Are you Managing All your Legal Risks?
Find out how from the Recreation Law Center Experts!
Every day you have to balance your risk management equation and keep tracking of changing laws and court decisions. The Recreation Law Center Library is your portal for understanding the complex legal issues in outdoor adventure and recreation. Reb Gregg and Catherine Hansen-Stamp, two of the best-known recreation law attorneys in the United States, analyze cutting edge court decisions pertinent to the industry.
Reb Gregg
Reb is a practicing attorney in Houston, Texas, specializing in issues of outdoor recreation and education law. He has served as President of the Houston Bar Association. Reb serves on the Board of Directors of the Student Conservation Association (SCA), on the Wilderness Risk managers Committee, and on the Accreditation Council of the Association for Experiential Education. He consults with and serves as counsel to numerous outdoor adventure and education programs, including summer camps, secondary schools, challenge courses and outfitters. He serves as general counsel to the Association for Challenge Course Technology and served for many years as counsel to the National Outdoor Leadership School. He is a frequent speaker and writer on subjects important to the industry.
Catherine Hansen-Stamp
Catherine is an attorney in private practice in Golden, Colorado. She consults with and advises recreation, adventure and sport program providers and product manufacturers/sellers and related organizations on law, liability and risk management issues. She speaks and writes frequently on these issues, both regionally and nationally. Catherine’s clients include camps and outdoor programs, public and private schools, outfitters and guides, dude ranches, science and environmental programs, ropes and challenge course builders and facilitators, adventure product manufacturers/sellers, resort owners, competitive event sponsors and others. She graduated in 1981 from The Colorado College (Colorado Springs, Colorado), and received her Juris Doctor degree from the University of Wyoming (Laramie, Wyoming) in 1985. She is a member of both the Wyoming and Colorado Bar Associations.
Cathy and Reb have collaborated on a variety of writing and presenting in the adventure and recreation industry. Cathy & Reb co-chaired the first four CLE, International conferences on Recreation & Adventure Law & Liability held in Colorado 2003 – 2006. They have spoken for many years at the Wilderness Risk Managers’ Conference (WRMC), the American Camp Association (ACA) National Conference and numerous other industry events. Cathy and Reb were the former Editors of the Outdoor Recreation & Adventure Law Quarterly, published by The Outdoor Network from 2001 – 2004. Reb and Cathy wrote cases for The Recreation Law Center starting in 2009.
The following Cases are available for subscription from The Recreation Law Center.
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Caution! Participant Agreements Containing a Release of Liability – FREE SAMPLE CASE
by Reb Gregg & Catherine Hansen-Stamp
This FREE sample case will give you an idea of the legal insight you’ll get from Recreation Law Center Cases. This Florida case emphasizes the need to carefully craft participant agreements or other documents that include language seeking a release of liability for your organization’s negligence, considering a court’s strict reading of that language.
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Understanding the Work Product Doctrine: Are your Records Protected?
by Reb Gregg & Catherine Hansen-Stamp
Bad event. Write it up? Maybe not. A quality operation records near misses and loss-causing events and may collect witness statements and other materials pertaining to the occasion. Some organizations do this as a matter of policy and practice, so that management can understand what happened (or almost happened), determine how to reduce the chance of it happening (again), and, perhaps, determine whether the organization has an obligation to compensate persons affected. Other organizations record such events only, or primarily, in anticipation of having to defend a lawsuit arising from the incident or related to the near miss. The more likely a claim, the more likely a record will be made.
Responsible leaders are confused about the vulnerability of any such record to discovery by an adversary in a law suit and how any such vulnerability might influence what is recorded and how. Some lawyers, in fact, have been known to discourage the maintenance of any kind of record of an event, for fear that it will increase an organization’s exposure to claims and liability—or at least greatly simplify the task of the opposing lawyer. In the latest case at The Recreation Law Center by Reb Gregg and Catherine Hansen-Stamp offers a window into application of the “work product” rule as a vehicle to protect incident and accident reports, e-mails and witness statements from discovery by the opposing attorney in the context of a lawsuit.
