Pelland Blog

Liability Releases: Better Safe than Sorry

January 25th, 2019

Liability can take many forms, and it is important for every business to take reasonable precautions to protect its interests in the event of either physical or emotional injury claims on the part of guests. Injuries of either type may often lead to claims for compensation and damages, even when the injuries are the result of reckless behavior on the part of a guest or the failure to follow posted rules and regulations. Businesses with greater inherent risks of injury must take greater precautions to protect themselves from the threat of lawsuits.

Campgrounds with greater inherent risks might include parks with ziplines, shooting ranges, river rafting, paintball fields, mountain biking, mechanical bulls, and climbing walls; however, every park has liabilities, and there are probably more personal injury attorneys within a 50-mile radius of your park than there are churches, schools, and hospitals combined.

Many campgrounds utilize blanket release forms known as crowd releases. Crowd release forms are generalized notifications that your guests are surrendering their reasonable rights to sue pursuant to their use and enjoyment of your park and its facilities, and they typically apply to the taking of photographs or videos. A crowd release will warn people that photography and filming may be ongoing at any time, that the images may be used in any and all media, in perpetuity, and that the guest consents to the use of his or her image without compensation by nature of entry; however, crowd releases rarely cross the line and attempt to cover the issues of physical liability. Crowd release forms also constitute rather weak defenses in a court of law.

If your park offers recreational amenities or activities with greater inherent risk, you will want to incorporate some very specifically detailed liability releases. There is no question that risky activities offer a great deal of appeal, particularly among younger guests, and can go a long way toward expanding a park’s customer base; however, it is necessary for your business to take reasonable measures to ensure the safety of its guests and to take measures to protect itself against lawsuits that may result if injuries are inflicted during the pursuit of those activities. Needless to say, the incorporation of these precautions should go hand-in-hand with the purchase of suitable liability insurance.

Downhill skiing and snowboarding are activities where participants assume a degree of risk. For years, the National Ski Areas Association has promoted a Responsibility Code that has attempted to shift responsibility for injuries upon skiers and snowboarders, not the ski area operators. The code advised users to ski in control, be able to stop at all times, avoid those downhill, yield to those uphill, not stop where they would obstruct a trail, utilize retention devices, observe signage, keep off closed terrain, and know in advance how to use lifts.

The Responsibility Code was a start, but the extensive text printed on the backs of most lift tickets these days is now designated as a “Ski Ticket Contract and Express Assumption of Risk”. The following text is typical and taken from the back of a recently issued lift ticket: “I accept and understand that skiing, snowboarding, and other forms of winter mountain sports are hazardous, with many inherent risks and resulting injuries or death. By my purchase and use of this ticket, I freely and willingly accept and voluntarily assume all risk of property damage, personal injury or death which results from my participation in winter sports activities and the inherent risks of such activities as they are defined herein.” This statement is followed by an extensive paragraph that itemizes those inherent risks, both natural and man-made.

One might think that this broad wording would release the business operator from almost all liability; however, the ski industry takes added measures to reduce the risks of injury, including the use of ski patrollers to open and close trails during the course of the day, sweep trails at the end of the day, and evacuate injured skiers from the slopes. Grooming, signage, the increased use of helmets, and improvements in the safety of equipment also help to reduce the likelihood of injuries. Despite all of these efforts to reduce liability, enforceability is never ironclad. In December 2014, the Oregon Supreme Court ruled that a season pass waiver was unenforceable, opening the way to a $21.5 million personal injury lawsuit, and this ruling has since been used to chip away at the overall validity of waivers and releases.

Bearing in mind the potential legal issues of enforceability, parks that provide higher risk amenities should follow the lead of not only the ski industry but also the amusement park industry, which routinely enforces height, weight and age restrictions, along with providing a long list of health conditions that should preclude participation. Those conditions typically include, but are not limited to, pulmonary problems, high blood pressure, cardiac disease, pregnancy, obesity, seizures, prior injuries, fear of heights, and psychological or psychiatric problems. Yes, that list covers just about everything. Health issues require a separate signed waiver.

