The danger is ‘part of the fun‘: Idaho bill may change liability for outdoors industry
Supporters and business owners say whitewater rafting, other activities should be treated same as skiing
Idaho Sen. Todd Lakey, R-Nampa, listens to the action on the Senate floor at the State Capitol in Boise on Jan. 9, 2023. (Otto Kitsinger for Idaho Capital Sun)
The owners of small outdoor-recreation businesses went before an Idaho Senate committee Monday to support legislation that would limit their legal liability when something goes awry on a trail ride, in whitewater rapids or on a hunting expedition.
The legislation, Senate Bill 1051, spells out that people who hire a licensed guide or outfitter can sue if they’re harmed by negligent, reckless or intentional conduct.
Current law says that, if a participant is harmed or injured “by the action of an outfitter or guide,” the participant can sue for “negligence or comparative negligence.”
The new bill would protect those guides or outfitters from liability for things they cannot control — like rocks in a river, a falling tree or blowing wind — while keeping them on the hook for what they can, said Idaho Outfitters and Guides Association Executive Director Aaron Lieberman.
The bill’s supporters said Idaho is the most tightly regulated state when it comes to outfitters and guides. They said the bill would lower their liability insurance premiums and keep them in business, as an economic driver in rural areas that attract outdoors tourism.
“People love to come here because they like to engage in outdoor recreational activities,” said Sen. Todd Lakey, R-Nampa, who sponsored the bill. “… We do these things in places or in ways that are inherently dangerous. But frankly, that’s part of the fun. That’s why we seek those things out.”
This legislation seeks to make the two code sections — the ski resorts section and outfitters-and-guides section — more equivalent. Both involve inherently dangerous and discretionary activities, where operators should be protected and participants should accept the risks.
– Idaho Sen. Todd Lakey, R-Nampa
The bill’s opponents, though, include lawyers who work in the arena.
Wyatt Johnson, an attorney with Johnson May Law in Boise, said he was testifying because the Idaho Trial Lawyers Association opposes the bill. But he felt personally compelled to speak, as “an Idaho outdoorsman my entire life” and as a lawyer. He described the bill as a “get out of jail free” card for the industry.
“This bill is a bad idea,” Johnson said. “And it’s not doing what people think that it’s going to do. And it’s not providing the protections that the outfitters think that they need. And it’s not serving the public.”
He said the existing law was born out of legal decisions to balance protections for the industry with protections for people who hire the industry.
“The only exceptions (to legal liability in the bill) are intentional conduct, which is if an outfitter shoots somebody,” Johnson said. “Recklessness basically amounts to something that would be intentional, except the person who’s doing it is too stupid to realize that it’s intentional. That’s it. There’s no good reason to change this.”
The bill says that people who hire a professional guide or outfitter can sign away their right to sue for negligence. However, lawyers at the hearing couldn’t seem to agree on what would count as “negligence.”
As he presented the bill, Lakey said, “It may be negligent to not have your river rafters wear life jackets. But you can’t change the river.”
Lakey said he believes people who hire a professional guide or outfitter “should be responsible for themselves and those choices that they make, to do these inherently risky activities.”
The cost of running a guide or outfitter business has increased due to lawsuits and rising insurance premiums, he and others said in their testimony to the committee. That has forced some business to close, they said.
The committee voted to send the bill to the Senate with a “do pass” recommendation. The committee’s two Democrats were the only members to vote against advancing the bill.
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