Discussion: Insurance for Permanent Courses

I am trying to set up a number of permanent courses in New England, and landowners typically ask me what liability coverage exists in the event of injury, etc. I suspect the OUSA insurance would not apply to permanent courses, since there is no tally of starts. Is it feasible to include some sort of waiver on the website listing the course and map to the effect of "you agree not to sue etc etc?" Would printing the waiver on the map offer a measure of protection?

How have clubs with permanent courses addressed liability concerns - in particular assuaging landowners?

It seems to me that this would be similar to geocaching, which doesn't require you to sign a waiver before every cache you attempt to find. If geocaching doesn't require a waiver, I suppose you could argue that a permanent orienteering course doesn't, either. But I'm not a lawyer...

"Well, I downloaded this map off a website and attempted to followed it. Because I didn't follow the map and was day dreaming, I fell off a cliff and broke my leg. I want to sue the club that has their logo on the map for $10 million for loss of earnings and mental trauma resulting from the fall"

Really? Do you really need insurance for a permanent course? Has the world gone that mad?!?

It's not a matter of the person suing the club, it's a matter of whether the landowner is concerned that he could be sued, and not covered by the orienteering club's insurance. If he gave the club permission to conduct the activity on his property, and then it turns out that there's an unknown hazard on that property, could some lawyer go after him?

I suspect that the people who set up geocaches typically don't get permission from anybody. The key here might be not having any sort of race (and importantly, not charging any money). You want the permanent course orienteers doing something that is indistinguishable from normal, typical activity on the land.

We're pretty wacko here in that regard but I'd agree that insurance for a permanent course is yielding to a "It's a Mad, Mad, Mad World" concept. Seems like geo-caching is or should be a reasonable precedent. What of hunters on private land? If you ask a lawyer, make sure you ask the right one...maybe an orienteer lawyer and not one who advertises on a roadside billboard (eg, personal injury lawyer aka "I can help you"). Assuring a landowner is a horse of another color.

As JJ suggests, many geocaches have been placed without permission. Now some parks in my area have geocaching policies requiring that the park staff be notified before a cache is placed. And they've been known to remove ones placed without permission. As to what they do about insurance, I don't know. I think they are mainly concerned about not having people go off trail in environmentally sensitive or dangerous areas (the latter could be related to liability concerns).

Of course, this comes no closer to answering the question. Since it is not an organized event and there is no sign-in with anyone, it seems logical that you should be on your own and responsible for yourself. But certain greedy parasites will always look for a way to deny their self-responsibility and grab a buck. And any person or institution that might have money is a potential target.

Should POC maps or attached instructions specifically list all possible hazards in the area? What about an explanation of "what is orienteering" and clear instructions stating that you don't have to follow a straight line between controls, since if someone falls off a cliff or drowns in a pond that is on the straight line, they (or their heirs) could probably find a lawyer and a court to hear their case.

This could get endlessly complicated....

All of QOC's permanent courses are in public parks/lands, with their permission. If a park authority OK's having the course in their park, it's their policy that matters.

Private landowners should inform their insurance carrier of the permanent course, and most likely, the carrier will note it without issue.

I'm no expert, but it would seem to me that the legal liability is all on the landowner. Obviously you must get their permission, but if they approve, then what happens on their land is their responsibility and not yours.

That said, if someone does get hurt while using the course (or even just getting impaled by one of the controls while walking by), I was once told by a lawyer that it is common to sue everyone in sight who has any money in their pocket (the deeper the pocket the better) in the hopes that something will stick.

I would contact landowners of existing permanent courses and ask how they are handling the situation. It might open up a can of worms if they have not previously given it a thought, though.

It's fun to be paranoid and speculate on landowners and others getting sued, but that's more myth than reality, particularly if no fee is charged for the access by recreation users.

See this discussion.

I seemed to recall that here in Vermont there is a law that effectively says if you give someone permission to use your property than you aren't responsible if they get hurt. (unless of course you do something to intentionally dangerous)

As I recall the law started with snowmobile clubs wanting to get landowner permissions and it was enacted to appease landowners concerned about the liability. After a while, the state thought it was a good idea and expanded it to cover recreational uses such as hunting, etc.

That's fine, but the question isn't whether a landowner can get sued. It's whether a landowner thinks he can get sued. If he can be persuaded that he's not on shaky ground (perhaps by reading that document), then he may be willing to grant permission. If he doesn't have confidence that he's got a solid position, then he may not grant permission no matter what the reality is.

Most maps are on public land, though, and they already have some way of dealing with whatever the liability might be of people showing up and doing things on the property that aren't really specified.

I agree JJ, it is what the landowner believes, or what they are told. We were prohibited from using one map becasue the owner's insurance company advised the owner against it. We of course told them we had liability insurance through USOF but the landowners insurance company said that didn't matter. If there were a lawsuit, they would become involved raising their costs and resulting in an increased premium for the owner. So,,,no more permission.

In 40 + years of orienteering in North America has there ever been a suit brought against a landowner, public or private, or an event organization because of an orienteering related incident? I haven't heard of any.
I believe the more important insurance for orienteering organizations to have is that which protects them against claims by landowners for damages caused by a participant in an event - a fence gets knocked down and cattle get out on a road, for instance.

