An Effective Warning of Risk Technique
By Doyice Cotten
On a recent whitewater rafting trip, the rafting company (Carolina Outfitters) employed an interesting technique for rafting instruction and for warning clients of the inherent risks of rafting.
When the group of rafters was seated, the instructor asked for a volunteer to help him. He gave the volunteer a checklist which listed the instructions and warnings to be covered in the presentation and asked the volunteer to check off each instruction as it was covered. At the end, he asked the volunteer if he had missed any and one checklist item was named. The instructor explained that item and then asked the volunteer to sign the checklist and return it. Participants were then encouraged to ask questions.
Now, why is this important?
A major defense against liability is primary assumption of risk. Primary assumption of risk is a legal theory by which an injured participant may not recover for an injury received when the plaintiff voluntarily exposed himself or herself to a known and appreciated danger. The theory embodies the legal conclusion that the activity provider has no duty to protect the participant from inherent risks.
Courts have ruled that three elements must exist for a successful primary assumption of risk defense. They are: 1) the risk must be inherent to the sport; 2) the participant must voluntarily consent to being exposed to the risk; and 3) the participant must know, understand, and appreciate the inherent risks of the activity.
In the event an injury results from an inherent risk on the rafting trip, the company can supply the checklist, signed by the volunteer, to show that they warned of the risks and provided safety instruction. Obviously, this would have greater effect in court than simply having the instructor testify to what he had said.
The company also required a waiver to protect against liability for their negligence. The waiver seemed to be adequate to protect. However, the administration of the waiver left a little to be desired. The clerk simply handed out the waiver stating that it had to be signed before the fee was paid. No explanation of its import or purpose was given.
At the large Nantahala Outdoor Center, I observed another group getting instruction prior to rafting. I don’t know how it was handled, but did notice that there was a prominently posted sign which asked “Have We Covered?” and listed several item to be covered (see the photo). Items listed to be covered included:
How to sit in the raft
Paddling strokes and grip
Recovering a swimmer
Two whitewater swimming positions
I am sure they cover other topics as well. One item covered by the list that was not discussed by Carolina Outfitters is the waiver review.