ISSUES IN OUTDOOR RECREATION LIABILITY
By Charles "Reb" Gregg, Esq.

Outdoor recreation is a risky business. In spite of our best efforts, people will be hurt, perhaps killed. If you are a thoughtful provider of outdoor recreation activities, you understand that the ethical argument for risk must extend to injury; and you have hopefully concluded, after an analysis of your program, that the rewards which you are delivering are worth the risks to which you expose your clients. One of your program goals, we assume, is the elimination of death and serious accidents and a reduction of all injuries, emotional and physical.

To assist you in gaining a more thorough understanding of the issues which face outdoor recreation programs today, the following questions and answers are offered. As is always the case with legal matters, you should consult your attorney for more specific information.

What is a good first step to deal with liability and risk?

Before you begin to deal with your program's risks, you need to identify and analyze what they are. An analysis of your activities calls for more than simply identifying what you are doing (rafting, for example). It includes the hazards (water, rocks and other obstructions); the risks of the activity (that one might fall overboard, be struck while in the raft, etc.); and the potential for death, injury or other loss (drowning, hitting something, losing gear, etc.). In the event of an injury and lawsuit, courts will examine your management of these program elements, and, in reviewing the protection provided by your assumption of risk and release documents, the client's knowledge of them.

I've never used a risk and release document. Where do I get one and will it protect me fully?

No document will protect you fully, always. Adversaries, judges and juries must be convinced about the facts and the law, and the parties' intent. But for a good start on an understanding of how you can document an agreement to shift legal liability, and other protection under the law, I suggest you read Cathy Hansen-Stamp's article in this issue, particularly her reference to the ORCA Guidelines document in the endnotes.

Is disclosure worth anything, or am I just scaring clients away?

Honest disclosure is critically important. Often overlooked in our industry is the fact that the participant is a partner in the risk management effort, and must accept the responsibility for following instructions and advising the organization of special issues affecting his or her participation. But this will only occur if the client knows what to expect. If your marketing promises an experience which your staff cannot deliver, problems can arise. Catalogs of smiling, happy people hiking under blue skies can be misleading, and certainly will be recalled negatively during a 4-day monsoon storm. Clients should be made aware that risks are a part of the program.

My average client is under 18. Can a minor release himself or herself?

A vexing problem continues to be the protection of a provider from claims of minors. For example, a student who broke his leg on your course in 1991 just turned 18 and has decided to file for damages which, he feels, negatively affected his performance in high school football. Do you still have his release forms? If so, great. But they could be worthless when it comes to protecting you. Minors generally retain the power to disaffirm contracts (including releases and waivers) until some statutory period after adulthood. Therefore, a release or waiver signed by a minor, or by an adult on behalf of a minor, may not protect you from the minor's claims.

Minors who participate in most outdoor activities may, however, be old enough to understand and knowingly assume risks that are either apparent to them or described and explained to them in writing. This assumption of inherent or other risks, either expressed or implied, may be an absolute defense to liability in some states and, in nearly all, at least allows the provider to argue that the minor, by participating in the risky activity, shares some responsibility for the injury or other loss.

What is an inherent risk?

Inherent risks are those so closely associated with an activity that they cannot be eliminated without altering the nature of the activity. A provider of services usually can avoid liability for losses caused by such risks by state statutes (recreation safety acts, for example), case law or written agreements whereby such risks are assumed. If that student broke his leg because he parachuted out of an airplane, and his instructors told him he could break his leg if he landed improperly, he suffered from an inherent risk of skydiving.

What if his parent signed an indemnity agreement?

Another possible means of protection from minors' claims, but one that has not been tested satisfactorily, is the use of an indemnity agreement. The strategy is to have the parents or guardian indemnify (that is, promise to defend and pay money, by reimbursement or otherwise) the provider if a minor or someone on the minor's behalf, should sue the provider. While it might help, you should know that at least one state court has ruled that such a method of protection is against public policy, for it essentially puts family interests in conflict.

What if, to protect myself from lawsuits, I hire only independent contractors?

You might not be as protected as you think. Contractors can remain independent contractors (and the hiring party can be shielded from liability for their actions) only so long as the provider does not control what that contractor does. If contractors are being used to provide some part of the services offered to the public, the public should be so advised. In addition, the provider may protect itself from accidents that occur while the contractor is in control of the participant by an indemnity (as described above) from the contractor. So if you own a Colorado-based whitewater rafting company, for example, and you want to offer courses through an acceptable permit holder in Oregon, make sure that the company with which you sub-contract has signed an indemnity agreement to hold you harmless should things go wrong. (You may also ask to be included in the contractor's insurance coverage and release agreement.) In addition, be careful how involved you get in the contractor's business or you may be treated by a court as if you ran that course yourself.

What about volunteers or interns. Are they liable?

