Legal Concerns for Winter Sports and Recreation Businesses

I. First Basic Issue: Winter Activity Waivers & Releases. Winter sports and outdoor organizations that allow participants to engage in physical or outdoor activities (such as rock climbing, mountain climbing, downhill skiing, cross country skiing, telemark, snowboarding, ice skating, and sledding) usually have participants sign a waiver or releases 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. As an example, in the Oregon case of Bagley v. Mt. Bachelor, Inc. (decided a last year), the court addressed a ski and snowboard resort that had participants sign a liability waiver to insulate Mount Bachelor for negligence in maintaining or installing its ramps or chairlifts. In Bagley, the court decided that the liability waiver presented by Mount Bachelor to Bagley (and which Bagley agreed to) was unconscionable. The court specifically ruled that the contract provisions in Mount Bachelor’s waiver were unambiguous and conspicuous and likely unenforceable in light of public policy. While winter-adventure seekers at Mount Bachelor (skiers and snowboarders) engage in a dangerous outdoor recreational activity, the court decided that the resort could not remove all liability for its own negligence.  Both the content and collection methods of such liability waivers are, however, critical to their effectiveness. In the absence of proper drafting, some 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. Consequently, winter sports/recreation/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.

II. Second Basic Issue: Insurance. Accidents are a reality for all businesses but are more of an acute issue for organizations operating winter outdoor/adventure activities. 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.

III. Third Basic Issue: Winter Sports Staff. Winter sports and outdoor businesses 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 a winter 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 that 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 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 operating 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.

IV. Fourth Basic Issue: Winter Activity Document Retention. Lawsuits involving winter sports and outdoor 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, a winter outdoor and sports organization needs to create a proper document retention policy. If an organization cannot locate a signed waiver regarding a specific participant, that organizations ability to defend a claim will be greatly diminished. All winter sports and outdoor 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.

V. Fifth Basic Issue: General Winter Activity Safety. Even if a winter sports business 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 winter sports and outdoor 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 PSIA in skiing, AASI in snowboarding, NOLS in wilderness exploration and AMGA in rock climbing) to gauge whether their winter sports/outdoors organization is currently meeting all applicable safety standards.

Longman & Van Grack regularly assists sports and recreation companies with these types of unique legal issues within our Sports and Recreation Law practice. In fact, one of our attorneys, Adam Van Grack, has been regularly recognized for his assistance to outdoor and recreation entities.  Call us at (301) 291-5027 if you have any further questions or if you think we can help you out.