The Tennessee legislature adopted Public Chapter No. 862 which was signed by Governor, Bill Haslam, on May 1, 2012 and is effective on that date. This bill created T.C.A. § 70-7-201 through T.C.A. § 70-7-205. The general purpose of these new statutes is identified in the bill. The bill states the purpose is to “encourage Whitewater activities by limiting the civil liability of those involved in such activities” in Tennessee. This statute provides immunity from civil suit in certain circumstances in T.C.A. § 70-7-202 which states:
Except as provided in § 70-7-203:
(1) A Whitewater professional shall not be liable for an injury to or the death of a participant resulting from the inherent risks of Whitewater activities; and
(2) No participant or participant's representative shall make any claim against, maintain an action against, or recover from a Whitewater professional, or any other participant for injury, loss, damages, or death of the participant resulting from any of the inherent risks of Whitewater activities.
As a result, the statute provides immunity to Whitewater professionals for many Whitewater activities that could result in injury. A “Whitewater professional” is defined in the statute as “a person, corporation, LLC, partnership, natural person or any other entity engaged for compensation in whitewater activity.” The term “inherent risks of Whitewater activities” is also a defined term in the statute and the immunity only applies if the injury results from one of the defined inherent risks. “Inherent risks of Whitewater activities” is defined in T.C.A. § 70-7-201 as follows:
(2) “Inherent risks of Whitewater activities” means those dangers or conditions that are an integral part of Whitewater activities, including, but not limited to:
(A) Water;
(B) Rocks and obstructions;
(C) Cold water and weather; and
(D) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or other, such as failing to follow instructions or not acting within the participant's ability;
It is important to note, however, that T.C.A. § 70-7-203 provides specific exceptions to the general immunity provided in this statute. T.C.A. § 70-7-203 provides:
Nothing in § 70-7-202 shall be construed to prevent or limit the liability of a Whitewater professional, or any other person if the Whitewater professional:
(1) Provided the equipment and knew or should have known that the equipment was faulty, and the equipment was faulty to the extent that it caused the injury;
(2) Owns, leases, rents, or otherwise is in the lawful possession and control of the land or facilities upon which the participant sustained injuries because of a dangerous latent condition that was known to the Whitewater professional, or person and for which warning signs have not been conspicuously posted;
(3) Commits an act or omission that constitutes gross negligence or willful or wanton disregard for the safety of the participant, and the act or omission caused the injury; or
(4) Intentionally injures the participant.
Further, T.C.A. § 70-7-204 requires Whitewater professionals to post a warning sign and to insert into any Whitewater contract a statement discussing the terms in this statute. Interestingly, the statute does not identify the penalty if a Whitewater professional does not provide the required warning sign and notification in the contract.