of the Georgia instructors who complained that students lied about their physical condition or that serious mental distress (for example) wasn't evident until poor performance endangered the student. However, it's impossible for the office to determine the student's fitness beforehand (short of requiring a doctor's signed clean bill of health along with the registration form). The assessment then is put on the instructor but without clear guidelines of how to determine prior to the actual range exercises whether the student could participate fully.
From a presentation in 1997 at the SMSA conference, Doughtery said that the "likeliness of their ability to succeed at this activity" would be very important in determining negligence. Iow, instructors who are not qualified medical personnel are put in a position where they must make qualified medical decisions knowing that there is a chance that the student will crash during the course. Once again, it seems that M$F is asking the impossible if not the unethical or illegal.
It will all be relevant then.
In the 1988 article, Doughtery also wrote that everything that the student did or didn't do, the extent of participation, and so forth will come out in court the number of falls will be relevant and the jury, at least, will be interested in how many falls the student had previously and will be wondering if a prudent person would really allow someone to crash more than once and really wonder if anyone in their right mind would allow a student to crash more than twice let alone three or four times.
Iow, your attorney might be in the position of selling adult learning principles as safe motorcycle training to a jury of non-riders. If Haynes is correct and many instructors don't get it after teaching it for five year show easily will the judge and jury grasp the notion when they think motorcycles crash too much anyhow?
Iow, when instructors try to follow M$F's dictates and do the impossible, it may very well open them up to increased liability they really may be damned if they do and damned if they don't.
The very fact that M$F has developed a new incident form for the Pennsylvania program, then, should scare the crap out of instructors because it asks how many falls the student has had and at what point in the exercise and if the student was meeting the objective.
But that's PA's form, not your state. However, that the question is asked on any form would alert a smart attorney to ask those questions of you in whatever state you are in. How many falls and how you prove they were meeting the objective, if the lawyer is any good, will become an issue.
It won't be M$F's Dr. Petterson and his "don't coach minor errors" direction, nor Ray Ochs and his adult learning nor M$F at all that will be held accountable for the results of following their direction. It will be you. In the paraphrased words of Bob Dylan,
Your answer, my friend, could set you blowin' in the wind,
The answer is you twistin' in the wind.
Without clear objectives and the BRC doesn't have any specific criteria without clear evaluative standards and without clear criteria on how many falls are too many fall show exactly are you going to defend yourself? Iow, this crash your way to success approach may or may not yield safe, competent riders but it may be impossible to defend yourself because you cannot do the impossible and correct only errors that could lead to injuries while not correcting errors that should be allowed.
Lack of specific directions may increase liability.
The lack of clear, specific, detailed instructions on the range cards may increase your liability. According to several BRC instructors as well as state administrators, the directions on how to do an exercise cannot be read verbatim to the students and yet new instructors do just that, in some states. More experienced instructors and some new ones go beyond what's written. And everyone agrees that for students to understand what they are to do, instructors must add to them or change the wording.
Making the verbiage your own matches the BRC's instructor flexibility. However, it removes any evidence that you did give the correct and accurate and complete instructions to students. There is no proof as to how the instructor directed the students to do the exercise and no proof that the instructor included all essential components. If there's a lawsuit, the instructor would have to depend on the other instructor and other students verifying his account. But how well will students remember exactly what you said? Then again, the sound byte philosophy may make some of your words very memorable. Are you sure they will be the right ones?
Otoh, Team Oregon's BRT range cards has clear, specific, carefully worded language that cannot be deviated from. While this may seem rigid to some, it protects the instructor from any claims of inadequate instruction and reflects such issues back to the curriculum developer who can defend it by their research and development process and decades of rider training experience as well as appealing to extensive records of class performances and so forth.
Otoh, M$F gains protection from the flexible "you say it your way" curriculum and all potential liability is placed on the instructor.
So who is looking out for the instructor Team Oregon's BRT which was developed by rider instructors for rider instructors or the manufacturers' M$F?
What will the other students as well as the plaintiff remember about what you said if a bad injury crash has occurred shortly thereafter? Will it be accurate? Are you sure that you say the same thing every time, that you include everything that must be said when there's so little guidance from the range cards? And this leads into the next point:
Lack of coaching may increase liability.
