What The Mother Of A Two Year Old Can Teach Us About Avoiding Litigation

Yesterday, a Pennsylvania television station ran a story about Isabella Prescott, a 2-year old little girl with Downs Syndrome that was not permitted to ride the "Road Rally" ride at Dorney Park's Planet Snoopy.  According to the story, the ride attendant informed Isabella's mother that Isabella could not ride because she was "an infant" and because she couldn't walk (an assessment Isabella's mother, and the television reporter, dispute).  Isabella's mother believes that Dorney Park discriminated against her daughter and, according to the story, she plans to pursue legal action against the park.

But it wasn't the potential discrimination or the intention to pursue legal action that caught my eye.  It was this:

"Prescott said she is taking legal action against the park, but said she really just wants an apology."

I don't know if she really means it, but this request for a simple apology underscores the often discounted importance of guest service in preventing costly litigation.



One of the things I have seen time and again in my practice is the snowball effect that turns an initial poorly handled small-ish issue into a contentious and expensive litigation.  These types of lawsuits, which can end up costing a defendant tens, even hundreds, of thousands of dollars to defend can sometimes be avoided by a simple well-intentioned apology up front.  An apology can diffuse a bad situation.  It shows the guest that, even if you don't agree with her assessment of the situation, that you acknowledge her feelings and want to do something to help alleviate the perceived problem.  It can serve to align you and your guest in a common mission to make the guest feel better, rather than encouraging confrontation and arguments about who said what or what park policy says.  And perhaps most importantly, an apology carries actual value to a guest - a guest is likely to accept less in resolution of his issue if he receives an honest and earnest apology for the guest's problem than if he perceives that management is simply falling back on policy and doesn't care about the guest's concerns.

Scientific studies back this up.  A study published in a British medical journal found that 37% of medical malpractice plaintiffs would not have brought their malpractice suits if the doctor involved had given them a full explanation of the situation and apologized.  Likewise, another medical liability study looking at cases of moderate physician error found that only 12% of patients would sue their doctor if the doctor informed them of an error in their treatment and apologized, while 20% would sue if they learned of the mistake later in some other way.  If patients are willing to look past a medical error that, in all likelihood affected their health and well-being, due to an apology, why wouldn't our guests do the same?

One of the interesting things I've noticed as a litigator is that, generally speaking, the more serious a potential claim the less likely it is that an apology will be given.  In other words, when parties see a potential lawsuit on the horizon, they typically clam up, call their lawyer, and assume an adversarial posture.  Parties seem to be concerned that an apology will be seen as either an admission of liability or as a sign of weakness that will undermine the ability to negotiate a favorable settlement.  However, if you are serious about reducing the chances that a complaint, even a serious complaint, will grow into a time consuming and expensive lawsuit, you need to put these concerns aside.

Is an apology a concession that you are at fault?  No ... at least not if done right.  Supervisors and managers need to be trained in the art of giving a partial apology - essentially an apology that acknowledges the existence of the guest's situation and expresses honest sympathy and compassion for the guest but does not acknowledge fault or liability.  These kinds of apologies carry a low risk of coming back to bite you later on.  In fact, if the claim goes any further, an honest expression of sympathy might even cast your facility in a positive light.  Rather than looking obstructionist or apathetic to the problem, your facility will be perceived as trying to do something to alleviate the issue.  Moreover, in some states, like Massachusetts, such statements of sympathy are deemed inadmissible in court as proof of fault.

Will an apology undermine the ability to get a favorable settlement?  Quite the opposite.  A few years ago, I represented a television station in a case brought by an plaintiff who alleged that station had reported a story about his brother that had unfairly cast the plaintiff in a poor light.  The case was extremely contentious and was litigated aggressively for more than two years.  On the morning of jury selection, the judge sat down with the lawyers and the parties to try one last shot at settlement.  The plaintiff gave us a demand for settlement, but also indicated that he would accept 20% less if my client would simply apologize.  Of course, after more than two years of bitter litigation, my client was in no mood for an apology. Ultimately,  the case settled, without an apology, about 30 minutes before trial was to begin, but this experience goes to my point that an apology has actual value in resolving claims.  Rather than handicapping your ability to resolve claims early and favorably, an apology can enhance the ability to resolve matters successfully.

Is an apology a silver bullet that will prevent every lawsuit before it gets going?  Of course not.  But if it only prevents one lawsuit from someone like Isabella Prescott's mother, it will have saved thousands of dollars in legal fees and prevented significant business interruption to your operation.  Viewed in this light, an apology is truly more than just an issue of guest service, it can be a powerful tool for avoiding litigation.