Effects of the West Virginia Nonprofit Adventure and Recreational Activity Responsibility Act §20-16-1 upon Liability Waivers

 

By Doyice Cotten

6496355073_b7d4e5d358_mThe purpose of this post is to take a close look at the West Virginia Statute §20-16-1 to 8, Nonprofit Adventure and Recreational Activity Responsibility Act. This type of act, in the past, has been referred to as a Sport Safety Act, but is more accurately described as a Shared Responsibility Statute. Such acts generally seek to provide some liability protections for specified sport providers and define legal responsibility for parties involved. They usually list duties of the provider, participant duties, provisions that preclude recovery, and some limited immunity for the provider.

These statutes often affect the enforceability of liability waivers as they relate to participants in the specific sport to which the statute applies. Language in the statute sometimes states that activity providers are held to the standard of ordinary care – and thereby forbid the enforcement of liability waivers that protect the provider from liability for ordinary negligence. Other times, the language specifies that the provider is liable if the injury resulted from a failure of the provider to perform the provider duties set forth in the statute. Liability waivers cannot generally override statutory duties.

This West Virginia statute defines its purpose as follows:

Because it is recognized that there are inherent risks in various adventure and recreational activities which should be understood by participants therein and which are essentially impossible for the organizations and their providers to eliminate, it is the purpose of this article to define those areas of responsibility and those affirmative acts for which these nonprofit organizations and their providers of adventure and recreational activities shall be liable for loss, damage or injury suffered by participants, and to further define those risks which the participants expressly assume and for which there can be no recovery. [Emphasis added.]

Organization Liability
The statute defines the liability of a nonprofit youth organization or provider in §20-16-6 as follows:

A nonprofit youth organization or provider shall be liable for injury, loss or damage caused by failure to follow the duties set forth in section four of this article where the violation of duty is causally related to the injury, loss or damage suffered. [Emphasis added.]

The section goes on to state that a nonprofit youth organization or provider shall not be liable for any loss caused by the negligence of persons who are not agents or employees of the nonprofit youth organization or provider. (It should be noted here that “employee” was defined in the statute as “an officer, agent, employee, servant, or volunteer, whether compensated or not, whether full time or not, who is authorized to act and is acting within the scope of his or her employment or duties with the nonprofit youth organization or provider.”) Section §20-16-6 further provides that the nonprofit youth organization or provider shall be liable for acts or omissions which constitute gross negligence, willful and wanton conduct, or intentional injury; it also institutes a liability insurance requirement.

Duties of the Provider
The statute specifies in section §20-16-4 the duties of a nonprofit youth organization or provider. It requires that the nonprofit youth organization or provider:

1) Make reasonable efforts to determine the participant’s ability to safely engage in the activity.
2) Inform the participant of any dangerous traits, characteristics, physical impairments, or conditions related to the adventure or recreational activity of which the nonprofit youth organization or provider knows or should know.
3) Inform the participant, by written warnings or conspicuous warning signs of any dangerous condition as to land or facilities under control of the nonprofit youth organization or provider of which the nonprofit youth organization or provider knows or should know.
4) See that each participant has or is provided all equipment reasonably necessary for the activity (and for provided equipment, make prudent efforts to inspect to see that equipment functions properly and is safe for use).
5) Prepare for the inspection and signature of each participant a statement which clearly and concisely explains the liability limitations, restrictions and responsibilities set forth in this article (This said statement shall not contain nor have the effect of a waiver of the nonprofit youth organization or provider’s duties set forth in this section).[Emphasis added.]
6) Make reasonable efforts to provide supervision of participants while engaged in activities under this article.

The reader should note that the fifth prescribed duty prohibits the use of liability waivers to relieve the nonprofit youth organization or provider of these statutory duties.

