# Ever heard of liability "waivers" for private rafting trips?



## downstreamflip (Feb 16, 2011)

I'm taking a bunch of friends out after work today to run the Poudre. Most of them I know well, but a couple of them, I don't (friends of friends). This got me thinking about my legal liability if anyone gets hurt. Even good friends can sue if things go badly. I'm a commercial raft guide, too, so even though they aren't paying me anything, I think I probably could be held liable. They all know I'm a guide, so they expect everything from me that a paying customer would expect in terms of expertise and safety. 

Any attorney/boaters who can help me understand my risk, here? I've never heard of a participant agreement for a private rafting trip, but maybe it would be a good idea. I know for sure I don't want to lose my house because someone got hurt on one of my private trips!


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## hojo (Jun 26, 2008)

downstreamflip said:


> I'm taking a bunch of friends out after work today to run the Poudre. Most of them I know well, but a couple of them, I don't (friends of friends). This got me thinking about my legal liability if anyone gets hurt. Even good friends can sue if things go badly. I'm a commercial raft guide, too, so even though they aren't paying me anything, I think I probably could be held liable. They all know I'm a guide, so they expect everything from me that a paying customer would expect in terms of expertise and safety.
> 
> Any attorney/boaters who can help me understand my risk, here? I've never heard of a participant agreement for a private rafting trip, but maybe it would be a good idea. I know for sure I don't want to lose my house because someone got hurt on one of my private trips!



Anyone can sue for anything. They would likely have to show that you accepted the responsibility for their safety by being their 'guide'. So, you must verbally opt out of that responsibility, "I'm here to boat 'with' you and share my knowledge about the river. The decision to paddle any given part of this run is *your responsibility*, and I will not suggest that you paddle any given rapid." If you don't communicate this then your friends and friends' friends could be under the impression your role is to 'guide' them down. If they get into trouble, they _could_ argue that your 'guidance' was negligent. If you're not guiding then you're not negligent for 'poor guidance'. And stick to that. Tell your friends that they need to watch the friends they bring and let people know where portage routes are. Then you'll only be liable for the ankle break they sustain! 

EDIT: if you're all in one raft and you're the rower then I have no idea how to avoid the general liability of being the driver, esp. if it's a paddle raft (rather than oar boat).


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## JC5123 (Mar 18, 2011)

I'm not a lawyer, and I can't speak for CO laws, but this may provide some helpful info. It deals with laws in place to protect people who are with novices engaging in high risk activities. 

http://www.law.suffolk.edu/highlights/stuorgs/lawreview/documents/Yerger.pdf


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## downstreamflip (Feb 16, 2011)

Thanks, JC. That legal note is an interesting read. 

Hojo, it will be a paddle trip in my own raft. These people aren't "river friends", so it'll be very difficult to convince anyone that I'm not their guide. I'll be sitting in the back telling them what to do the whole time.  I can definitely make it a group decision which run we chose, and I plan to give a full "paddle safety talk" beforehand. I'm trying to decide whether I want to spoil the mood with a participant agreement. I can probably find one online that I can carefully modify for my non-commercial purposes, but how geeky is that?


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## hojo (Jun 26, 2008)

If you're in charge of telling them when to paddle and when not to then I'd advise running through some drills to ascertain how well they'll be able to handle your direction. Then you can make an educated guess on what to run. edit( yes.. obvious.. i know)


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## scooby450 (Dec 4, 2008)

I am no longer a guide but I own my own boat and like to paddle raft. When I am doing an over-nighter and bring a guest and I row I have never thought about a release of liability form...until now and I will consider it. When ever I invite people to paddle raft with me I have them read and sign a release of liability. It ensures that they know that this sport has inherent risks and that they are responsible for themselves. My release form also includes a paragraph about no fees exchanging hands as that is: #1) against the law & #2) in my opinion bad form. 
The thing about it is that I feel these releases do not hold up in a court of law...just ask the commercial companies...but it is helpful and makes the boaters aware of risks..and it is written and understood by the participants.

This is simply my perspective. I am not a lawyer. This is just something I do.


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## Whoapiglet (Aug 23, 2010)

What if I loan a ducky out to some one? or a mini me? (Free of charge of course) 

It would be great to have a standard form as a sticky here that we could all use. Although it does suck that our litigious society has come to this.


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## Ryanrugger (Jun 7, 2005)

Just start kayaking and you won't have to worry about some loser suing you. Plus you'll feel more like a man while doing said activity. There-in, being happier on a daily basis, keeping all your possessions, and getting more respect. It's sad that we have to think about these things in today's litigation happy world, where no one will take responsibility for their own actions.