In that 1997 presentation at the SMSA conference, Doughtery spoke about feedback, "That's the way you told them to do it...[they say to themselves] that's what I'm about to do. If they don't fall off the bike, that must be how it was done...you have to do a skill 50-100 or more times correctly before you know if you're doing it wrong. That means we have to give them feedback because otherwise all we're doing is letting them get away with doing it wrong and them thinking they're doing it right."
Doughtery back then says that feedback coaching is essential. Yet, that's exactly what M$F says should be minimized and minor errors left uncorrected.
Once again, Team Oregon's BRT does not permit early errors to go uncorrected. While there is some degree of adult learning principles and students do some self-discovery learning once the basic skills are taught and students have proven themselves competent enough, even then errors can be and should be corrected that can lead to a crash not just an injury crash. Iow, once again, the BRT looks out for the instructor as well as the student's positive learning experience. One would think those that developed it actually had taught students and had faced the possibility they one day could be sued.
M$F's BRC, as we know, takes the exact opposite approach (which proves that the curriculums aren't identical, incidentally). However, Doughtery goes on to say if there isn't sufficient coaching of those errors, "We are, in essence, teaching them the wrong skills and perpetuating that. So you have to be careful."
M$F would deny that is so students learn better if they figure it out for themselves. That they have no proof of this hasn't mattered to the rider education community. It may matter a great deal to a jury. But then M$F won't be in the position of having to defend you, will they? In fact, Petterson's words alone will damn you because it was obviously a failure to give the right coaching.
Assumption of risk.
Instructors have to be careful, Doughtery goes on to say, because, "No one assumes any risk of which they are unaware quote the courts." And this has happened: the liability waiver did not hold up in the Colorado court death and the case is still proceeding, last I heard. While the ignorant on the msf listserve may blame the half shell helmet, clearly the court doesn't see it so simplistically. And you, as the instructor who will take the fall, should be aware of that. Iow, it could be that a student who was not aware that a minor error could lead to an injury fall or what major errors are may not have assumed the risks entailed and can sue even if they don't win.
The death in Valley Forge, back in 1998, is still under litigation even though the riding community sees that as a freak accident. And so is the case in WV, the last I heard. So while some who have vested interests on the msf listserve may dismiss the deaths and near fatals, there are many cases still working their way through the courts. Iow, if the worst does happen, you should expect it will consume many years of your life and may consume a lot of your money and certainly will affect your ability to continue teaching. You could be assuming, unwittingly, risks you were not aware of. So be aware and find out.
The BRC removes protections previously in place.
These following questions will help protect the program and instructor, he said:
"Are there clear policies for screening for students or a clear policy when to let them advance?" Uh, Neil, that would be a no. There used to be but no longer.
"Are there activity specific safety guidelines specific to that activity?" You mean how many falls or what kind of falls are allowed before the student is pulled out for remedial training or counseled out? That would be a negative. There used to be, but no longer.
Iow, it appears that the BRC removes previous protection from the instructor (and state program). Since M$F hired Doughtery when the BRC came out and he changed his opinion to some degree to support the BRC's approach, I would strongly suggest that state programs seek legal advice to see which advice Doughtery gave is most applicable in your state.
Catch-22 on the range.
Back to the pre-BRC advice: Doughtery went on to say having written policies and curriculum proves you were following procedures. But the procedure according to M$F is to not coach the minor errors but only those that could result in an injury crash. That an injury crash occurs then proves you weren't following written procedures. Catch-22.
The double speak, however, leads to the result M$F wants: the students are free to self-discover, yet M$F is not liable if the student crashes because the instructor should've known better.
So, unless your state has those written policies that spell out what the curriculum is silent about how would you be able to prove you were doing the right thing? And I would suggest that instructors expect no help from the M$F:
M$F's new liability form.
M$F has sent out a new liability form it insists all program providers adopt. It should also scare the crap out of instructors. While such things as death, complete paralysis, and so forth are capped and bolded not once but twice in the form but M$F puts all the responsibility sole and entire on the program providers and instructors for what happens.
In addition, M$F's latest program RERP has already excluded M$F from any accountability or liability even for M$F's own negligence.