@Ian, don't think what you propose would be a sufficient or even workable solution. For example, even signing one of our standard " hold harmless" waivers of liability is not deemed sufficient protection, such that OUSA carries insurance for third-party injury and property damage. It is also reasonable for a landowner to seek pass through of liability and claim compensation for damage to property, so I agree we have to have something in place.
You say above " no tally of starts". Why not link the download or map purchase to a system that tallies ie assumes a start and therefore qualifies for OUSA coverage through the paid premium. Just a thought. Anyhow I presume that OUSA must retain some form of legal advice for such questions.

Another thought - could the download/purchase require a signed EULA ?

I think you can forget about waivers in this case, as there's no actual way of controlling who gets a map or what they do with it. Unlike at a meet, where participants have to come up to a table (and usually pay money) and can be made to sign a waiver before getting a map and being sent out on a course, if people are getting maps from the web, there is no way to have any confidence that a person in the woods with a map looking for controls has done anything waiver-wise. I buy a map, do some waiver thing, then I give that map to somebody, and he goes out on the permanent course and burns down the forest. That's a gap you can drive an aircraft carrier through. The approach here has to be that the person is out in the woods, legitimately or not, and the fact that they have a map or that there are control markers is irrelevant. The only thing I'd make sure of is that the map prominently states that possession of it does not imply or confer access to the terrain depicted.

Here's some good stuff pertaining to WA state law:

http://evergreenmtb.org/wiki/index.php?title=RCW_4...

The only thing I'd make sure of is that the map prominently states that possession of it does not imply or confer access to the terrain depicted

Why would that be important/does Google serve this disclaimer with every tile? I can't seem to notice it.

An interesting question. The maps are different in a couple of ways: 1) Google doesn't really provide much information beyond the edges of public thoroughfares other than what can be seen from an airplane, and 2) Google provides coverage of everything, whereas an orienteering map provides information about a specific area, perhaps suggesting that there's something about that area that's different. But again, it's just to reassure landowners -- when asking for permission, you can point to the disclaimer and say that access to the property still has to be on their terms.

Oh, Google provides far more information than the public thoroughfares. Greg Lennon is a lot more qualified to chime in on that, but at least in the Bay Area, trail info is rapidly getting filled in, and I won't be surprised to see a headcam-equipped googlehiker (akin to the googlemobile) out there this year to take pics for—Trail View?

Hiking on public trails?

Yes. As many know, the public status of a certain property does not imply access to it at all times and under all sets of conditions, so if Google were to be guided by the same set of principles, they'd plaster the disclaimer all over their tiles before adding the trails, and they didn't.

I'm not saying that anybody on the organizing side would open themselves up to liability if there's no disclaimer about the map conferring access privileges. I'm just saying that such language might be helpful in terms of getting permission to set up a permanent course, but that trying to get people to agree to some sort of waiver is a complete waste of effort.

was google immune? Well, they won the lawsuit, but I don't know if OUSA has the same cash for lawyers.

But more relevant - O-USA does have a description of our policy online. My impression is that volunteers get liability insurance for all the club activities they organize, which ought to apply to permanent courses, right? But participants only get medical accident insurance if they are officially registered for an event. The extension of liability insurance to landowners is not something I fully understand. Somebody with a better legal understanding than me might want to clarify.

Permanent courses put markers on trees and provide maps. This is, in some ways, similar to a trail guide. The trail guide often has a map and directs you to a trail that has markers on trees. You then go from marker to marker. The difference is that the markers on the permanent courses are not on "trails". I don't know if the difference is large enough to cause problems. Just a thought......

Any comments on my previous post?

Peter - Can you get any guidance from OUSA's insurer?

I can work on it.

From comments from the insurance company, they are OK with permanent courses. The states are protective of who can sue for people being on land without charge so it is not really an issue. The statement from the insurance company was: "It does not matter if the permanent course follows a trail system or not. Coverage would STILL be in place should there be an incident."

Whose coverage?

OUSA Coverage which covers clubs.

Peter, please forward that correspondence to me. My e-mail address is in my profile. Thanks!

Thanks Peter - that seems to indicate that OUSA and it's clubs are covered, but what about the landowner? They are the ones we have to reassure to get permission from...Or would OUSA and the club offer to take full liability for any permanent course we set up?

My only knowledge on that is that most state laws protect landowners if someone is injured on their property as long as a fee has not been charged for the use of the land. This, at least in the northeast and mid-west, has been driven by groups such as snowmobile clubs who want access to the land and without landowner protection from lawsuits, the landowners would not allow access their to land. Similar with hunters getting access.
The Lakes Region Conservation Trust in New Hampshire allows use of its land but is very careful not to have anything that resembles a charge for using the land. Yes, at orienteering meets people pay entry fees that go to printing maps, maintaining equipment, etc. but there is nothing that is construed in any way to be a fee to enter their land.
Basically, if the landowner can't be sued for people who have an accident on their land if someone walks or snowmobiles or whatever, being on a permanent course would be no different.