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## BarryDingle (Mar 13, 2008)

Any good lawyer should be able to tear through that "waiver"

If you asked me to sign a waiver on your boat then i'd probably laugh in your face...but thats just me.


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## JC5123 (Mar 18, 2011)

BarryDingle said:


> Any good lawyer should be able to tear through that "waiver"
> 
> If you asked me to sign a waiver on your boat then i'd probably laugh in your face...but thats just me.



I have heard this argument before, and I always ask the same question. If waivers have no legal legs, why then, does every Tom, Dick, and Harry make you sign one before doing anything that has any kind of risk to it? 

Also, you may laugh in my face, but you would be laughing on shore while the rest of us paddle away......Just sayin.


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## kclowe (May 25, 2004)

If it is a major concern, then just don't take people you don't know well. I'm always up for boating with new people, but I am never happy when I end up with a passenger that I don't know. As a matter of fact, I get a little annoyed when boating buddies ask me if I have room for extra passengers. You never know when something is going to happen and you have no idea how they will react. Gives me the willies!
I have people sign waivers when I'm taking out a CW trip, but I've never done it on a private trip. Not a bad idea, but again, I think I'll just not take people I don't know.
Good luck! Hope it works out.

Kim


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## earthNRG (Oct 24, 2003)

Do you have passengers in your car sign waivers?


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## BarryDingle (Mar 13, 2008)

You're right....your waiver that you wrote up and printed off your computer at home is gonna hold a ton of weight in court....


Actually,i probably wouldn't even acknowledge ya.....as i floated by...in one of my 3 rafts......with large breasted women passing me microbrews....laughing at your home-made waiver...just sayin


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## JC5123 (Mar 18, 2011)

earthNRG said:


> Do you have passengers in your car sign waivers?



Good point, but then again, I have insurance that covers passengers in my car, and no one is helping me to drive either. 

I apologize if my comments have come across on the dickish side. Not my intention. Only to ask the question and get people smarter than I am in such matters to think about the situation and weigh in.


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## skipowpow (Mar 1, 2011)

earthNRG said:


> Do you have passengers in your car sign waivers?


No, but most have insurance for said activity.

NOTHING protects you from being sued. It's just a matter of not losing in court.

Even if they are your best friend - if they were injured with you at the helm - their insurance company may sue you.

So like everything in life - do your best to not f*ck up.


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## earthNRG (Oct 24, 2003)

Yeah, good point about insurance. I suppose boat captains could take out a personal liability insurance policy if they are that concerned.


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## carvedog (May 11, 2005)

There is no waiver on negligence. Or someone to be liable for negligent behavior.
The best you can do ( commercially) is an 'Acknowledgement of Risk' form. 

To scooby if you are really doing a risk form, do yourself a favor and keep it that. I would not even broach the commercial aspect. Keep it simple: river rafting can be hazardous, flips, pins and broaches can and do happen. 
In commercial applications we had to prove that everyone knew there was risk involved. In a private one you can do the same thing verbally with less proof. Unless everyone you talked to perishes and then you would be battling the heirs. 

When I was headed to the MF this spring at nearly 7 feet on a trip that I mostly organized it did cross my mind. If any of the other 17 people had any doubts that we were embarking on a fairly serious endeavor, the safety talk put that to rest. 

If you are BUI and wrap and kill someone with an entanglement no form will protect you from criminal and civil charges and filings. Same as if you were DUI and killed someone. Sobering thoughts for sure.

Be safe. ( Not an attorney, but had to delve into liability with a former raft company owner )


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## blutzski (Mar 31, 2004)

The fact is, even if it is your good friend that gets hurt, he may have no say in the matter. His insurance company and their laywer decides who to sue to recoup costs. Of course he can decide to sue you as well. Just saying that you're not even safe from your friends and family anymore because of insurance.


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## TakemetotheRiver (Oct 4, 2007)

I always tell my passengers on private trips that I am not liable for them and anything they don't feel comfortable doing they should not do- it's their choice and their risk. Of course, I also don't take people I don't feel comfortable taking on any river.


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## mania (Oct 21, 2003)

scooby450 said:


> The thing about it is that I feel these releases do not hold up in a court of law...just ask the commercial companies


They actually do hold up in Colorado, same with the ski ticket. thanks in part to a man named Peter Rietz.

As far as your personal liability as long as you are not charging any money beyond shared costs, which would be illegal anyway, and aren't being deliberately negligent you are most likely good to go. You could draft up a waiver based on your former employers waiver and it might help if someone was a dick about falling out of your boat.

your best bet is to be poor or lower middle class and have no assets worth more than a quarter mil. most of us would qualify.


