(this was under the subject header of "Paddling Clubs") > From: dldecker_at_mediaone.net > This is what we use in Fla. > Dana > > FLORIDA SEA KAYAKING ASSOCIATION > RELEASE AND ASSUMPTION <snip> > responsibility. I agree to follow the directions of the designated trip or > clinic leader, > and I understand that failure to do so will result in my being unable to > participate in any > further activities of the Florida Sea Kayaking Association. I understand why you include this in your waiver but I'm not comfortable with that. Example: When participating in a canoeing class, I was a student of a highly experienced instructor (ACA). We were traveling down a swolen river, I was bow paddler. He had a tendency to be somewhat impatient, agitated, and very loud. We traveled over a fall and some rapids where he began yelling to me to draw right which would have put us directly on top of a refrigerator lodged on a small island. He yelled louder, I refused to draw right, and we passed the eddy-out he intended (with him yelling at me as I refused to park the canoe on a refrigerator) and took a lower eddy. I was new at this, confused why he wanted to paddle on top of a refrigerator and why he was yelling at me so and was torn between his extremely agitated instructions and my gut instincts. I don't know what I would have done had I been told if I didn't follow all his instructions, I would not have been allowed to paddle with the club again. Would it have made me do differently? I was a beginner and new to the club. I probably would have followed my gut instincts, anyhow, but would everyone? Sometimes the gut instincts of the paddler are more sensible than some trip leaders or instructors. Some people are more aware of their own limitations than some trip leaders/coordinators who will push participants into situations where they should not or do not want to be. I would rather stress self responsibility of the individual paddler. Turns out, my canoe instructor was too involved with trying to get me to comply with his demands and never saw the refrigerator which was mostly exposed which I couldn't imagine he couldn't see. He was used to paddling that river and there had not been a refrigerator there before. If I had followed his instructions because of the above waiver and we had been injured (a *real* possibility with that particular swollen and fast moving river which is also known to contain many strainers and probably could contribute to his becoming more agitated at my not following instructions), would the club have been liable because of the above statement in its waiver? I don't know. Cheers, Jackie http://www.gasp-seakayak.net/ _ _ _ _ _ \\ / \0/ \ / \0/ \ \\ " " `\ ,sSSs,\, )\w/( ,sSS..)/{) <<..> sSSS_v)/ \ )<*> sSS[(\_]___\ <(_/_o_o_ 'sS[_`-+---+) \----+-------+-------'---`-----\-------------') ~~~~~~~ ~~jf ~~~~~~~~~ ~~~~~~ ~~~~~~~ ~~~~\~ ~~~~ ~~~~~~~~~ ~~~~~~~ o \ o \\ o o \\ o o ` (\ o o >jf:-) o (/ o *************************************************************************** PaddleWise Paddling Mailing List Submissions: paddlewise_at_lists.intelenet.net Subscriptions: paddlewise-request_at_lists.intelenet.net ***************************************************************************
At 11:43 AM 2/9/98 -0800, Jackie Fenton wrote: > >(this was under the subject header of "Paddling Clubs") It was a reply to a question of paddling clubs and I thought that it still concerns clubs, I can and often am wrong. picky picky picky > >> From: dldecker_at_mediaone.net > >> This is what we use in Fla. >> Dana >> >> FLORIDA SEA KAYAKING ASSOCIATION >> RELEASE AND ASSUMPTION > ><snip> > >> responsibility. I agree to follow the directions of the designated trip or >> clinic leader, >> and I understand that failure to do so will result in my being unable to >> participate in any >> further activities of the Florida Sea Kayaking Association. > > >I understand why you include this in your waiver but I'm not comfortable >with that. > > >If I had followed his instructions because of the above waiver and we had >been injured (a *real* possibility with that particular swollen and fast >moving river which is also known to contain many strainers and probably >could contribute to his becoming more agitated at my not following >instructions), would the club have been liable because of the above >statement in its waiver? I don't know. > >Cheers, > >Jackie >http://www.gasp-seakayak.net/ > I am no lawyer, and don't play the part on TV, and did not write the Waiver. I can only say that I don't like the whole idea of having to have waivers. The people I paddle with on club trips are the same I paddle with at other times. Dana *************************************************************************** PaddleWise Paddling Mailing List Submissions: paddlewise_at_lists.intelenet.net Subscriptions: paddlewise-request_at_lists.intelenet.net ***************************************************************************