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Do Parents Have the Right to Release Their Child’s Right to Sue?
by Reb Gregg & Catherine Hansen-Stamp
You might think it obvious that a parent can act on his or her minor child’s behalf to release the child’s right to sue. We have had several courts ruling on this issue recently. The trend appears to be “no, they cannot.” However, some courts have carved out a distinction between “commercial” and “non-commercial” entities in determining who is more worthy of protection and thus, whether a parent can release these rights on behalf of their child. The North Carolina Court takes this path in our latest case offering. What do you think? Is the distinction valid?
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Sports, Negligence, and Inherent Risks—Who Owes What Duty to Whom?
by Reb Gregg & Catherine Hansen-Stamp
In this month’s case, the Indiana Supreme Court has provided us with a virtual symphony of duty of care issues. Duty is the obligation to protect another from harm. In the case of a teenage girl injured during a sporting event, we see that the duty of care owed to another is fluid, and can change, depending on the nature of the activity, the relationships of the parties to that activity or other factors. Even in the course of a one day hike, a camp semester, or a visit to a climbing gym, for example, the duty of a service provider to a participant can change many times and with it, the provider’s exposure and liability.
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Product Recalls: Does a Product Recall Mean a Release “Recall?”
by Reb Gregg & Catherine Hansen-Stamp
What are the legal rights of a product user injured by a recalled product which the retailer failed to take off the shelf? In a recent case, a Utah Court rules that a retailer of such a product, sued by an injured product user, could not succeed in claiming that a release of liability, signed by the user, protected the retailer from liability.
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Minors: When are they Old Enough To Know Better?
by Reb Gregg & Catherine Hansen-Stamp
Most programs deal with young children on a frequent basis, and can benefit from an understanding of a child’s legal responsibility, within the context of a lawsuit, for their assumption of risks. In Kane, a Georgia Court dismissed a suit where a child fell from a piece of equipment on the basis of a nine-year old’s knowledge of climbing (and falling).
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Issues Involving Your Duty of Care—Where Does it Begin and End?
by Reb Gregg & Catherine Hansen-Stamp
Where does an individual’s or organization’s duty of care begin and end? The Supreme Court in Maine looks at a unique issue involving allegations of sexual assault that occurred after a participant left a program.
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Inherent Risk “No Duty Rule” Made Simple. Finally!
by Reb Gregg & Catherine Hansen-Stamp
No Duty – No Liability – Case Dismissed! Your best defense to a claim of negligence may be that a participant’s injury resulted from an inherent risk of the activity—the doctrine of Primary Assumption of Risk. A California broomball case illustrates how this doctrine can be used as the basis for dismissal of a claim of negligence. Get acquainted with this valuable defensive tool and how it is interpreted in your jurisdiction.
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Contracting Between Premises Owners and Outside Organizations for Property Use – Think Ahead!
by Reb Gregg & Catherine Hansen-Stamp
Organizations that own their own premises and facilities (“property”) often rent their property to outside organizations (or individuals)—in a variety of arrangements—in between their regular programming. These arrangements can be profitable for a premises owner, and great for the outside organization wanting to expand its programming or activities. Regardless of which side of the arrangement your organization is on, it is critical that you have thought through the details of the arrangement, including consideration, in a written contract, of the responsibilities—and liabilities—of each of the parties. The Wycoff case is a good example of the issues that arise following injury to an outside organization’s participant, during their use of another organization’s property. How do you handle these issues in your organization?
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Use of Volunteer Leaders—Are you asking for Help…or Trouble?
by Reb Gregg & Catherine Hansen-Stamp
A holding in a recent Tennessee case highlights the issues that programs can face if they utilize volunteer leaders or allow volunteers to assist in running their programs. Although the use of volunteers can reap obvious benefits for an organization (you are not paying wages!), the Jordan case is a strong reminder that programs should address these issues BEFORE they utilize volunteers.