What Are Adventure or Recreational Activities?
According to the statute (§20-16-3), Adventure or Recreational Activity means “any program or activity sponsored by a nonprofit youth organization and conducted by the organization or its provider that involves inherent risks, including, but not limited to:

(A) All-terrain vehicle activities and similar activities, including all activities within the ATV Responsibility Act in article fifteen of this chapter;
(B) Biking, mountain-biking and similar activities;
(C) Canopy activities, zip-lines and similar activities;
(D) Climbing and rapelling and similar activities in improved and natural areas, including climbing walls;
(E) Equestrian activities and similar activities, including all activities within the Equestrian Activities Responsibility Act in article four of this chapter;
(F) Firearms training and similar activities;
(G) Hiking, backpacking, camping and similar activities;
(H) Paintball and similar activities;
(I) Rope initiatives, cope and confidence courses, challenge courses, slacklines, challenge courses and similar activities;
(J) Skating, including ice skating, rollerblading, and similar activities;
(K) Snow activities, including snowshoeing, snow skiing, sledding, snowmobiling, and similar activities, including all activities within the Skiing Responsibility Act in article three-A of this chapter;
(L) Spelunking, caving, and similar activities;
(M) Water sports, including swimming, diving, canoeing, kayaking, boating, sailing, scuba diving, water skiing, and similar activities, including all activities within the Whitewater Responsibility Act in article three-b of this chapter;
(N) Windsurfing and similar activities.

This is certainly a broad, and almost unlimited, list of activities to which this statute applies.
Two more definitions that are pertinent, in that they raise a number of questions, are the definitions of “Nonprofit Youth Organization” and “Provider.” The statute defines “Nonprofit Youth Organization” as:

“Nonprofit youth organization” means any nonprofit organization, including any subsidiary, affiliate or other related entity within its corporate or other business structure, that has been chartered by the United States Congress to train young people to do things for themselves and others, and that has established an area of at least six thousand contiguous acres within West Virginia in which to provide adventure or recreational activities for these young people and others.[Emphasis added.]

It goes on to define “Provider” as:

“Provider” means any individual, sole proprietorship, partnership, association, public or private corporation, the United States or any federal agency, this state or any political subdivision of this state, and any other legal entity which engages, with or without compensation, in organizing, promoting, presenting or providing or assisting in providing an adventure or recreational activity sponsored by a nonprofit youth organization, including one that allows the nonprofit youth organization the use of its land for the adventure or recreational activity.

Scope of the Statute Summary
There seems to be some question as to whether this statute passed in 2010 is meant to apply to all qualifying nonprofit youth organizations or was written to apply specifically to the Boy Scouts of America high adventure base opened in the same year. One might conclude that it was meant for the BSA high adventure base since the statute added the qualifier, “. . . and that has established an area of at least six thousand contiguous acres within West Virginia in which to provide adventure or recreational activities for these young people and others.”[Emphasis added.]

However, two points seem to argue against this interpretation. First, the statute specifies “any nonprofit organization, including any subsidiary, affiliate or other related entity within its corporate or other business structure, that has been chartered by the United States Congress to train young people to do things for themselves and others. . .” Nowhere does the statute mention Boy Scouts of America. [Emphasis added.]

Second, in the definition of “Provider,” the statute provides that

. . . and any other legal entity which engages, with or without compensation, in organizing, promoting, presenting or providing or assisting in providing an adventure or recreational activity sponsored by a nonprofit youth organization, including one that allows the nonprofit youth organization the use of its land for the adventure or recreational activity. [Emphasis added.]

This would suggest that the statute would apply to any nonprofit youth organization — even one that has teamed with a provider with sufficient land to qualify.
Whether this statute applies to scouting leaders who bring their troop to some sort of jamboree would be covered by the statute has been asked. The statute is not totally clear on this, but the statutes applies to “employees” which is defined in the statute as “an officer, agent, employee, servant, or volunteer, whether compensated or not, whether full time or not, who is authorized to act and is acting within the scope of his or her employment or duties with the nonprofit youth organization or provider.”

Liability Waiver Summary
The statute clearly prohibits the enforcement of liability waivers for gross negligence, willful and wanton actions, and intentional injury. Likewise, it prohibits liability waivers from protecting against failure to adhere to the six specified duties of the nonprofit youth organization or provider. A violation of a statutory duty would be considered negligence.
What is not so clear is how the statute affects an act that would ordinarily be considered ordinary negligence, but was not prohibited by the six specified duties. For instance, suppose a participant is injured on an ATM guided tour in which the guide negligently led the group on a trail at an unsafe speed. If the unsafe speed was the cause of the accident, this act might well be considered negligence; but would a waiver of such negligence be prohibited by the statute? That question illustrates one of the drawbacks in statutes that specifically define duties of the operator; it is near impossible to list all possible duties.

Author’s Note: Anyone having a different interpretation or having more information on this subject is welcome to contact me. I would be happy to print other ideas on the topic.

Photo Credit: Thanks to O. Paulson for the photo of the W.VA. State Capital.

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