Idaho Businesses are Stingy: at least with the new Outfitter billPosted: February 20, 2023 Filed under: Activity / Sport / Recreation, Idaho | Tags: Bill, Guide, Idaho, Inhernet Risk, Legislature, Outfitter, Outfitter and Guide, statute Leave a comment
There is a new law that is trying to get passed in Idaho. The law wants outfitters to be able to use a release. Idaho law currently allows a release to be used to block a lawsuit. See
Plaintiff raised argument in work/team building situation that they were forced to sign release. release. The state is not a stalwart of release law but the few cases, I’ve read support the release.
The bill wants to make the use of a release ONLY for outfitters and guides a law, not just judicial decision. Here is the statute as of 3/16/21.
6-1206. LIABILITY OF OUTFITTERS AND GUIDES. (1) No outfitter or guide licensed under the provisions of chapter 21, title 36, Idaho Code, and acting in the course of his employment shall be liable to a participant for damages or injuries to such participant unless such damage or injury was directly or proximately caused by failure of the outfitter or guide to comply with the duties placed on him by the negligent, reckless, or intentional conduct of the outfitter or guide.
An outfitter or guide has no duty to eliminate, alter, control, or lessen the risks inherent with recreational activities provided by outfitters and guides. A participant who takes part in a recreational activity provided by outfitters and guides assumes all risks inherent in that activity.
Any person may, by express written consent, prospectively waive negligence claims against licensed outfitters and guides. It is the policy of this state that such written liability waivers are enforceable to the same degree as similar waivers for other activities.
Click on the Link Above and Click On Bill Text to see the latest version. Be careful it is written in legislative legalese, which I have cleaned up above.
I’m not sure what prompted this bill. However, there are several issues with it.
You cannot sue for the inherent risks of an activity. The issue in a case like this is was the risk that caused the injury inherent or man-made. This bill does nothing to clarify what an inherent risk is so that is not going to change anything. Plaintiffs are still going to sue; they are just going to argue the outfitter changed the risk or created the risk, and it was not inherent.
If you want to protect yourself from that “what is inherent” lawsuit you need to define them in the statute. There seems to be a reluctance to do this because even the Idaho Ski Safety Act does not define the inherent risks. See Idaho Ski Safety Act.
Most other ski safety acts do. See the Colorado Ski Safety Act which identifies inherent risks in 33-44-103. Definitions. (3.5)
(3.5) “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term “inherent dangers and risks of skiing” does not include the negligence of a ski area operator as set forth in section 33-44-104 (2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.
Avalanches were added to that list by the Colorado Supreme Court in Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.
As such, a skier and skier’s attorney quickly know if they have a case or not. Versus in Idaho where you have to sue to have the judge decided if the risk that caused your injury on the slopes or by an outfitter were inherent. That costs money.
Part of the act outlines how a plaintiff can sue the outfitter or guide. By the “negligent, reckless, or intentional conduct” of the outfitter or guide. Never tell the opposition how to sue you. Besides in this case they already know. That part of the act does not change anything. That is the law in Idaho and every other state.
Consequently, the bill is pretty weak or better has no real value.
On top of that the bill is very narrow. Outfitters and Guides licensed by the state are not the only groups that can be sued because of the risks of an activity. I would think they would gather more support if the included other groups such as:
Youth Groups Youth Camps Sports Activities Coaches Volunteer Youth Leaders
Recreational Activities such as Indoor Climbing Walls, Trampoline parks, etc.
Little League and Youth Football programs alone would bring a lot of additional support.
To get a bill to pass, in most state legislatures, you have to give the legislators a reason not to vote against the bill. Having the outfitters and guides contacting their legislators is probably a small group of legislators since the areas the outfitters and guides are based is pretty sparse.
Having little league coaches in Boise, Moscow and other suburban areas would add a lot of voices in support.
Good luck on passing the bill; however, I think a lot of time; money and energy will be invested with little or no return.
For more about “inherent risks” see:
2015 SLRA – Inherent Risk: Should the Phrase be in your Release?
A season pass release for a Pennsylvania ski are was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk.
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