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## Andy H. (Oct 13, 2003)

mania said:


> your best bet is to be poor or lower middle class and have no assets worth more than a quarter mil. most of us would qualify.


I'm in.


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## Leland (Jan 25, 2004)

Waivers do frequently hold up in court as long as they contain certain components - I can't remember exactly what they are but something like notification and acknowledgment of risks and release of liability. Seems like there is one more but it eludes me right now.

However, if I was on a private trip I would be worried that some would see the fact that I handed out a waiver as a sign that I was responsible for the trip rather than an equal participant in a venture of friends. Personally, I would leave the waiver alone and keep it casual to avoid any implicit liability.

The best defense against potential lawsuits is not doing anything grossly negligent.

Leland


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## Riorider (Jul 20, 2011)

I am a lawyer (though not in CO), and a river runner. I take lots of people on trips (no written releases) That article isn't bad, for those who are interested in reading stuff like that. But here's the short course: 
There is nothing that you can do that will guarantee that you will never be sued - except for hiding in your room for the rest of your life. Although some people may believe otherwise, a written release certainly won't do the trick. But there are plenty of things that can reduce your chances of getting in trouble. First, understand that your best protection is taking reasonable precautions. Make sure that everyone is wearing PFDs. Keep a tidy boat without widowmakers. Give people a safety lecture and explain what may happen and what you should do if you (fall out of the boat/flip/broach/etc). Warnings, candid discussions and war stories can be useful. You already know how to do all of this. Believe it or not, the law isn't (entirely) arbitrary. You are not required to guarantee the safety of your passengers. If someone isn't able to take care of himself, you can/should suggest that they not go (or walk around the rapid). Your best friend is common sense. It doesn't hurt to be picky about your passengers either.


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## Rich (Sep 14, 2006)

Riorider said:


> I am a lawyer (though not in CO), and a river runner. I take lots of people on trips (no written releases) That article isn't bad, for those who are interested in reading stuff like that. But here's the short course:
> There is nothing that you can do that will guarantee that you will never be sued - except for hiding in your room for the rest of your life. Although some people may believe otherwise, a written release certainly won't do the trick. But there are plenty of things that can reduce your chances of getting in trouble. First, understand that your best protection is taking reasonable precautions. Make sure that everyone is wearing PFDs. Keep a tidy boat without widowmakers. Give people a safety lecture and explain what may happen and what you should do if you (fall out of the boat/flip/broach/etc). Warnings, candid discussions and war stories can be useful. You already know how to do all of this. Believe it or not, the law isn't (entirely) arbitrary. You are not required to guarantee the safety of your passengers. If someone isn't able to take care of himself, you can/should suggest that they not go (or walk around the rapid). Your best friend is common sense. *It doesn't hurt to be picky about your passengers either.*





*No lawyers*


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## Riorider (Jul 20, 2011)

Too late...


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## SummitSurfer (Jun 23, 2010)

Thanks RioRider....you've got sound advice I'm going to take to heart.

I typically give a very thorough safety talk and include expectations of certain able individuals to help with rescue, paddling while rescues are being made etc etc........

Thanks,
****


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## mountainjah (Jun 21, 2010)

downstreamflip said:


> I'm taking a bunch of friends out after work today to run the Poudre. Most of them I know well, but a couple of them, I don't (friends of friends). This got me thinking about my legal liability if anyone gets hurt. Even good friends can sue if things go badly. I'm a commercial raft guide, too, so even though they aren't paying me anything, I think I probably could be held liable. They all know I'm a guide, so they expect everything from me that a paying customer would expect in terms of expertise and safety.


Question: how do you know there's a raft guide in the room?

answer: they tell you

To the OP....what part of this stressing out private float sounds fun? Dude, you're guiding...you're just a suck a for not having them book with you at work...

Some people like to show off their boats....Ass, gas or grass....nobody floats for free!


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## trickpony (Apr 20, 2010)

This may or may not be helpful...

I guide rafts and horseback trips. I actually spoke with a lawyer/friend about taking friends out on horses and "guided" trips... here's what he said:

You need to verbalize to the entire group (so there will be witnesses) that they are not part of a commercial trip, and that you do not assume any responsibility for their safety on the river. You are taking them down as a friend, not a river professional. 
Additionally... don't gloss over your safety talk. Make it brutal. I used to tell stories about people getting drug to death by a stirrup, having a horse fall on them and shattering their pelvis, shit like that. 

He basically said that if you warn them (in a gruesome, realistic manner)... at least they can't claim they didn't know the inherent risks. 

I have no idea if any of that would actually hold up in a legal situation, and I know that equine professionals are given a larger margin for error because of the inherent unpredictability of horses (or the law is more specific, anyway...) but it's a starting place.