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Does Your Release Cover the Activities You Expect it to Cover? Maybe Not
by Reb Gregg & Catherine Hansen-Stamp
In a recent case, a California appellate court refused to enforce a release because it did not properly describe the activity from which the wrongful death action arose.
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Employee or Independent Contractor? The Difference Really Matters!
by Reb Gregg & Catherine Hansen-Stamp
Organizations must make choices between how to characterize an individual they engage for work. Is the individual an employee or independent contractor? As you’ll see in this Connecticut case, the issue can dictate an organization’s liability for harm to injured participants. Tax consequences, exposure to worker injuries and penalties are other issues that can befall an unenlightened employer. Take heed!
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Duty to Supervise or Assumption of Risks? New York Courts’ Search for a Middle Ground
by Reb Gregg & Catherine Hansen-Stamp
Should a school or other organization’s responsibility to supervise a minor child trump a child’s legal capacity to assume inherent risks? Should it matter whether the activity at issue involves horseplay or what the court considers a “socially valuable” athletic or recreational activity? A New York Court struggles with efforts to preserve what they consider a duty to supervise in light of legitimate assumption of risk principles. What is your take?
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Climbing Wall Employee and Client Agree to Break the Rules — and a Court Upholds the Release
by Reb Gregg & Catherine Hansen-Stamp
A Club climbing wall employee and client arrange a “side deal” and ignore the Club’s posted rules regarding use of the wall. Following the client’s injury, who is responsible?
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Underage Minor Suffers Injury after Misrepresenting Age to Gain Access – Who Is Responsible?
by Reb Gregg & Catherine Hansen-Stamp
An underage teenager signs an adult release form to access a motocross race and suffers catastrophic injuries. If a participant misrepresents his minority status or forges a parent’s signature in order to participate, and is subsequently injured, how should responsibility be allocated between the service provider and the minor? Clearly the injury would not have occurred but for the minor being allowed to participate so who is responsible for his injuries? Could you have someone misrepresent themselves on one of your programs?
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Negligence as an Inherent Risk? What’s Going on Here?
by Reb Gregg & Catherine Hansen-Stamp
This Ohio case holds that negligence is an inherent risk of sporting activities—in this case cheerleading—and, as a result, dismissed an injured cheerleader’s negligence claim against the University. What is the law in your jurisdiction?
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Arbitration Clause in Release – “Unconscionable and Unenforceable” says a California Court
by Reb Gregg & Catherine Hansen-Stamp
A California Court strikes down a binding arbitration clause in a release agreement used by an expedition adventure company on the grounds it was “permeated” with unconscionability.
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Court Finds Americans with Disabilities Act Discrimination…Is Your Organization Prepared?
by Reb Gregg & Catherine Hansen-Stamp
A New York court rules that a HIV positive 10-year-old boy was discriminated against, on the basis of his disability, when a camp denied him access to a one-week basketball camp. Whether or not you agree with the Court’s decision, where is your organization in its preparation to consider accommodations for those with disabilities?
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Releases of Liability–Lessons Learned
by Reb Gregg & Catherine Hansen-Stamp
Are You Sure Your Releases Include YOU? A New Hampshire Court ruling denying Dartmouth protection under a release of liability, emphasizes the value in crafting these documents to clearly reflect their intended scope and purpose. In September the New Hampshire Federal District Court made significant rulings relating to the scope of a release—which raise some troubling issues, arising out of some unique and troubling facts. The Court’s holding underlines the importance of a service provider acting proactively in considering the use of these types of documents in its operation.
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Harness Misuse — Who’s to Blame?
by Reb Gregg & Catherine Hansen-Stamp
This Ohio case provides an excellent example of the finger pointing that can occur between a service provider and a manufacturer, when the alleged misuse of a product causes serious injury or death. The case teaches the value of a service provider addressing, proactively, the risks associated with participants’ use of equipment—particularly when the equipment is fundamental to the success of the activity—and to the well-being of the participant!