When I enjoyed the use of a high ropes and zipline course recently, I signed both a written liability release and a health waiver. I was provided with copies of each, I was provided assistance in properly suiting up for the activity, and I was provided with basic instruction in the use of the equipment. In another recent outing, I visited a resort that operates mountain biking trails and a mountain coaster. At this facility, guests are directed to a row of computer kiosks where liability releases and health waivers are digitally signed before tickets may be purchased.

There are a number of companies that provide reasonably priced digital release services that work with either computer kiosks or mobile apps. These services save time, avoid the generation of a mountain of paperwork, are secure, offer cloud storage, provide analytical information, and can even integrate with email marketing programs as a means of generating return visits. Some services even allow seasonal businesses to adjust their subscription services between their peak season and off season. A few of the companies that you may want to look into include:

Whether your park uses crowd releases, liability releases, health waivers, or a combination of all three, it is important to make every effort to protect its interests and to avoid the many catastrophic impacts of personal injury lawsuits.

This post was written by Peter Pelland

Photography Releases, Rights Management & Legal Issues

January 14th, 2010

An online version of a seminar which I presented back in 2008 at the 44th Annual Northeast Conference On Camping, in Springfield, Massachusetts has been frequently referenced on other blogs. In particular, there are many links to a sample model release / waiver form that I have made available. The following is an excerpt from that seminar that covers the topics of Releases, Rights Management, and Legal Issues involving photography of guests at a campground, resort, tourist attraction, theme park, ski area or other similar place of business. Bear in mind that I am not a lawyer and that none of the information presented herein should be considered to be legal advice.

We are living in a society that is obsessed with litigation. We are also living in a society where our rights to personal privacy are under constant attack. When it comes to advertising photography, my recommendation is that you do your best to protect both your interests and the rights of your guests. Never, under any circumstances, take a photograph of anybody without their advance knowledge or, in the instance of a once in a lifetime candid photo opportunity, by getting their express permission immediately afterward. Always remember that you are taking photographs, not snapshots.

Nobody plans a vacation at a campground (or anywhere else) with either the intention or expectation of becoming a model. On the other hand, over 99% of your guests will be thrilled to be a part of a photo shoot and will go out of their way to be cooperative. Nonetheless, it is important that you at least get people’s implied, if not their signed, consent. I am pleased to provide you with a model waiver template which you are free to use; however, it is important to presume that no waiver or release will ever hold up in court. The rights of the individual will always prevail. The primary purpose of a release is to weed out potential problems from that one person in a thousand who would like to get rich quick and own your business, with the help of his attorney brother-in-law.

If a release is so powerless, when and why should it be used? In a public setting, where nobody is being held up to ridicule, I have always followed two rules:

  1. If there are fewer than 7 people in a photo, get them each to sign a release.

  2. If there are more than 7 people in a photo, but anybody is prominently featured in the center or foreground, get signed releases.

A third rule might be to always get signed releases for any children whom you photograph, remembering that only a parent of a minor has the legal authority to act in this manner.

If you take a photograph and a person balks about signing the release, refuses to sign the release, jokes about compensation or a lawsuit, or the subject is a minor who is not accompanied by a parent, make a note to not only not use the photo but to destroy the photo in order to prevent it from ever being used unintentionally or without your knowledge (but, as the photographer, with your ultimate responsibility). Should you hire a photographer to take photos on your behalf, you will share any liability which results from that photographer’s failure to exercise due diligence in obtaining a release.

Some resorts incorporate a blanket release into their registration agreement; however, these are much less likely to hold water in court than a signed release (which is already as water-tight as a colander) and are perhaps little better than no release at all.

Again, if you are hiring a photographer, you should be aware of precisely what it is that you are purchasing. As with stock photography, you need to know what rights are being conveyed. Just as certainly as stock photography will always require payment of a fee, no reputable photographer will ever perform what is legally defined as “work for hire”. You will not be purchasing the actual photographs (which is essentially virtual property anyway now that almost all photography is digital) but the rights to use those photographs. If there are any restrictions on their use, aside from actual ownership itself, be sure to get those limitations defined in advance.

Read the entire online seminar by clicking here.

This post was written by Peter Pelland