Senate Bill No. 567
(By Senators Laird, White and Kessler)
[Originating in the Committee on the Judiciary;
reported February 25, 2010.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §20-16-1, §20-16-2,
§20-16-3, §20-16-4, §20-16-5, §20-16-6, §20-16-7 and §20-16-8,
all relating to responsibility and liability of nonprofit
youth organizations, participants and providers in adventure
or recreational activities; providing a short title,
legislative purpose and definitions; providing the duties and
liabilities of nonprofit youth organizations or providers; and
providing duties and liabilities of participants.
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 §20-16-1, §20-16-2,
§20-16-3, §20-16-4, §20-16-5, §20-16-6, §20-16-7 and §20-16-8, all
to read as follows:
ARTICLE 16. NONPROFIT ADVENTURE AND RECREATIONAL ACTIVITY RESPONSIBILITY ACT.
§20-16-1. Short title.
This article may be cited as the Nonprofit Adventure and
Recreational Activity Responsibility Act.
§20-16-2. Legislative purpose.
The Legislature finds that West Virginia is blessed by
geography and natural features that make it ideal for a host of
adventure and recreational activities attractive to nonprofit youth
organizations interested in training and inspiring thousands of
young people from other parts of the United States and throughout
the world. The location by these organizations of facilities
within the state will contribute significantly to the economy of
West Virginia, and enhance the state's reputation as a place to
visit and transact business. Because it is recognized that there
are inherent risks in various adventure and recreational activities
which should be understood by participants therein and which are
essentially impossible for the organizations and their providers to
eliminate, it is the purpose of this article to define those areas
of responsibility and those affirmative acts for which these
nonprofit organizations and their providers of adventure and
recreational activities shall be liable for loss, damage or injury
suffered by participants, and to further define those risks which
the participants expressly assume and for which there can be no
In this article, unless a different meaning plainly is
(1) "Adventure or recreational activity" means any program or
activity sponsored by a nonprofit youth organization and conducted
by the organization or its provider that involves inherent risks,
including, but not limited to:
(A) All-terrain vehicle activities and similar activities,
including all activities within the ATV Responsibility Act in
article fifteen of this chapter;
(B) Biking, mountain-biking and similar activities;
(C) Canopy activities, zip-lines and similar activities;
(D) Climbing and repelling and similar activities in improved
and natural areas, including climbing walls,;
(E) Equestrian activities and similar activities, including
all activities within the Equestrian Activities Responsibility Act
in article four of this chapter;
(F) Firearms training and similar activities;
(G) Hiking, backpacking, camping and similar activities;
(H) Paintball and similar activities;
(I) Rope initiatives, cope and confidence courses, challenge
courses, slacklines, challenge courses and similar activities;
(J) Skating, including ice skating, rollerblading, and similar
(K) Snow activities, including snowshoeing, snow skiing,
sledding, snowmobiling, and similar activities, including all
activities within the Skiing Responsibility Act in article three-A of this chapter;
(L) Spelunking, caving, and similar activities;
(M) Water sports, including swimming, diving, canoeing,
kayaking, boating, sailing, scuba diving, water skiing, and similar
activities, including all activities within the Whitewater
Responsibility Act in article three-B of this chapter;
(N) Windsurfing and similar activities.
(2) "Nonprofit youth organization" means any nonprofit
organization, including any subsidiary, affiliate or other related
entity within its corporate or other business structure, that has
been chartered by the United States Congress to train young people
to do things for themselves and others, and that has established an
area of at least six thousand contiguous acres within West Virginia
in which to provide adventure or recreational activities for these
young people and others.
(3) "Participant" means any person engaging in an adventure or
(4) "Provider" means any individual, sole proprietorship,
partnership, association, public or private corporation, the United
States or any federal agency, this state or any political
subdivision of this state, and any other legal entity which
engages, with or without compensation, in organizing, promoting,
presenting or providing or assisting in providing an adventure or
recreational activity sponsored by a nonprofit youth organization,
including one that allows the nonprofit youth organization the use
of its land for the adventure or recreational activity.
§20-16-4. Duties of a nonprofit youth organization or provider.
Every nonprofit youth organization or provider shall:
(1) Make reasonable and prudent efforts to determine the
ability of a participant to safely engage in the adventure or
(2) Make known to any participant any dangerous traits or
characteristics or any physical impairments or conditions related
to a particular adventure or recreational activity, of which the
nonprofit youth organization or provider knows or through the
exercise of due diligence could know;
(3) Make known to any participant any dangerous condition as
to land or facilities under the lawful possession and control of
the nonprofit youth organization or provider, of which the
nonprofit youth organization or provider knows or through the
exercise of due diligence could know, by advising the participant
in writing or by conspicuously posting warning signs upon the
(4) In providing equipment to a participant, make reasonable
and prudent efforts to inspect such equipment to assure that it is
in proper working condition and safe for use in the adventure or
(5) Prepare and present to each participant or prospective
participant, for his or her inspection and signature, a statement
which clearly and concisely explains the liability limitations,
restrictions and responsibilities set forth in this article.
§20-16-5. Duties of participants.
It is recognized that the adventure and recreational
activities described in this article are hazardous to participants,
regardless of all feasible safety measures which can be taken.
Each participant in an adventure or recreational activity
expressly assumes the risk of and legal responsibility for any
injury, loss or damage to person or property which results from
participation in an activity. Each participant shall have the sole
individual responsibility for knowing the range of his or her own
ability to participate in a particular adventure or recreational
activity, and it shall be the duty of each participant to act
within the limits of the participant's own ability, to heed all
posted warnings, to perform an adventure or recreational activity
only in an area or facility designated by the nonprofit youth
organization or provider and to refrain from acting in a manner
which may cause or contribute to the injury of anyone.
A participant involved in an accident shall not depart from
the area or facility where the adventure or recreational activity
took place without leaving personal identification, including name
and address, or without notifying the proper authorities, or
without obtaining assistance when that person knows or reasonably
should know that any other person involved in the accident is in
need of medical or other assistance.
§20-16-6. Liability of nonprofit youth organization or provider.
(a) A nonprofit youth organization or provider shall be liable
for injury, loss or damage caused by failure to follow the duties
set forth in section four of this article where the violation of duty is causally related to the injury, loss or damage suffered. A
nonprofit youth organization or provider shall not be liable for
any injury, loss or damage caused by the negligence of any person
who is not an agent or employee of the nonprofit youth organization
(b) A nonprofit youth organization or provider shall be liable
for acts or omissions which constitute gross negligence or willful
and wanton conduct which is the proximate cause of injury to a
(c) A nonprofit youth organization or provider shall be liable
for an intentional injury which he or she inflicts upon a
(d) Every nonprofit youth organization shall carry public
liability insurance in limits of no less than $100,000 per person,
$300,000 per occurrence and $10,000 for property damage.
§20-16-7. Liability of participants.
Any participant shall be liable for injury, loss or damage
resulting from violations of the duties set forth in section five
of this article.
§20-16-8. Applicability of article.
The provisions of this article are in addition to provisions
of articles three-A, three-B, four and fifteen of this chapter, and
are to be construed in pari materia.
(NOTE: This article is new; therefore, strike-throughs and
underscoring have been omitted.)