The Civil Liability of Tour Operators and the Famous “Release Clause”
The Civil Liability of Tour Operators and the Famous “Release Clause”
It is common, during times like these when the end of the year approaches, for adventure tourism to increase, as most of the population is on vacation. However, unfortunately, it is also common for incidents, acts, behaviors, or accidents to occur when carrying out such activities, generally involving a certain level of risk and a degree of skill or physical effort. This gives rise to situations that are legally relevant in terms of the civil liability of tour operators and/or companies providing the service.
In Costa Rica, it is customary for every user who intends to use the tourism service to sign a document or a type of “release clause,” in which they declare that they are fully and absolutely responsible for the risks to which they are exposed by participating in the activity. Furthermore, clauses may even be included where users waive any right to make financial claims and agree to pay for repair costs in case of damage to the company’s movable and immovable property. However, such actions may be deemed abusive and, consequently, invalid in a potential judicial process.
In this regard, our Civil Code establishes that: “Anyone who, by fraud, fault, negligence, or imprudence, causes damage to another, is obligated to repair it along with the losses,” and: “The obligation to repair the damages and losses caused by a crime or quasi-crime rests jointly on all those who participated in the crime or quasi-crime, whether as perpetrators or accomplices, and on their heirs.” Based on the above, in civil matters, the key is to determine, ex officio, the presence of the material prerequisites, namely: a) The right: which means proving the existence of a moral or property damage; b) a causal relationship between the event and the damage; and, finally, c) a criterion of civil imputation: subjective (fraud or fault), or objective liability, in accordance with Articles 1045 and 1046 of our Civil Code as cited above.
Furthermore, in our country, there is Decree No. 29421 from the Ministry of Economy, Industry, and Commerce, which “aims to define the requirements that must be met by providers or companies offering adventure tourism services, concerning health and safety aspects for both users and their workers, and regarding the necessary elements for their operation.” It imposes on the tour operator the obligation to subscribe to civil liability and workers’ compensation insurance policies.
Ultimately, even if each user signs clauses through which the company seeks to exempt itself from responsibility and from paying for damages and losses, it is important to understand that the company and its suppliers will always be required to respond in case any incident occurs, sometimes jointly.
For any inquiries or comments, feel free to contact us at the email address dmarin@lexincorp.com.
