H. B. 2532
(By Delegates Staggers, L. Phillips, Hall, Martin,
Perry, Moore, Morgan, Mahan, Moye, Pino and Williams)
[Introduced January 18, 2011; referred to the
Committee on Energy, Industry and Labor, Economic Development and Small Business then the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §20-3D-1, §20-3D-2, §20-3D-3, §20-3D-4 and §20-3D-5, all relating to zipline regulation; establishing legislative purpose; defining terms; setting forth duties of zipline operators; requiring liability insurance; setting forth recordkeeping requirements; establishing responsibilities of participants; providing for assumption of risks; setting forth prohibited acts; and defining liability of zipline operators.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §20-3D-1, §20-3D-2, §20-3D-3, §20-3D-4 and §20-3D-5, to read as follows:
ARTICLE 3D. ZIPLINE RESPONSIBILITY ACT.
§20-3D-1. Legislative purpose.
(a) The Legislature finds that:
(1) The sport of ziplining is practiced by a large number of citizens of West Virginia and also attracts to West Virginia a large number of nonresidents, significantly contributing to the economy of West Virginia; and
(2) There are inherent risks in the sport of ziplining which should be understood by each participant and which are essentially impossible to eliminate by the zipline operator.
(b) The purpose of this article is to define those areas of responsibility and affirmative acts for which zipline operators are liable for loss, damage or injury and those risks which the participant expressly assumes for which there can be no recovery.
The following terms have the following meanings:
(1) “ACCT” means the Association for Challenge Course Technology, Seventh Edition.
(2) “Challenge course” means a facility or facilities not located in an amusement park or carnival consisting of one or more elements that challenge participants as part of a supervised or guided educational or recreational curriculum, including, but not limited to, beams, bridges, cable traverses, climbing walls, nets platforms, ropes, swings, towers and zip wires, which may be installed on or in trees, poles, portable structures or buildings, or be part of a self-supporting structure.
(3) “Participant” means any person who engages in activities on a challenge course or in a group activity supervised by a challenge course operator.
(4) “Zipline” means a cable or rope line suspended between support structures enabling a participant attached to a pulley to traverse from one point to another.
(5) “Zipline operator” means any person, partnership, corporation or other commercial entity and their agents, officers, employees or representatives, who has operational responsibility for any zipline.
§20-3D-3. Duties of zipline operators.
Every zipline operator shall:
(1) Construct, install, maintain and operate all ziplines in accordance with ACCT standards or substantially equivalent standards;
(2) Ensure that ziplines are inspected annually by a professional inspector who meets the qualifications set forth in ACCT standards or substantially equivalent standards;
(3) Procure and maintain commercial general liability insurance against claims for personal injury, death and property damages occurring upon, in or about the zipline course, written by an insurance company or companies authorized to do business in West Virginia, which affords protection to the limit of not less than $1 million for injury or death of a single person, to the limit of $1 million for any one accident or occurrence and to the limit of not less than $100,000 for property damage; and
(4) Maintain records for a period of at least three years from the date of the creation of the record, in a manner reasonably accessible to the public, including, but not limited to:
(A) Proof of insurance;
(B) Inspection reports;
(C) Corrective action reports, if any;
(D) Maintenance repair logs;
(E) Local operating procedures manual;
(F) Staff training plan;
(G) Daily equipment inspection logs; and
(H) Participant acknowledgment, assumption of risks and release of liability.
§20-3D-4. Responsibilities of participants; assumption of risks; prohibited acts.
(a) Each participant has the sole individual responsibility for knowing the range of his or her own ability to negotiate a zipline course, and it is the duty of each participant to participate as instructed by the zipline operator and within the limits of his or her own ability.
(b) Each participant expressly assumes the risk of and legal responsibility for any injury, loss or damage to persons or property which results from participation in the sport of ziplining, including, but not limited to, any injury, loss or damage caused by variations in terrain, weather conditions, rocks, trees or other forms of forest growth or debris: Provided, That the injury, loss or damage is not caused by the willful and wanton misconduct of the zipline operator or an agent or employee of the zipline operator.
(c) No participant may:
(1) Use a zipline without the authority, supervision and guidance of the zipline operator;
(2) Drop, throw or expel any object from a zipline course;
(3) Perform any act which interferes with the running or operation of a zipline course; or
(4) Engage in any harmful conduct, or willfully or negligently engage in any type of conduct which contributes to or causes injury to any person.
§20-3D-5. Liability of zipline operators.
(a) A zipline operator is liable for injury, loss or damage caused by failure to follow the duties set forth in subdivision (1), section three of this article where the violation of duty is causally related to the injury, loss or damage suffered.
(b) A zipline operator is not liable for any injury, loss or damage caused by the negligence of any person who is not an agent or employee of the zipline operator.
NOTE: The purpose of this bill is to regulate ziplines. It sets forth duties of zipline operators and participants; establishes standards for the construction, installation, maintenance and operation of ziplines; requires liability insurance, inspections, recordkeeping and staff training; and limits liability for injury to participants in the absence of failure to follow the duties set forth in the bill.
This article is new; therefore, it has been completely underscored.