> From: dldecker_at_mediaone.net > At 11:43 AM 2/9/98 -0800, Jackie Fenton wrote: > > > >(this was under the subject header of "Paddling Clubs") > > > > It was a reply to a question of paddling clubs and I thought that it still > concerns clubs, > I can and often am wrong. picky picky picky I think you misunderstood. I was changing the subject to another and only indicating what the old subject was so that those who might want to go back and reread the entire thread could find it and also indicating by changing the subject that there was now an emphasis on talking about liability waivers for those who would be interested in that and not interested in a new club discussion. > > I am no lawyer, and don't play the part on TV, and did not write the > Waiver. I can only say that I don't like the whole idea of having to have > waivers. The people I paddle with on club trips are the same I paddle with > at other times. I agree about the waivers. When I coordinated trips, I rarely used waivers. When I put together a trip on my own, I never use waivers. Unfortunately, with club liability and club trips, waivers have become necessary. In some areas, though, I think incorporating the club is more critical than waivers to protect members from those who coordinate or lead a trip and who might behave in an irresponsible and/or negligent manner, or forget to have club members sign waivers :-) My change in subject title was to hopefully stimulate discussion on this topic specifically. I am still unaware of any paddling club that has been sued. Thanks for presenting your club waiver, Dana. It gives us some point of reference for discussing pros and cons of specifics in waivers and what the solutions might be for various organizations (of course, location plays a large part in the writing of the waiver). Cheers, Jackie _ _ _ _ _ \\ / \0/ \ / \0/ \ \\ " " `\ ,sSSs,\, )\w/( ,sSS..)/{) <<..> sSSS_v)/ \ )<*> sSS[(\_]___\ <(_/_o_o_ 'sS[_`-+---+) \----+-------+-------'---`-----\-------------') ~~~~~~~ ~~jf ~~~~~~~~~ ~~~~~~ ~~~~~~~ ~~~~\~ ~~~~ ~~~~~~~~~ ~~~~~~~ o \ o \\ o o \\ o o ` (\ o o >jf:-) o (/ o *************************************************************************** PaddleWise Paddling Mailing List Submissions: paddlewise_at_lists.intelenet.net Subscriptions: paddlewise-request_at_lists.intelenet.net ***************************************************************************
>> It was a reply to a question of paddling clubs and I thought that it still >> concerns clubs, >> I can and often am wrong. picky picky picky > >I think you misunderstood. I was changing the subject to another and only >indicating what the old subject was so that those who might want to go back >and reread the entire thread could find it and also indicating by changing >the subject that there was now an emphasis on talking about liability waivers >for those who would be interested in that and not interested in a new club >discussion. > > >Thanks for presenting your club waiver, Dana. It gives us some point >of reference for discussing pros and cons of specifics in waivers and >what the solutions might be for various organizations (of course, >location plays a large part in the writing of the waiver). > >Cheers, > >Jackie Jackie Sorry for saying your picky picky picky. The opinion on whether a waiver is necessary is about as many as the people you ask. All the lawyers say yes, they ought to know but then again they deal with this kind of thing every day. Others say six to one , half a dozen to others. I have never heard of a club being sued . It is bound to happen since more and more people are taking up paddling. I hope none of us have to find out the hard way. It is a shame that you could lose what you have for some ones else stupidity. Dana *************************************************************************** PaddleWise Paddling Mailing List Submissions: paddlewise_at_lists.intelenet.net Subscriptions: paddlewise-request_at_lists.intelenet.net ***************************************************************************
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 *************************************************************************** PaddleWise Paddling Mailing List Submissions: paddlewise_at_lists.intelenet.net Subscriptions: paddlewise-request_at_lists.intelenet.net ***************************************************************************
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