Reb Gregg Outdoor Liability Law: Writings

Writings

Inherent Risks
by Charles R. Gregg

1) Inherent risks are those so integral to an activity that, without them, the activity loses its basic character and appeal. These are risks of injury or loss which cannot be reduced or avoided without changing the basic nature of the activity.

Some, but not all, falls are an inherent risk of horseback riding, for example. Inherent risks arise from the unpredictable nature of the horse, including a tendency to spook for no apparent reason. Inherent risks may include slipping from a saddle, or falling in the event of sudden starts or stops. Falling is not an inherent risk if it results from errors of the equine provider….unsuitability of the horse for the rider, improper gear, or latent terrain issues, for example. In these latter cases, among others, questions of negligence arise.

2) Inherency is also found in subsets of the more familiar activity: the teaching or coaching of an active sport, for example. The duties of and to persons within the “orbit” of the activity (instructors, co-participants, and spectators) may be relaxed to a degree. Simple carelessness, or negligence, may be regarded as inherent to instruction, co-participation or observation of an activity. The rationale is that to punish one for an apparent careless act in this context would “chill” the nature of the activity and it would lose its appeal and basic character.

3) A service provider has no duty to eliminate or even reduce inherent risks and cannot be liable for failing to do so.

4) As noted above, inherent risks may be enlarged by circumstances or conduct. A provider has a duty not to enlarge the inherent risks of an activity. Doing so creates a duty to control that enlargement, to avoid injury or loss. Examples of an enlargement of the inherent risks of an activity include: placing small children on the floor of a raft/Madsen; no sequential learning for a horseback ride/ski activity/Sapone/Pine Knob; dropping a horse’s lead rope/Sapone; no liquids for a marathon event/Saffro; a troublesome dog on a trail ride/Beehner); failure to instruct, supervise staff; failure of equipment, training and supervision of staff (various ski cases).

5) The breach of a duty to reasonably manage the enlarged risks could lead to a claim of negligence if the breach causes an injury or other loss.

6) A client may, with knowledge of the enlarged risks, expressly (not by mere participation, usually) expressly agree to assume that enlargement of risks and engage in the activity in spite of the enlargement. A client’s express assumption of an enlargement of the inherent risks of an activity relieves the service provider of the duty to protect the client from a loss caused by that enlarged risk. A service provider has no duty, in most states, to protect a client from an expressly assumed risk.

7) Assumption of inherent risks and express assumption of non-inherent risks are often referred to as Primary Assumption of Risks.

8) A client may choose to engage in the activity and confront known enlarged risks, without expressly agreeing to assume them. This is often referred to as Secondary Assumption of Risk. This Secondary Assumption is often an after--the-fact analysis, whereby the Court initially determines that 1) what caused the loss was not a inherent risk, 2) the provider had a duty to protect the client, and 3) the provider failed that duty. The Court or jury may then compare the client’s negligence (unreasonableness) in deciding to participate, in the face of the risks, with the service provider’s negligence in failing to reasonably manage the enlarged risks. Any recovery for the client may be adjusted accordingly. (“Comparative fault” in most states.)

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