Organizations and businesses that operate adventure sports and/or outdoor activities confront special legal issues that their executives need to consider. This introductory article seeks to address those issues and provides basic guidance for assessing the need for legal advice specifically tailored to an outdoor/adventure organization.
First Basic Issue: Waivers.
Most organizations that allow participants to engage in physical or outdoor activities1 usually have participants sign a waiver of liability. Because of the higher incident of accidents and claims for such organizations, the waiver is essential for the organization to limit its liability. Both the content and collection methods of such liability waivers are, however, critical to their effectiveness. In the absence of proper drafting, waivers that have included a broadly written statement waiving liability by the participant (such as to hold a company “harmless from any and all liability”) have been deemed invalid by courts in many jurisdictions. In fact, many states have passed liability statutes and regulations that address restrictions of liability within specific adventure/outdoor activities. Additionally, the method in which a waiver is signed and collected (such as by mail, in person, or at the entrance to the facility) is also important to its enforcement. For example, in the Maryland case of Barber v. Eastern Karting Co., the court specifically expressed concern that the waivers were collected on site, at the gate-entrance to the facility holding the adventure activity. Consequently, outdoor/adventure organizations should require participants to sign a waiver and should consult with an attorney regarding its content and methods of collection to ensure that the waiver of liability is fully enforceable and provides the organization with the intended levels of protection.
Second Basic Issue: Insurance.
Accidents are a reality for all businesses but are more of an acute issue for organizations operating outdoor/adventure activities2. Maintaining the proper types and amount of insurance is critical for protection against a potential liability lawsuit. Unfortunately, many small organizations (such as local chapters of national organizations) mistakenly believe that they are covered by an umbrella policy of either a national organization or by the facility where they are hosting an event. These organizations often fail to analyze the terms and conditions of their insurance coverage and policy limits. It is imperative that all outdoor/adventure organizations meet with an experienced commercial insurance agent to verify that the organization has the correct type and amount of insurance coverage.
Third Basic Issue: Staff.
Outdoor/adventure organizations often hire seasonal employees or employees who are experienced enthusiasts in the organization’s specific outdoor/adventure activity. This business practice is seemingly beneficial and cost-effective because those enthusiasts are often the most skilled in, and knowledgeable about, the organization’s particular outdoor/adventure activity. However, the methods by which an expert participates in an outdoor/adventure sport are different than those that are required during instruction or guiding within the same sport or activity. For example, rescuing a fellow at-risk whitewater boater is an assumed course of conduct in expert whitewater paddling. In the West Virginia case of Murphy v. North American River Runners, Inc., however, a company was deemed potentially liable due to the actions of one of its guides during the successful rescue of another raft. As part of the rescue in Murphy, a raft guide positioned his raft to dislodge (through a “bump” or “hit”) a distressed raft which was stuck in the river. While the “bump” action successfully dislodged the troubled raft, a passenger in the rescuing raft was injured during the “bump.” Under the facts of this case, liability was deemed appropriate because the rescuing raft’s passengers had not agreed to help another raft in distress. Accordingly, education regarding proper safety and activity procedures as a guide or instructor for an outdoor/adventure organization’s staff is critical to operate without liability. Similarly, an outdoor/adventure organization should take precautions to ensure that its entire staff has necessary and required licensing and safety certifications (such as First Aid and CPR) and specific activity instruction related to the organization’s sport.
Fourth Basic Issue: Document Retention.
Lawsuits involving outdoor/adventure organizations often are controlled by statutes of limitations that extend for many years. This timing concern means that a past participant from many years ago has the ability to file a valid lawsuit against an organization. For example, in Maryland, a past participant has 3 years to file a negligence action against an organization. If the past participant was a minor at the time of the incident, then that participant has 3 years after their 18th birthday to file such a negligence action. To be able to effectively defend itself, an outdoor/adventure organization needs to create a proper document retention policy. If an organization cannot locate a signed waiver regarding a specific participant, that organization’s ability to defend a claim will be greatly diminished. All outdoor/adventure organizations should check with their insurance carrier regarding its document retention policy and, at a minimum, attempt to organize their files (electronically, if possible). They should keep all documents regarding adults for at least five (5) years and, for minors, at least five (5) years following the date the minor reached his or her 18th birthday.
Fifth Basic Issue: General Safety.
Even if an organization has a well-drafted waiver, properly-trained employees, and an appropriate document-retention policy, the organization still must ensure that its implementation of safety measures is satisfactory. Courts in many jurisdictions have consistently attached liability to an entity when the outdoor/adventure organization has not met the minimum safety standards for the specific activity being conducted, the facility where the event is being held, or the equipment used by the organization. Ultimately, every organization should hire an expert within the sport (preferably from a certifying agency such as ACA in whitewater, PADI in SCUBA, NOLS in wilderness exploration, AMGA in rock climbing) to gauge whether the organization is currently meeting all applicable safety standards.
For further information about these issues, please contact Adam L. Van Grack at avangrack@mcmillanmetro.com.