Negligence Liability Defense

It is vital for any outdoor recreation company or outfitter, and gear manufacturer and/or seller, to be aware of simple steps it should take to decrease liability and, more importantly, potential injuries to customers and clients. In addition to recommended assumption of risk and liability waivers, the first steps should also involve clear notice of dangers and procedures to the clientele. It is also important that the business realize that the risk and negligence issues involved with any activity or location may always be evolving and changing, and the notice materials and information provided to the clients should match this evolution in kind. Even schools and other educational or recreational programs should use some type of liability waiver prior to allowing individuals to attend and engage in recreational activities that carry any sort of risk of injury or death.

First, any recreational program, outfitter, or company should have “assumption of risk and liability waivers” for each customer to sign prior to engaging in any of the company’s activities or being provided with any outfitter’s gear. It is important that the customer is fully informed of the activity and its corresponding dangers, and agrees to that he or she will assume the risk and waive the recreational company’s liability to participate in the activity. A good liability waiver may not only protect one’s business from general negligence, but could also cover acts of nature, gross negligence, and other potential actions by the client. While such a liability waiver could be cobbled together out of internet information and samples, do you really want to risk your business, and possibly personal financial security, upon something not drafted and/or reviewed by an attorney who may be representing or defending you? It is recommended that all companies engaging in recreational activities and adventure gear seek attorney consultation on the front end to decrease serious potential liability down the road. Please recognize that if minors are involved in any activities you must get a guardian’s signature. It is also recommended that you take steps to ensure that it is a guardian’s signature, such as watching the signing or comparing with prior signatures on file.

The initial claim in any personal injury lawsuit emanating from an outdoor recreational activity is generally that the individual was not properly informed of the activity, situation, and/or dangers. It is not only important for outfitters and gear companies to make clients fully aware of the activities and dangers, but also to have a way to prove that they provided such warnings and, importantly, the customer was made aware of such information or warning. While the first step is assumption of risk and liability waivers, as discussed above, the next step is a continued process of providing information and notice of activities, rules, risks, and dangers to the clientele.

The second type of negligence claims that may result from these kinds of recreational activities are that the injured individual(s) or guides/outfitters were not properly trained and prepared for the activities in which they were engaging or gear they were going to use. Outside of training and information sessions, easily accessible and viewable signage will be strong supporting evidence that all were aware of any dangers and risks. The evidence of proper training and certification of guides and outfitters responsible for informing customers will further protect your clientele and give your business and defense further credence against any potential negligence claim.

It may be beneficial for the recreational company or outfitter to provide a required video or information session, possibly with supporting materials, after the customers have signed the waivers and prior to allowing them to engage in the activities or use the equipment. Making such a session a regular and habitual practice, which you perform each and every time, will further substantiate that the recreational company or outfitter is taking the necessary steps to properly inform the customer and thereby avoid negligence liability. Independent third (3rd) party witnesses are also valuable to verify information was shared in a certain instance and that individuals signed the waiver, release and assumption of risk documents. While employees can be witnesses, it will present better if the witness is an independent individual, like another customer, not affiliated with the business, to decrease any question of bias in the particular testimony. The important thing will be to prove that on the instance in question the client was fully informed and agreed to take part with that information in hand.

Finally, the signed waiver, release and assumption documents, and all other clientele and operational records are only useful if it they are kept and available later. It is of no help, and essentially useless, if you make the efforts to protect your business, but then are unable to present those materials when they are most needed. Therefore, it is important for any company to keep such documents and records organized and in a location that may be accessible for at least 3-6 years following the recreational activity, as this is the range of statute of limitations for negligence claims in North Carolina. In North Carolina personal injury negligence claims have a three (3) year statute of limitations while product liability claims may be brought up to six (6) years following an injury or other problem. Please recognize that each state has its own statute of limitations for each kind of legal claim and they may differ from state to state.

In a subsequent article, I discuss the importance of industry standards for outdoor recreation companies and outfitters, and that such businesses should make best attempts to keep up with and adopt/follow such industry standards to further insulate themselves from the liability discussed herein.

Forrest Merithew regularly participates and engages in outdoor recreational activities and adventures throughout North Carolina, the United States, and internationally. This first-hand experience with adventure activities and gear, along with his business development and consultation practice, allows him to effectively communicate and work with recreational companies, outfitters, and gear manufacturers and sellers in the establishment of their product or program. In addition to his experience on the ground and in the wild, Forrest’s civil and commercial complex litigation defense background provides him with the tools and abilities to successfully defend your company against a pending negligence, product liability or other related claim(s). Forrest is also actively engaged in environmental, renewable energy, and water law and conservation matters further connecting him to the regional and international issues facing outdoor recreational businesses, outfitters, and manufacturers.

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