Editor’s Note: Peter Pelland is the CEO of Pelland Advertising, a company that he founded in 1980 and that has been serving the family camping industry for nearly 40 years. His company specializes in building fully responsive websites, along with producing a full range of four-color process print advertising, for clients from coast to coast. Learn more about Pelland Advertising at www.pelland.com.
Liability can take many forms, and it is important for every business to take reasonable precautions to protect its interests in the event of either physical or emotional injury claims on the part of guests. Injuries of either type may often lead to claims for compensation and damages, even when the injuries are the result of reckless behavior on the part of a guest or the failure to follow posted rules and regulations. Businesses with greater inherent risks of injury must take greater precautions to protect themselves from the threat of lawsuits.
Campgrounds with greater inherent risks might include parks with ziplines, shooting ranges, river rafting, paintball fields, mountain biking, mechanical bulls, and climbing walls; however, every park has liabilities, and there are probably more personal injury attorneys within a 50-mile radius of your park than there are churches, schools, and hospitals combined.
Many campgrounds utilize blanket release forms known as crowd releases. Crowd release forms are generalized notifications that your guests are surrendering their reasonable rights to sue pursuant to their use and enjoyment of your park and its facilities, and they typically apply to the taking of photographs or videos. A crowd release will warn people that photography and filming may be ongoing at any time, that the images may be used in any and all media, in perpetuity, and that the guest consents to the use of his or her image without compensation by nature of entry; however, crowd releases rarely cross the line and attempt to cover the issues of physical liability. Crowd release forms also constitute rather weak defenses in a court of law.
If your park offers recreational amenities or activities with greater inherent risk, you will want to incorporate some very specifically detailed liability releases. There is no question that risky activities offer a great deal of appeal, particularly among younger guests, and can go a long way toward expanding a park’s customer base; however, it is necessary for your business to take reasonable measures to ensure the safety of its guests and to take measures to protect itself against lawsuits that may result if injuries are inflicted during the pursuit of those activities. Needless to say, the incorporation of these precautions should go hand-in-hand with the purchase of suitable liability insurance.
Association has promoted a Responsibility Code that has attempted to shift responsibility for injuries upon skiers and snowboarders, not the ski area operators. The code advised users to ski in control, be able to stop at all times, avoid those downhill, yield to those uphill, not stop where they would obstruct a trail, utilize retention devices, observe signage, keep off closed terrain, and know in advance how to use lifts.
The Responsibility Code was a start, but the extensive text printed on the backs of most lift tickets in recent years* has been designated as a “Ski Ticket Contract and Express Assumption of Risk”. The following text is typical and taken from the back of a lift ticket issued not that long ago: “I accept and understand that skiing, snowboarding, and other forms of winter mountain sports are hazardous, with many inherent risks and resulting injuries or death. By my purchase and use of this ticket, I freely and willingly accept and voluntarily assume all risk of property damage, personal injury or death which results from my participation in winter sports activities and the inherent risks of such activities as they are defined herein.” This statement is followed by an extensive paragraph that itemizes those inherent risks, both natural and man-made.
*Most ski resorts in 2020 no longer issue physical lift tickets and have switched to RFID cards where users load a specific time frame for lift access, from single-day to full season. When purchasing this electronic access, the user must agree to a full menu of terms and conditions.
One might think that this broad wording would release the business operator from almost all liability; however, the ski industry takes added measures to reduce the risks of injury, including the use of ski patrollers to open and close trails during the course of the day, sweep trails at the end of the day, control avalanches, and evacuate injured skiers from the slopes. Grooming, signage, the increased use of helmets, and improvements in the safety of equipment also help to reduce the likelihood of injuries. Despite all of these efforts to reduce liability, enforceability is never ironclad. In December 2014, the Oregon Supreme Court ruled that a season pass waiver was unenforceable, opening the way to a $21.5 million personal injury lawsuit, and this ruling has since been used to chip away at the overall validity of waivers and releases.
Bearing in mind the potential legal issues of enforceability, parks that provide higher risk amenities should follow the lead of not only the ski industry but also the amusement park industry, which routinely enforces height, weight and age restrictions, along with providing a long list of health conditions that should preclude participation. Those conditions typically include, but are not limited to, pulmonary problems, high blood pressure, cardiac disease, pregnancy, obesity, seizures, prior injuries, fear of heights, and psychological or psychiatric problems. Yes, that list covers just about everything. Health issues require a separate signed waiver.
When I enjoyed the use of a high ropes and zipline course not long ago, I signed both a written liability release and a health waiver. I was provided with copies of each, I was provided assistance in properly suiting up for the activity, and I was provided with basic instruction in the use of the equipment. In another outing, I visited a resort that operates mountain biking trails and a mountain coaster. At this facility, guests are directed to a row of computer kiosks where liability releases and health waivers are digitally signed before tickets may be purchased.
There are a number of companies that provide reasonably priced digital release services that work with either computer kiosks or mobile apps. These services save time, avoid the generation of a mountain of paperwork, are secure, offer cloud storage, provide analytical information, and can even integrate with email marketing programs as a means of generating return visits. Some services even allow seasonal businesses to adjust their subscription services between their peak season and off season. A few of the companies that you may want to look into include:
- Smartwaiver – https://www.smartwaiver.com/
- WaiverForever – https://www.waiverforever.com/
- WaiverElectronic – https://www.waiverelectronic.com/
- WaiverSign – https://www.waiversign.com/
- Clever Waiver – https://www.cleverwaiver.com/
Whether your park uses crowd releases, liability releases, health waivers, or a combination of all three, it is important to make every effort to protect its interests and to avoid the many catastrophic impacts of personal injury lawsuits.