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## downstreamflip (Feb 16, 2011)

Thanks, everyone. Had a great trip down Lower, then Upper Mish last night. I didn't do any kind of waiver, but I did do a thorough safety talk and let everyone know the risks and that I could not guarantee their safety, etc, etc. That was maybe my 5th private trip this year, but the first with friends who aren't rafters. 

Thanks for all the comments. Especially mountainjah's. You caught me! I totally wrote this post just so I could tell people I'm a raft guide! It wasn't relevant to this discussion at all, but I slipped it in there, anyway. You're so smart.


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## uptotherafters (Jul 22, 2011)

If 'a verbal agreement isn't worth the paper it's written on,' then wouldn't something in writing make sense? 

"I don't want to lose my house ...." in the OP does drive the point home.

There are several comments about explaining and describing risks in advance (including 'in the presence of everyone'~), but does anyone think anyone would agree later on what was said if something did happen?

I usually can't agree with myself what I had for breakfast.


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## uptotherafters (Jul 22, 2011)

Anymore, it does seem as though there aren't many things easier than suing someone for negligence.


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## uptotherafters (Jul 22, 2011)

'An ounce of prevention is worth a ....'

- OK, it's hokey, but ...


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## carvedog (May 11, 2005)

Are you arguing with yourself here? 
I think if you cut down on that you might remember what you had for breakfast. 

Even if there are variations of the safety talk remembered, that it was done at all alleviates some claimed ignorance. If three people remember something about a flip and what to do the 4ths claim of "no one told me" starts to lose cred.



gowiththeflow said:


> If 'a verbal agreement isn't worth the paper it's written on,' then wouldn't something in writing make sense?
> 
> "I don't want to lose my house ...." in the OP does drive the point home.
> 
> ...





gowiththeflow said:


> 'An ounce of prevention is worth a ....'
> 
> - Yeah, it's hokey, but ...





gowiththeflow said:


> Anymore, it does seem as though there aren't many things easier than suing someone for negligence.


As a guy I think pissing on the river is one of the easiest things in life. No aim, if you are already in the river or wet dribbles and shaking are moot and the visual symphony of a river can't be beat for the draining of recently frothy beverages.


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## mdkearl (May 8, 2004)

If i recall in CO, on a private trip you are not held to a higher standard on the river just because you're a professional guide. 

It's not like medical certs where a standard of care is expected with certain certifications.


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## uptotherafters (Jul 22, 2011)

carvedog said:


> Are you arguing with yourself here?
> 
> Ah, no.
> 
> ...


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## uptotherafters (Jul 22, 2011)

mdkearl said:


> If i recall in CO, on a private trip you are not held to a higher standard on the river just because you're a professional guide.
> 
> But if you're the one making the decisions?


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## downstreamflip (Feb 16, 2011)

mdkearl said:


> If i recall in CO, on a private trip you are not held to a higher standard on the river just because you're a professional guide.
> 
> It's not like medical certs where a standard of care is expected with certain certifications.


Really? If true, that's good to know. Where would one look to confirm that?


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## uptotherafters (Jul 22, 2011)

@carvedog,

If you check, I didn't say don't give the safety talk. It obviously couldn't hurt. Just don't assume that it would be much help if something were to happen.


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## uptotherafters (Jul 22, 2011)

downstreamflip said:


> Really? If true, that's good to know. Where would one look to confirm that?


It just seems that if one guy(with the experience) is making the decisions, that there would naturally be some reliance on the part of the others.

Don't know how you would confirm without talking to a lawyer, but with the risk of incident being what it is at recent flows, it does seem like an awfully good question raised in the OP. Just basic info for anyone taking (leading?) others on a float to have.


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## uptotherafters (Jul 22, 2011)

gowiththeflow said:


> @carvedog,
> 
> If you check, I didn't say don't give the safety talk. It obviously couldn't hurt. Just don't assume that it would be much help if something were to happen.


Also obviously, the reason for the prep talk more importantly is to avoid an incident in first place.


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## Ranco (Jun 18, 2010)

In MT waivers aren't worth squat. Best bet is to warn everyone that the river is very dangerous and they could be killed or mamed. Then make sure you have decent liability insurance (ie: high liability limits on your homowner's policy)


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## lncoop (Sep 10, 2010)

Ranco said:


> In MT waivers aren't worth squat. Best bet is to warn everyone that the river is very dangerous and they could be killed or mamed. Then make sure you have decent liability insurance (ie: high liability limits on your homowner's policy)


Umbrella coverage is worth looking into while you're at it. Purty cheap.


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