Bottom line: M$F can then demand the impossible to achieve the goal of student self-discovery and yet take none of the consequences when that will inevitably end in injury crashes. It's like that children's game: Duck, duck, grey duck. And you're the goose and won't be able to catch M$F. M$F, otoh, protects the geese that lay the golden eggs the manufacturers.
Myths about instructor liability.
In the .ppt presentation that accompanied Doughtery's SMSA presentation and in the talk, Doughtery discusses several myths rider educators have about liability:
MYTH: Avoiding written policies and procedures is a good idea because they can be used against the instructor in court.
Doughtery: In fact, they help the instructor.
MYTH: If the student's injury was caused at least in part by his/her own negligence the instructor wont be found liable.
Doughtery: Not true it may mitigate liability but will not excuse it.
MYTH: First Aid/CPR certification is enough to protect the instructor from liability or allegations of improper emergency care.
Doughtery: Not true.
MYTH: Don't discuss the risks opening as it will make them afraid and make them think of suing if they are injured.
Doughtery: Not true students can't accept risks they aren't aware of.
MYTH: Winging it or being flexible with program delivery components is all right.
Doughtery: No, it increases your liability.
As long as the program isn't unsafe or unreasonably dangerous.
From "Risk Management Q & A with Dr. Neil Dougherty" (Fall, '02 Safe Cycling): "You're fine as long as the new program is not unsafe or unreasonably dangerous."
Uh, would possible head injury, possible life threatening injury, death be considered unreasonably dangerous? As we've seen, while msf listserve members may dismiss the causes of those deaths (without knowing the facts), the courts haven't.
Even though Doughtery appears to support the flexible coaching approach of the BRC, instructors are placed squarely in the hot seat for doing what M$F requires:
When asked about drifting from the curriculum, how much was acceptable, Doughtery answered, "the issue is that if that RiderCoach were ever pushed, could he or she give a good reason for the variance?...The standard is reasonableness. Just because there are two different ways of doing things doesn't mean they're wrong, as long as both are reasonable...the curriculum itself justifies these kinds of differences."
So now imagine Murrae Haynes or Dr. Petterson called by the plaintiff's for expert testimony. Are you still thrilled with the BRC's instructor flexibility?
Iow, without written, clear and specific policies, without established and written guidelines on student health/preparedness, without clear, specific objectives as to when a student should advance or how many falls should be allowed or what it means that the student is progressing, and with the changes in the incident form in PA at least and the liability form, instructors may be taking on a far greater risk of liability than they may have assumed they were.
The question then is can instructors' take on risks they aren't aware of? And, we remember, an instructor's death has been caused by student error. Maybe that's why the PA instructors had to sign a liability waiver as well before they could attend the Update?
M$F believes the deaths and near-fatal injuries will continue to happen.
There have been at least 8 deaths and near-fatals from 2002-2006 in rider training involving at least 8 different states. There are rumors of other deaths and near-fatals. There is every reason to believe more deaths will occur since nothing has changed to prevent them. There is absolutely no reason to believe it can't happen on your range.
The incident form has changed. The RERP has changed. The liability waiver has changed. All put the onus on the instructor. Iow, at the very time that lawsuits are piling up, M$F is removing your protection as a state program and instructor.
I'm thinking you may want to do something about that.
More troubling in terms of instructor liability would seem to me to be the one policy that does exist: that the standard is to allow them to stay in until that error that could be injurious. That an injury (or death) occurs is a de-facto admission that you failed to correct the error by failing in effective general supervision not noticing that it was occurring or making an erroneous judgment as to the seriousness of the error. Iow, it appears to me that leaves you twisting in the wind.
As instructors, you may want to start thinking about ways thatas a group you can protect yourselves.
You may want to start reconsidering whether you really want to let that student get to the point they self select out. Is it really in their best interest? Because it sure as hell might not be in yours.
Perhaps your state program should get someone from your DOJ to come and address these issues?
Or you could just keep drinking the M$F Kool Aid.
Yes, 'n' how many times can a man turn his head,
Pretending he just doesn't see?
The answer, my friend, is blowin' in the wind,
The answer is you twistin in the wind.