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Are you offering a Product or a Service? It Makes a BIG Difference
by Reb Gregg & Catherine Hansen-Stamp
Do you provide equipment for people to participate in your programs? Do you hold used or new gear sales for the general public? Do you rent gear in your gear shop to folks in the community? Do you sell new or used gear to participants in conjunction with the provision of services or otherwise? If so you need to read this case. Almost all recreational or adventure activities involve the use of a product. In many cases, the product is used in a challenging environment, under challenging conditions (climbing harness, raft, avalanche beacon, skis, helmets, crampons, etc.). You may think that because you are not a product manufacturer, you do not have to worry about “products liability.” However, if your organization provides, rents or sells products for use by participants in your program you will be interested in this month’s case at the Adventure & Recreation Law Center. The issue is whether, in offering your program or activity, you are sufficiently in the chain of distribution of a product (as opposed to merely providing a service) to expose your organization to a suit for strict products liability, with all its dangerous ramifications.]
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Releases and Contract Law – the Nuts and Bolts Really Matter
by Reb Gregg & Catherine Hansen-Stamp
The Wyoming Supreme Court reminds us that documents containing a release of liability are contracts and must be supported by legal consideration to be valid. Read this case to learn if your release of liability is at risk.
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Electronic Releases of Liability–What’s the Scoop?
by Reb Gregg & Catherine Hansen-Stamp
In the first we’ve seen on this issue in the U.S., a Minnesota court rules on the enforceability of a release of liability signed electronically. Surprisingly, the Court dismisses a claim brought against a Baseball Camp for injuries suffered by a Camp participant, despite the fact that the electronic release form couldn’t be found! Don’t let this ruling fool you—critical legal doctrines apply when converting to use of electronic release forms.
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Parents Can’t Sign pre-injury Releases for Their Children? Who Thought They Could?
by Reb Gregg & Catherine Hansen-Stamp
The Florida Supreme Court rules that a parent cannot sign a pre-injury release on behalf of a child. Why the surprise and alarm? Only a few states allow such releases, but this ruling has caused real concern in a state whose economy depends significantly on recreation and amusement programs for children and their families.
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Is there a Duty to Respond to Medical Emergencies—or Not?
by Reb Gregg & Catherine Hansen-Stamp
Recreation and education programs in our industry generally have a legal duty to protect their clients and students from unreasonable risks of harm. What does that duty require of a program faced with a medical emergency, and does that duty expand or contract as the activity becomes more remote?
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Insurance—Are You Really Covered?
by Reb Gregg & Catherine Hansen-Stamp
Recreation and adventure education providers are often reluctant to review their insurance coverage—and even hesitant to contact their insurance representatives to inform them of new activities, for fear their premiums will go up. But being inattentive to your organization’s insurance plan can be a dangerous approach. The Nautilus case, out of Missouri, demonstrates what can happen when an organization puts coverage on the back burner, or simply doesn’t take the time to determine if appropriate coverage is in place.
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Can Parents Sign Releases for Minors – The State Says “No”
by Reb Gregg & Catherine Hansen-Stamp
This Appeals Court opinion addresses a claim arising from an injury suffered at a child’s birthday party. The Woodman case provides an excellent survey of the laws of various states regarding a parent’s right to sign a pre-injury waiver on behalf of a child.
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Release of Liability for Negligence – A Trend Away from Enforceability
by Reb Gregg & Catherine Hansen-Stamp
Recreation and adventure education providers are often reluctant to review their insurance coverage–and even hesitant to contact their insurance representatives to inform them of new activities, for fear their premiums will go up. But being inattentive to your organization’s insurance plan can be a dangerous approach. The Nautilus case, out of Missouri, demonstrates what can happen when an organization puts coverage on the back burner, or simply doesn’t take the time to determine if appropriate coverage is in place.
