Does your outdoor recreation brochure have a disclaimer or warn your guest of possible risks?

Do you need to tell your guests they could be hurt, and you are not responsible?

I was walking around in a tourist town on Maui, HI the other day and spotted several brochure racks advertising all sorts of outdoor recreation activities. (Warning, reach for brochures at your own risk; they are guarded by timeshare sales people. “Aloha, where are you from?” in the local language means “I have a time share to sell means,”) I grabbed one out of curiosity and then started looking through all of them. None of them say anything about the risk of the activity. The fact you could be injured or that the business was not responsible was nowhere on any of the brochures.

Try explaining to a timeshare salesman that you want to look at the brochures and not book a trip and not buy a timeshare. Then explain why you are looking at the brochures.  That was very effective in stopping the “pitch.”  I guess the liability warning on brochure talk I can give is effective against time share sellers.

So?

I always think that when you walk into a courtroom, you should be able to say to the jury, they knew before they signed up (paid their money) they could get hurt.  Although not a defense, the statement “I never knew I could get hurt” strikes a chord with juries.

A brochure with a warning on this defeats that argument. So does your website.

On top of that, is there a moral or ethical obligation to let someone know, that there is some risk in your sport, every sport. The smiling faces on the brochures (main where the same faces, by the way) were for marketing. You want people to have fun, but if someone does not….

Am I wrong? Is it OK when reaching for the dollar or the credit card of your guest to allow your brochure to do all the talking? What if you tell them of the risk after they have paid? Is that “fair.”

How is that going to be viewed by the jury? If I were representing the plaintiff, I would project a picture of the plaintiff in the hospital next to the picture on the brochure on the wall.  I would ask the jury what is missing in that picture compared to what occurred to my client.

In the hospital, my client does not look beautiful or happy.

What do you think? Leave a comment.

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By Recreation Law    Rec-law@recreation-law.com      James H. Moss         #Authorrank

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