Outdoor recreation, from whitewater rafting to ziplining to mountaineering, often includes inherent risk. If you manage an outdoor recreation business or organization, it is important to honestly and carefully assess what risks are inherent in the activities you provide. You should also know how to effectively communicate what these inherent risks are prior to someone participating in the activity you are offering.
In this post, we will define inherent risk, give a few examples of inherent risk, and provide four best risk management practices for informing and warning participants of inherent risk.
Defining Inherent Risk
Definition: An inherent risk in outdoor recreation is a risk that is present in a dynamic outdoor activity, one which cannot be effectively eliminated, altered, or controlled. In the context of outdoor recreation businesses and organizations, inherent risks are generally risks that the participant legally assumes. However, if you don’t carefully assess and explain what risks are inherent, an injured participant may be able to accurately argue that they didn’t understand what they were getting into, and thus did not assume the risks of the activity.
Examples of Inherent Risk
For a backcountry trekking business, an example of an inherent risk may be tripping and falling on an exposed trailside ledge. Even the most accomplished hiker will stumble on occasion. The business may mitigate the risk by requiring participants to wear appropriate footwear, demonstrating how to take careful steps, and training their guides to take frequent breaks with the participants. They may inform and warn the hikers that there will be exposed section of trail where careful footing will be imperative.
The risk of a fall off the exposed trailside ledge, however, can never be completely eliminated, altered, or controlled. To do so would change the fundamental nature of the activity. Walking around a flat, grassy sports field is not as much fun, and not the adventurous backpacking trip everyone signed up for.
Another example of inherent risk in outdoor recreation is exposure to inclement weather including cold-weather conditions that may lead to hypothermia. A fly-fishing outfitter, for example, may mitigate the risk of hypothermia by encouraging guests to bring warm clothing layers and training guides in first responder skills including hypothermia prevention. The risk of getting caught in a thunderstorm and becoming hypothermic, however, can never be completely eliminated, altered, or controlled. To do so would change the fundamental nature of fly fishing. It isn’t very exciting to catch trout indoors in a pool and there is no way to accurately predict the weather 100% of the time, nor to ensure that a participant doesn’t get too wet or cold.
Importantly, human error is also part of the inherent risk of recreating with a professional outdoor guide, leader, or instructor. This critical aspect of adventure in the outdoors is frequently missed when communicating inherent risk to participants. It is important to encourage participants to take an active role in their own safety, rather than assume the “guide is looking out for me” and turn off their critical thinking. Even a highly trained outdoor professional can misjudge, misstep, or make a mistake. Informing and warning participants of this reality is wise.
Risk Management Best Practices for Communicating Inherent Risk
As an outdoor recreation business or organization, it is part of your job to communicate the fact of the inherent risks present in the experience you facilitate to your participants. Depending on the state you operate in, it may even be considered an established legal duty to inform, disclose, and warn about the inherent risks of the activity. Here are four important practices for informing and warning participants of the inherent risks they are assuming:
1. Require Participants to Sign a Liability Waiver/ Acknowledgement of Risk
The basic purpose of an assumption of risk form or liability waiver (a/k/a release) is to assist in fully and fairly informing the participant of the expectations of them and dangers they may encounter during the activity, and in the case of a waiver, to secure their agreement not to hold you liable for any injuries that may occur. Careful and intentional drafting is critical for effective liability protection.
Liability waivers and acknowledgment of risk, while often used interchangeably within the industry, are actually two separate legal doctrines and contractual agreements. It is important to understand how to leverage both of these legal defenses within your liability form, while staying within the boundaries of any permitting agency rules on the use of liability waivers.
Even the most carefully and thoughtfully drafted waiver will not be effective if it isn’t properly implemented. You should follow best practices for liability waiver use. This includes, for example, providing the waiver ahead of time, ensuring the waiver is readable, and securing the correct, identifiable signature.
2. Provide a Clear and Concise Safety Briefing
An outdoor recreation safety briefing should be serious, concise, and clear. Although it’s tempting to make a safety briefing humorous and fun, or rush through the briefing to save time, this should be avoided. The safety briefing is an important time to reiterate inherent risks and help participants better understand how to mitigate their own risk of death or injury. As possible given the constraints of your location, hold safety briefings in a quiet, distraction-free area. Staff should be trained on this topic and practice giving effective safety briefings.
3. Give People A Chance to Not Participate
Following both written and verbal briefings and signing a liability waiver and/or acknowledgment of risk, the potential participant should receive the chance to not participate in the activity. This can be ensured by offering the safety briefing and other pre-trip materials well in advance of the trip, or offering transportation as needed. A participant should never feel coerced into the activity due to not understanding the risks until it is too late to leave.
4. Use Statistics to Illustrate Risk
When training staff to communicate inherent risk, we often hear that businesses and organizations are worried about scaring away their customers. While it is important to be honest about the inherent risk in outdoor recreation, including serious injury or death, it can also be helpful to share statistics about the likelihood of the risk occurring, in order to put the risk in perspective.
For example, if you are a whitewater rafting outfitter in Glacier National Park, you might say, “According to data from park visits between 2007 and 2018, there were 13 deaths per 10 million visits to the park. Your likelihood of not returning home from our adventure today is not zero but it is also not high.”
Next Steps for Your Business or Organization
In conclusion, inherent risk in outdoor recreation is a risk that is present in a dynamic outdoor activity, one which cannot be effectively eliminated, altered, or controlled. Reflect on your outdoor recreation business or operation. What are the inherent risks of the activities you offer?
An understanding of these inherent risks will also help you and your staff inform and warn your participants prior to the activity, so they can opt out if they don’t wish to assume the risks. Remember to use best practices including requiring participants to sign a liability waiver or acknowledgment of risk, providing a clear and concise safety briefing, and giving people a chance to not participate. Do you inform and warn in a manner that allows your participants the opportunity to truly understand these risks?
It is inherent to outdoor recreation activities that, on rare occasions, injury or fatality may occur. Your role as a recreation provider is to understand, plan for, and train your staff for that potential so that you can swiftly, competently, and compassionately respond. Ask yourself, are you confident in the efficacy of your planning and training for risk management?
If you have questions about inherent risk and your outdoor recreation business or organization, we’re happy to help. Reach out today for a conversation with an experienced outdoor recreation attorney or risk management professional.
Disclaimer: This blog post is not intended to provide legal advice, nor should it be viewed as such. Legal advice can only be provided based on specific facts. Receiving or viewing this blog post does not constitute an attorney-client relationship.
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