Bill targets liability waivers for outdoor recreation

A bill introduced to the legislature is aimed at protecting outdoor recreation businesses in Montana from lawsuits.

Outdoor recreation sometimes can be a risky business. House Bill 204, introduced last week by Rep. Greg Hertz, R-Polson, would bring Montana in line with 47 other states that recognize pre-activity waivers and release forms as legally binding.

“This just reduces the risk to recreation providers for ordinary problems that occur in outdoor recreation,” Hertz said. “If you fall off your horse, or out of a raft, those are just ordinary things that people understand happen when you’re doing these types of activities.”

The bill would amend an existing law by explicitly allowing pre-activity waivers for injuries resulting from “ordinary negligence or for risks that are inherent in the sport or recreational opportunity.”

HB 204 would apply to a wide range of outdoor activities, from horseback riding, fishing, skiing and snowboarding to mountain climbing and whitewater rafting.

While many businesses already require customers to sign such waivers, Swan Mountain Outfitters owner Pat Tabor said a Montana Supreme Court ruling in 2005 prevented such documents from being used in court to limit a provider’s liability.

In response, Tabor organized a coalition of state recreation providers, business associations and nonprofits to push for a legislative fix.

“What this does is say that clients have certain responsibilities, and if you do something wrong you can’t sue us,” Tabor said.

Outdoor recreation providers still would not be protected from lawsuits involving gross negligence, he noted.

“That legal hurdle is just enough to keep our insurance costs down,” he said. “There’s about seven or eight nationwide underwriters that insure recreation providers and only three of those choose to do business in Montana.”

Darwin Stoneman, a coalition member and co-founder of Glacier Raft Co. in West Glacier, explained the effect Montana’s existing waiver laws have on insurance rates.

“Every time I talk to my insurance agent, he says, ‘You know, you’re one of the three states that this isn’t clearly a part of the law,’” Stoneman said. “Therefore, I’ve got to factor in a little additional cost.”

Stoneman said Glacier Raft Co., which has operated since 1976, is in good standing with his insurance company. But many new recreation providers face prohibitively high costs for liability insurance, creating a significant barrier for those trying to break into the industry.

“My feelings are it’s a needed piece of legislation to keep our businesses healthy in Montana and hopefully reduce our insurance rates,” Stoneman said.

Rep. Hertz said the bill, which was scheduled for a hearing in the House Judiciary Committee on Jan. 14, has already received positive feedback from Republicans and Democrats in the House.

“I’ve had comments from people on both sides of the aisle who support this and understand we’re only one of three states that don’t allow these types of waivers,” he said. “And so people realize we need to promote our tourism industry and our small businesses.”