by Emily Krisher
Assumption of risk, when employed strategically, can work as a complete defense to liabilities, big and small. It is a legal concept which comes in many varieties, and the version most relevant to tour operators has been dubbed “inherent peril assumption of risk” by Washington courts. Inherent peril assumption bars claims resulting from particular known risks which have been assumed by a customer separately from any negligence by a tour operator. Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 497 (1992). In Washington, when a customer decides to undertake a dangerous activity – such as skiing (id.), scuba diving (Boyce v. West, 71 Wn. App. 657 (1993), or river rafting (Pellham v. Let’s Go Tubing, 199 Wn. App. 399 (2017)) – and knows that the activity carries an inherent risk of injury, the responsibility for those risks lies with the customer. Scott, 119 Wn.2d at 500-01. Because these risks are natural and inherent, tour operators have no legal duty to protect customers from them. Id. at 498.
In order to use the inherent peril assumption of risk defense to avoid liability in a court case, tour operators must prove that the customer possessed full subjective understanding of the presence and nature of the risk, and voluntarily chose to engage in the risky activity anyway. Kirk v. Washington State University, 109 Wn.2d 448, 453 (1987). Under Washington law, these criteria are met when a customer reads and signs a waiver informing them of the general nature of the risk. Boyce, 71 Wn. App. at 657. In one case, Boyce, a mother sued a scuba diving program and its instructor after her college-aged son died in a diving accident. Id. Prior to beginning the diving program, the son had signed a waiver acknowledging the possibility of serious injury or death while diving and assuming all foreseen and unforeseen risks connected to the course. Id. When his mother alleged that the diving program had negligently taught and supervised her son, the court concluded that the son had assumed such risks, which were inherent in scuba diving courses, when he signed the waiver. Id. Even if a risk, in this case instructor negligence, has not been specifically mentioned in a waiver, consent to a particular risk is not necessary when a participant signs a waiver assuming all risks. Id. Therefore, when preparing an Assumption of Risk form for clients to sign, under Washington law tour providers do not need to list every possible risk; simple language consenting to “all risks” may be enough to defend against claims associated with participation in a given activity. Id. at 667.
That said, inherent peril assumption of risk is not a “Get Out of Jail Free” card for tour operators. Even if participants sign comprehensive waivers, a tour operator can still be found liable for risks which they create or exacerbate. Gleason v. Cohen, 192 Wn. App. 788, 798 (2016). In another case, Gleason, an amateur but experienced logger, had agreed to cut down trees on Cohen’s property in exchange for keeping the lumber to sell as firewood. Id. at 792. Gleason expressed concern about one of the trees Cohen asked him to log, complaining that the choker had not been set up properly and that the tree was too close to structures on the property, but eventually agreed to cut the tree down anyway. Id. When he did so, the tree fell on him and severely injured him, and he sued Cohen for negligently placing the choker and asking him to cut the tree down unsafely. Id. at 800. The court in that case noted that while logging was the type of dangerous activity covered by inherent peril assumption of risk, and while Gleason was aware of the additional risk and agreed to accept it, Cohen was still partially liable because his improper setting of the choker created dangerous conditions above and beyond those found in logging ordinarily. Id. at 801.
A similar result was reached in Brown v. Stevens Pass, Inc., 97 Wn. App. 519 (1999), in which a skier was injured in a collision with a concrete fence post that had been covered by heavy snow. Id. at 526-27. As in Gleason, the skier was deemed to have assumed the inherent risks of participating in a dangerous activity (here, because he had signed a comprehensive waiver at the defendant’s ski resort). However, the court determined that the ski resort was partially liable because it had created an additional risk by designing the fence posts such that they posed an additional – and hidden – risk to visitors. Id. at 526.
The Brown and Gleason cases demonstrate the limits of the “inherent peril assumption of risk” theory. Having customers give their informed consent to a waiver of liability can protect tour operators from a finding of liability on the basis of risks inherent in the operator’s dangerous activities. But if a tour operator’s negligent actions introduce additional hazards to the activity – whether these hazards are known to the participant (Gleason) or not (Brown) – the operator may be found partially liable for any injuries the plaintiff suffers as a result of those hazards.
Adventure and outdoor tour operators are wise to take the following two key steps to help protect their companies from liability. First, operators should prepare a comprehensive liability waiver which informs customers of the risks they can reasonably expect from a given dangerous activity. This document usually includes multiple risk shifting mechanisms, including an Assumption of Risk. Second, operators should ensure that their actions do not increase the risk of dangerous activities beyond what is already expected: areas in which dangerous activities are conducted should be kept free of artificial hazards, equipment should be maintained and used as set forth in the instructions, and the activities themselves should be conducted in accordance with industry safety standards. These are just some of the tools we use to help tour operators manage and minimize risk.