Re: [Paddlewise] Liability and Waivers

For clubs with assets, insurers usually require waivers -- their 
waivers.  It does not really matter if the waivers hold water or not -- 
if you want coverage you must use them.

For clubs without assets, the richest pockets will be the club 
directors or trip leaders.  Whether there is a waiver or not, the 
injured party will be coming after them.   If they had been insured 
through the club, then the insurance company would also be on the 
line and would mount a defence.  Who would be better positioned to 
put up a defence, Joe Instructor or State Farm?  Regardless of how 
good the waiver is, you can limit your exposure through insurance.

When it comes down to waivers, they let the defendant use the defence 
of voluntary assumption of risk.  They only come into the matter once 
it looks like the defendant was negligent.  Obviously the best way to 
stop an action is to avoid being negligent, rather than to be 
negligent and pray that a waiver will protect you.  Consequently, 
insurers are now requiring clubs to implement risk management plans, 
and independant of the insurance issue, many clubs are requiring 
formal, ongoing training and certification for trip leaders, the filing 
of trip plans, and the preparing of emergency plans.

If the worst has happened and you find youself needing to be saved by 
a waiver, you have to worry about a number of things.  First, the 
risk which you claim has been  voluntarily assumed by the plaintiff 
must have been expressly stated in the waiver.  You have to be pretty 
specific about what risk is involved, but if you get too broad then 
you run the risk of the court saying that the contract was too 
one-sided, and should be construed strictly against you because what 
you were demanding was unreasonable or oppressive.  
This gets very difficult for businesses, where the courts are 
concerned about the bargaining advantage a business might have over a 
client.

You also have to pay attention to when the waiver was signed.  If you have 
your client sign it too early, before she could know the risks, then 
it is void.  If it is signed after the formation of the contract, then 
it is too late.  Either way you are cooked.  

To make it more difficult, you also have to watch out for prior inconsistent oral 
representation -- for example if you say to Jackie that your kayaking 
lessons are safe, so she decides to take one with you, your waiver 
against her might not hold up due to your earlier assertion.

In short, waivers give you a shot at a defence, but the courts will 
try to find a way of tossing them.  Use a waiver, but don't depend on 
a waiver.

The next area of voluntary assumption of risk concerns implied 
assumption of risk.  Waiver or not, when Jackie takes a header, you 
will argue that she knew that kayaking was dangerous and that she 
impliedly assumed the risk.  This works quite well for minor stuff 
which you can expect to encounter by mererly participating -- the 
expected swims, bumps and grinds.  It does not work for 
extradordinary stuff, for example, a leader taking Jackie down 
something hellacious on her first lesson, or a leader failing to warn 
Jackie of an obstacle that could cause her grief.  As you have 
probably already noticed, a lot depends on Jackie's competence, on 
the leader's competence, and on the implied relationship between 
them.  If Jackie is a new paddler and you run her through class IV, you 
probably are negligent.  If Jackie is a class V padder and you run 
her through class II, you probably are not negligent.  It really 
depend on the circumstances.   Looking at the circumstances, what 
hazards  are coincident with mere participation, and what hazards 
involve  negligence?  There is no clear answer.

In conclusion, don't count on anything getting you off if you have 
been negligent.  Arguing voluntary assumption of risk via express 
waiver terms or via implied assumptions is a last resort which may 
get you off, but should not be depended upon.  The more negligent 
your behaviour, the less chance you have.

Richard Culpeper
www.geocities.com/~culpeper
culpeper_at_geocities.com
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