In The Vermont Senate

Why This is Important

In The Vermont House

AN ACT RELATING TO EXPRESS ASSUMPTION OF RISK
AND RELEASE FROM LIABILITY

H. 606
S. 284

 The Goals of H. 606 & S.284 .

• To offer a higher level of protection for Vermont’s recreation and sports service providers. H. 606 proposes to make releases legally binding for adults and for minors.
• To stabilize insurance rates for Vermont’s recreation providers by reducing the opportunity for frivolous lawsuits against Vermont’s recreation providers.
• To allow the public, including minor children, to have the maximum opportunity to participate in recreational, sporting, educational, and other activities where certain risks, including risk of personal injury or death, may exist.
• To encourage the availability of recreational, sporting, educational, and other activities with risks in this state by affording providers, including landowners and occupiers, instructors, and guides, with protection under the law where a participant in the activity has agreed to expressly assume its risks and release potential defendants from liability, including ordinary negligence.
• To be clear: "inherent risks" are not what we are seeking protection from. Vermont and most states have laws that protect against this type of lawsuit. People sue for negligence and not inherent risk.
• To secure jobs. Thousands of Vermonters are employed in our recreation industry. Their jobs are dependant on the policies of this State.

 Why do we need this legislation?

If you have ever faced a lawsuit because a participant in your recreation program was involved in an accident resulting in injury, you already know the cost and stress that is involved, win or lose. You have created a risk management program, made sure that your instructors are qualified, had each participant sign a release form and you are covered by insurance, so what could go wrong?

According to Sport Risk Consultant, Doyice J. Cotten, "The fact is, while not all waivers successfully protect the service provider, in at least 46 states and the District of Columbia, a well-written, properly administered waiver that is voluntarily signed by an adult can provide recreation, sport and fitness providers with liability protection for ordinary negligence."

"The validity of a waiver however, is determined by the law in each state and subsequently, the validity of waivers will vary depending upon the state. In states where there is no legislation to guide judges (such as Vermont) each case (frivolous or not) goes to court and the judgment can go either way."

The cost, the time invested and the stress of defending your business can overwhelm a recreation service provider. Many of these cases go on for years and most end in the insurance company settling out of court.

This results in higher rates for the insured and in some cases, loss of insurance. Because insurance if needed to access private and public land, you are out of business. No insurance, no access to land, no programs for the public.

Thousands of visitors, Vermonters and their children, could be deprived of the valuable opportunities afforded by recreational sports and organized sports. Loss of local revenues, connections with nature and health benefits are also the consequences.

To the critics that say this legislation is only for the benefit of the commercial operators, they are wrong!! This legislation is designed to protect the recreational opportunities of all of Vermont’s visitors, citizens and children.

Millions of dollars are being invested in the development of recreation trails and protection of public lands. Millions more are spent annually on promotion of our natural resources and recreation opportunities. Hundreds of organizations encourage people of all ages to get outside for good health and to connect with nature. Vermont has even protected landowners who allow folks to recreate on their land without charge by passing landowner liability legislation.

Releases for adults are already enforceable in some states where recreation is an important industry. Alaska now joins Ohio, Colorado, Massachusetts and California in allowing a parent to sign a release for their minor child. The same may be true in Florida, Idaho, Indiana, and Mississippi. Arizona allows a parent to sign away a minor’s right to sue for equine activities. We need release validity for ordinary negligence claims consistent with the laws of other states that enforce releases in recreational settings.

Recreation and sports professionals who provide leadership, skill development and outdoor educational services, invest heavily in gear and training, yet even with insurance and a good risk management plan, place themselves at risk from frivolous lawsuits. Meanwhile, nationwide, recreation injury litigation is on the increase and Vermont's recreation based businesses are at risk.

According to US Department of Labor stats, recreation/tourism and it’s various components is considered to be the third or fourth largest industry in the United states (however - when you consider that the United States has 6% of the world’s population and 51% of the world’s lawyers it isn’t surprising to know that litigation and claims made in the outdoor recreation business are on the rise). From 2003 Department of Justice stats: 5 of the 15 largest jury verdicts in 2003 involved recreation activities with verdicts ranging in size from 27 to 104 million dollars; in 2003 the United States experienced the world’s most expensive tort system, more than double that of all other industrialized nations in the world combined; and, over the past 50 years, annual tort costs in the United States have grown from less than 2 billion to a staggering $233 billion. This does not include cases that were settled out of court through the insurance claims process.

Northeastern states have among the highest number of lawsuits in the nation per capita and they also make up Vermont’s highest percentage of visitors.

There is no doubt that this industry is being hit hard with litigation and claims.

Especially in this current economy - in order to remain competitive in our jobs and in recreational experiences available to state residents and visitors, these trends must stop.

We have all seen in the last year the national economy crumble due at least in part to the federal governments’ unwillingness to regulate markets - state governments should learn from this mistake and be willing to institute some regulatory or codified requirements for those who wish to prosecute actions against Vermont businesses.

The result is that thousands of visitors, Vermonters and their children will be deprived of the valuable opportunities afforded by recreational sports and organized sports. Loss of local revenues, connections with nature and health benefits are also the results.

This year, VOGA has introduced legislation in both the House and the Senate with the intent of making recreation waivers legally binding.

Your support is needed to help these bills pass.

Thanks for your help.

Have fun and be safe out there,

Graydon Stevens
VOGA
gray@voga.org