Recreation Liability

Meetings & Conventions: Planner's Portfolio April 1999 Current Issue
April 1999 Jonathan Howe PLANNER'S PORTFOLIO:

The Law & the Planner

BY JONATHAN HOWE

Recreation Liability

Who is responsible when an adventure goes awry?

In the December issue of M&C, an article in Incentive Newsline looked at the lawsuit that resulted after a 1996 incentive program involving a hot-air balloon ride ended in a fiery crash, killing two people and injuring another. The incentive manager, the sponsoring organization, and the destination management company were sued by the injured participant and family members of one of the deceased.

Attorneys for the plaintiffs, citing information in the incentive company’s promotional materials and on its Web site, allege that the company falsely represented how prudent and responsible it is to its clients. An expert witness for the plaintiff says such representations create trust among all the parties, putting additional responsibility on those who rely on the representations.

The defendants counter that due care was exercised and that the balloon company had federal government approval.

Ultimately, the court will decide who bears the responsibility for the crash, but the suit is a wake-up call to all who arrange such events. In this litigious day and age, planners have to be careful about what they promise to deliver. Also, having promised to deliver something, they should take steps to assure the delivery can occur without undue risk.

When a meeting planner schedules extracurricular activities, the potential for liability is always there. Legal responsibility might even shift to the planner. Once the organization becomes a sponsor of a program, whether it is a simple hiking activity that involves little risk or a daredevil program like white-water rafting, the planner assumes some responsibility to those who sign up for the trip.

The key questions here are: What was said in the collateral materials to promote the program? How was the quality of the program and the provider represented? What will be delivered to the participant?

When something happens during a program that results in personal injury or death, there are several ways the issue of liability can arise. It can originate from a statement in promotional materials that the activity will be safe, or from the sponsor’s failure to investigate the third-party provider or facility properly, or from negligence in selecting of the supplier. The meeting professional’s failure to supervise the development of the itinerary properly could become a liability issue. The organization also might be liable if the potential risk for participants was not communicated well.

PROTECTIVE SHIELD
The planner always should attempt to limit the organization’s and her liability exposure by thoroughly checking out any third party that will provide a program. This includes putting in the contract indemnification and insurance clauses protecting the sponsor. Third parties should be designated as independent contractors who are responsible for errors or omissions of their own. Planners also should be sure the third party has all the necessary licenses, training and up-to-date equipment to run the event. If the meeting professional misrepresents the supplier’s integrity or how the safety and health of the participants will be ensured, the organization and the planner can be found in breach of contract.

Additionally, when any third party is selected to run a program, the meeting planner might need to supervise the activity, especially if the planner never worked with the tour company before. The planner at least should give clear instructions to those who are going to conduct the program.

In arranging a high-risk event, the planner should consider risk vs. benefit. The more likely an injury is to occur, the higher the liability potential. A white-water rafting trip for executives over age 50 might be riskier than a team-building exercise, but the adventure activity might be appropriate for a younger group in junior management.

Also, if the risk of harm is not disclosed to participants, count on a big lawsuit if something happens. Disclosing all risks and having participants sign an informed consent release as a condition of joining the program definitely helps limit liability. To view a sample consent form, click (here).

In all cases, make sure enough insurance is in place to cover the program.

Jonathan T. Howe, Esq., is a senior partner in the Chicago and Washington, D.C., law firm of Howe & Hutton, Ltd., which specializes in meetings, travel and hospitality law.

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