Legal, Risk Management & Insurance Issues facing the Outdoor Recreation Industry as, I see it.

As the industry grows and matures, it is attracting litigation. Additionally, the industry is marketing and attracting more people with no real knowledge of the risk and as such are more willing to sue.

The Outdoor Recreation Industry is facing a lot of new as well as the same-old problems they have in the past. Two components are creating the problems. Most of the industry does not have trade associations looking out after their member’s interests, and the industry keeps shooting itself in the foot.

Overall, here are the big issues I see the industry facing in 2018.

1. There has been a substantial increase in the number of lawsuits in the industry. I used to find 20 new lawsuits a year and had another 250 stretching back into the 1930’s I could write about. I figured I could write for about ten years and cover 90% of the issues. Now I’m finding 250 a year. I’m never going to run out of lawsuits to review and write about.
   
   1. That increase seems to be proportionally to the activities that advertise their sports, especially those that advertise to families or groups.
      
      1. Zip Lines
         
      2. Ropes or Challenge Courses (These first two items have their industry associations working harder to promote litigation against them, still, then to stop it.)
         
      3. Skiing (but mostly skier v. skier collision cases) If you can’t sue the ski area, sue your friend you were skiing with or someone you never met.
         
   2. There are some industries where the number of lawsuits is dropping.
      
      1. Skiing. There are fewer lawsuits against ski areas, there are more lawsuits between participants at ski areas.
         
      2. Whitewater rafting, seems to have fewer lawsuits, although that is also probably to a maturing of the sport, there are less people getting injured.
         
2. The Plaintiff’s are getting more sophisticated and working harder at attacking releases. Prior to 2010 occasionally, you would see plaintiff’s attempting to have the release thrown out of the litigation. Now days you see every lawsuit attacking the release and a few of them winning. Enough plaintiffs are winning that it is encouraging other plaintiffs to sue and try to void the release they signed.
   
3. We still have a large contingent of people attempting to try to make it harder to sue. However, this ultimately making it easy to win a lawsuit against the industry. It’s like building a terrific trench system during WWI. The trench worked perfectly unless you were overran and then your perfect trench becomes the best defense to your arguments or attacks.
   
4. There are more product liability lawsuits, and more lawsuits based on the failure to properly understand or use a harness. Most of these are occurring in the climbing wall industry, a few in the ropes’ course industry.
   
5. Individual sports are having no lawsuits still. However, that will soon change. As a recreational area grows in popularity a trade association or organization believing they can get good PR or increase their membership is creating standards, classes and ways to sue that never existed before. Soon you will have a way to sue a belayer while climbing on a wall or on the rock because a standard was created. The standard is the duty, that if violated by the belayer makes the belayer liable.
   
6. California Proposition 65 is going to make life miserable for manufacturers.
   
7. None of the trade associations are working to help the industry learn and stay away from litigation. No one announced the changes to California Proposition 65. However, that could cost companies in the recreation industry millions if not more. Threatening letters have already started to arrive in manufacturer’s mail boxes demanding money because the manufacturer did not follow or even know the rules.
   

This is not a complete list, but it is a lot. I’ll expand on some of these ideas through the year.

Hopefully, I’m wrong.

What do you think? Leave a comment.

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

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