Legal Concerns for Boating, Whitewater, and Outdoor Recreation Companies
Summer is almost here, and the warmer weather means many outdoor and water-based companies (like camps, outfitters, and river guides) will be open for business throughout Maryland, DC, Virginia, and other places throughout the country. Companies that focus on outdoor recreation, especially water-based activities (such as whitewater kayaking, whitewater rafting, canoeing, SCUBA diving, water skiing, sailing, surfing, and fishing) have unique legal concerns. Water-based outdoor recreation companies not only have to be aware of the legal issues that typical companies encounter, but they also have to address a unique set of legal concerns. This article will describe some of the legal issues that outdoor recreation organizations — especially water-based companies, like kayaking and canoeing — need to consider and address as part of their entity’s business plan.
I. First Basic Issue: Waivers & Releases. Most outdoor recreation organizations that allow participants to engage in physical, water-based, or boating activities usually have participants sign some type of a waiver or releases of liability. In this context, waivers are critical for any company to limit its liability because of the higher incident of accidents and claims for water or outdoor activities. Plainly, in most cases, a waiver is protection. However, all waivers are not the same. The content as well as collection methods of liability waivers are critical to the any waiver’s effectiveness. In the absence of proper waiver/release drafting, some waivers that have included broadly written statements waiving liability by the participant (such as language to hold a boating company harmless from any and all liability) have sometimes been deemed invalid by courts in many jurisdictions. In fact, some states have passed specific liability laws that address restrictions of liability within specific adventure/outdoor activities (including whitewater kayaking and whitewater rafting). 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 go-cart Maryland case of Barber v. Eastern Karting Co., the Maryland court specifically expressed concern that the waivers provided by the company were only able to be signed and collected on site, at the gate-entrance to the facility holding the adventure activity. The Barber Court specifically noted that the liability waivers should have been provided prior to the immediate start of the activity. Consequently, outdoor sports and water-based companies should be advised to require participants to sign a waiver and should consult with an attorney regarding the waiver’s/release’s 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.
II. Second Basic Issue: Insurance. Accidents happen. Accidents are a reality for all businesses but are more of an acute concern for organizations operating outdoor sports and water-based activities like whitewater guides, fishing guides, or boating operators. Maintaining the proper type and the proper amount of insurance is critical for protection against a potential liability lawsuit. Unfortunately, many small outdoor recreation companies 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 smaller organizations often fail to analyze the terms and conditions of their insurance coverage and policy limits. It is imperative that all outdoor, boating, and water-based organizations meet with an experienced commercial insurance agent to verify that the organization has the correct type and amount of insurance coverage.
III. Third Basic Issue: Staff. Outdoor recreation and water-based organizations often hire seasonal employees or employees who are experienced enthusiasts in the organizations specific outdoor/adventure activity. For example, summer river guides or camp counselors. This staff-hiring business practice is seemingly beneficial and cost-effective because those outdoor enthusiasts are often the most skilled in, and knowledgeable about, the organizations particular outdoor/adventure activity. However, the methods by which an outdoor expert participates in an outdoor sport are different than those that are required during the instruction or guiding within the same outdoor sport or activity. For example, rescuing an at-risk whitewater rafter is an assumed course of conduct in expert whitewater paddling. In the whitewater-rafting 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 rescue bump action on the river in this case successfully dislodged the troubled whitewater raft, a passenger in the rescuing raft was injured during the bump. Under the facts of the Murphy case, liability against the whitewater rafting outfitter was deemed appropriate because the rescuing raft’s passengers had not agreed to help another raft in distress. Accordingly, proper education regarding safety and activity procedures as a guide or instructor for an outdoor/adventure organizations staff is critical to operate without liability risk. Similarly, an outdoor recreation company should take precautions to ensure that its entire staff has necessary and required licensing and safety certifications (such as ACA (with kayaking and canoeing), PADI or NAUI (for SCUBA), First Aid, and CPR) and specific activity instruction related to the organizations sport.
IV. Fourth Basic Issue: Document Retention. Lawsuits involving outdoor recreation companies often are controlled by statutes of limitations that extend for many years. This means that former clients can still exert a claim for a number or years after their participation in the outdoor recreation activity. 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 a outdoor sports company. If the past outdoor recreation participant was a minor at the time of the incident, then that activity participant has 3 years after their 18th birthday to file such a negligence action. To be able to effectively defend itself, an outdoor or water-based company needs to create a proper document retention policy. If a recreation organization cannot locate a signed waiver regarding a specific participant, that company’s ability to defend a claim will be greatly diminished. All outdoor industry companies should check with their insurance carrier regarding its document retention policy and, at a minimum, attempt to organize their files (electronically, if possible). We generally recommend that our clients 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.
V. Fifth Basic Issue: General Safety. Even if an outdoor recreation company has a well-drafted waiver, properly-trained employees, and an appropriate document-retention policy, the company still must ensure that all implementation of safety measures that it practices is satisfactory. For example, it is critical for all boating companies and river outfitters to follow the boating safety laws within the company’s location. Additionally, courts in some locations have attached liability to a company when an outdoor recreation company has not met the minimum safety standards for the 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 AMGA in rock climbing; ACA in whitewater, canoeing and kayaking; PADI or NAUI in SCUBA; NOLS in wilderness exploration; and AMGA in rock climbing) to gauge whether the outdoor company is currently meeting all applicable safety standards.
Longman & Van Grack’s outdoor recreation law attorneys regularly assists a variety of clients with many types of legal issues such as releases and waivers within the firm’s Sports and Recreation Law practice. In fact, Longman & Van Grack attorney Adam Van Grack has not only represented sports and recreation companies, but he has also been a board member of several sports safety organizations. Call our firm at (301) 291-5027 to speak with one of our attorneys at our Rockville, MD; Bethesda, MD; Washington, DC; or Tysons Corner, VA Offices, if you have any further questions or would like to meet with one of our attorneys.
