by Representative Heidi E Scheuermann (R-Stowe) Late last week, the Vermont House of Representatives passed S.105, a bill with which many have significant concerns (Page 1514 of House Journal). Indeed, the breadth of the bill is exceptionally broad, and will have a significant impact on a number of industries and their ability to do business in Vermont. These include the technology industry, utilities, telecommunications, and many more. That said, the impact about which I am most concern is on our incredibly important, statewide, outdoor recreation industry.
As background, as passed, S.105 mandates a "rebuttable presumption" of anti-consumer intent in all instances in which there is any limitation of a claim in a contract; essentially, that the 5 items listed in the bill would be considered "substantively unconscionable" when included in a contract.
This may sound like gobbledygook to many, and has been dismissed by some in Montpelier as a change that really should be of no concern to our recreation industry.
But, it is important gobbledygook to understand, and the concerns of our recreation industry are very real.
What this change does is open up the door to a much wider array of legal claims - specifically very costly lawsuits, consumer fraud claims, and fines, in addition to the potential of costly increases in a business' liability insurance.
In the cases of the many recreational activities offered in this state by the thousands of non-profit and for-profit providers - biking, skiing, riding a horse, fishing, boating, golf, etc. - this means that those who offer those activities may not be able to include in their contracts some of the important waiver conditions that have historically been in their contracts.
The importance of these kinds of waivers in the outdoor recreation industry cannot be overstated, and the Vermont Outdoor Recreation Economic Collaborative outlined well this importance in testimony presented to the committee of jurisdiction:
"Waivers are an integral aspect of Vermont's recreational landscape. Ski resorts, guide services, trail-based organizations, recreation event providers, environmental and educational programs, college outing groups, land owners, and summer camps all use waivers for protection under the law when a participant in an activity has agreed to assume the associated risks. These entities depend on strong legislation to help them enforce waivers.
States like New York, Connecticut and Illinois, have proposed model consumer bills similar to S.105, which have not passed. New Hampshire and Colorado, states like Vermont that are highly dependent on recreation, have passed language to enforce waiver forms and strengthen inherent risk laws.
Meanwhile, Vermont has failed to provide legislative protections for recreation providers. Further, this bill makes it easier for participants to sue and harder for recreation providers to secure liability insurance."
To be clear, the recreation industry is one of the primary reasons why 13 million people visit Vermont each year, and spend $2.6 billion here. The industry is, in fact, what makes Vermont, Vermont.
Indeed, when individuals participate in any of these activities, they are taking on a risk. And, indeed, limitation of liability language is included in most recreational activity contracts throughout the state.
But, through the years, when there are claims, the Vermont Judiciary has done a good, competent job of evaluating these claims on a case-by-case basis - specifically in determining whether or not a provision in the contract is "unconscionable."
The bottom line is the system has been working. So, why would we put at risk the success of this critically important industry to every region of this state at this time?
In an effort to ensure we didn't, I proposed an amendment to the bill that would have exempted the industry from the requirements of this bill. I am sorry to report that the amendment did not pass. Unfortunately, the Democratic majority chose to vote against the interests of our outdoor recreation industry.
Further Notes of Interest from Testimony Received
Run Vermont - Vermont City Marathon
"To enact such hardline legislation would jeopardize RunVermont's ability to grow its events and align with critical corporate sponsors."
Vermont Ski Areas Association
"This bill would have an extremely detrimental impact on the ski industry as well as all other recreational businesses in Vermont. It would likely drive recreational activities out of Vermont, prevent others from coming into the state and make it more difficult for businesses offering recreational activities and competitive and other recreational events to secure liability insurance, as well as increase insurance premiums significantly."
Vermont Outdoor Recreation Economic Collaborative:
"This bill would hamper the ability of Vermont's outdoor recreation businesses and non-profits to exist, much less grow, and jeopardize the significant tax revenues and direct spending hat tourism and outdoor recreation generate to the State."