I often receive questions about the vulnerability to suit of volunteers and not-for-profit corporations. Many states' statutes give some relief from liability to certain types of not-for-profit corporations and to volunteers, directors, trustees and officers of those entities. You should check with a lawyer in your jurisdiction on these matters. Volunteers and employees of not-for-profits often are excused from liability for personal injuries of most types so long as they are acting reasonably and in the interests of the organization, and their acts are not grossly negligent or intentionally wrong. The organization, too, may have some monetary limitation upon its liability. The newly enacted federal Volunteer Protection Act of 1997, effective in September, provides protection to volunteers of limited types of charitable organizations, including those qualifying under Section 501(c)(3) of the Internal Revenue Code. The Act pre-empts more restrictive state laws and is worth careful study by your attorney.

I know a few outfitters carry cell phones in the field. As an outfitter who operates in an area with unreliable coverage, am I at risk if I don't have phones in the field?

A number of new communications devices are on the market and the public often expects, without knowing, that a provider will have those items in the field. The challenge to the provider is to anticipate what the student or client may expect and, if that technology will not be on hand, to be sure that the client understands that it is not. As you point out, radios and cellular phones are often useless in mountains and other terrain.

Nevertheless they may be an expected part of an outdoor activity. If, to preserve the quality of the outdoor experience, or for any other reason, the provider does not expect to use those communication devices, the client should be so advised. Even if they will be available, the client should be advised of the unreliability of such devices.

If one of my clients sexually, physically or emotionally abuses another client...am I liable?

More and more behavior problems are appearing in both therapeutic and non-therapeutic programs. Much of this ugly conduct is directed at young women. Unless your program is designed or otherwise prepared to deal with such issues, special care should be taken in your publications to make clear your tolerance--or zero tolerance--for this and other behavior which detracts from your program. You should be very clear about the conditions under which a student or client will be separated from the program, the limits of your responsibility for the student after separation, and your policy regarding refunds, if any, of tuition.

The risk of being abused by a fellow student is not an inherent risk of an activity, nor can it likely be assumed as a matter of law. A provider who allows such behavior to occur exposes itself to legal liability for at least breach of an implied agreement that a participant will have a fair opportunity to enjoy the course for which he or she has paid.

The most important challenge in the current atmosphere of aggressive marketing of outdoor programs is to fairly and accurately portray your program, describing what it does and doesn't do and what it is willing to tolerate and not tolerate. The provider then must have a means of screening and supervising, and a mechanism for separating the student who poses a safety hazard to the group or otherwise jeopardizes the quality of the activity.

Would an accident on Forest Service land be treated any differently than the same accident on, say, Bureau of Land Management land?

If your program operates on government land--including state, county or city land--you should consult with local counsel regarding possible limitations on your ability to be relieved of responsibility for injuries, death or property loss caused to a client, and other requirements of these authorities. The National Park Service, for example, currently does not allow a permittee to obtain releases or waivers from a client. The NPS does allow written assumptions of inherent risks for activities in National Parks. This policy has been adopted by some Forest Service regions. Check with the land manager.

Suppose I do end up in court. As an outfitter who operates in many states, I have a few choices for where any litigation would take place. Does it matter where I end up?

Yes. As courts become more receptive to releases, waivers and covenants not to sue, the language of those documents becomes more specialized. A recent case ruled that an agreement not to sue for injury and property loss does not release a claim for death. A case from a neighboring country found that the term "negligence" was vague. Depending on the laws of the state in which you operate you may-and probably will-be entitled to specify the state law which will be applicable to a controversy with a client. The designated law must have some reasonable connection with the transaction, or you may find that the law applied is that of the place of the accident. You may agree to the state, even county, in which a lawsuit or alternative means of resolving the dispute must be filed or held; the recovery of your costs if and to the extent a suit against you is unsuccessful; and a provision that if any part of the agreement is determined to be invalid, the remainder of the agreement nevertheless will stand. Most states now allow a person to waive, in advance, a claim against another for that other's negligence (but not claims for gross negligence or intentional wrongs). Requirements vary, so check with local counsel.

Mediation and arbitration of disputes are becoming popular means of resolving conflicts, thereby avoiding the cost, time and more adversary nature of a protracted lawsuit. Generally, parties can agree in advance to mediate and/or arbitrate. Again, laws of your state will determine if and how these commitments must be made.

Any last words of advice?

Financial risks to the institution and its owners and staff can be properly managed and minimized through agreements which allocate or shift liability; the wise use of professionals (e.g. medical and legal); an internal structure for isolating the impact of the accident on the smallest portion of the program's staff; and incorporation of the business. Sometimes overlooked is the vital role of good office administrators, and the maintenance of high morale, competitive salaries and an active Board of Directors.

Owners must study those elements of their programs which represent the greatest exposure to injuries and lawsuits and responsibly manage them.

The best protection against legal liability is a good program whose priorities include fair, honest and professional treatment of its clients and staff, in the field and in its administrative offices. If you have such a program, the liability issues generally will take care of themselves.