Are waivers a good idea for a group trip?

Caves and caving, beginning caving, joining the NSS, etc.

Moderator: Moderators

Are waivers a good idea for a group trip?

Postby adoucette » Nov 2, 2014 8:44 pm

Hi all,
When putting together a group trip, is it best to have the group members sign liability release waivers?
This question came up recently in a discussion and I thought I'd post here for your input. (I'm not trained as a lawyer...)
I know that most of the caves I go into require a waiver be signed to protect the cave owner. If I were to pay a guide to take me into a cave, they would make me sign a waiver. So, if I take a group of non-caver friends caving, is asking them to sign a waiver a good idea or a bad idea?
Some have told me that asking them to sign a waiver may actually imply that I have a responsibility for the trip (hence the need for a liability waiver) -- which I don't want.
On the other hand, what happens if someone gets hurt or worse? Am I legally exposed? Does having a waiver mitigate my liability?
Thanks for any input,
Ari
adoucette
Infrequent Poster
 
Posts: 10
Joined: Sep 24, 2007 9:09 pm
Name: Ari Doucette
NSS #: 60129
  

Re: Are waivers a good idea for a group trip?

Postby GroundquestMSA » Nov 2, 2014 9:29 pm

adoucette wrote:I know that most of the caves I go into require a waiver be signed to protect the cave owner. If I were to pay a guide to take me into a cave, they would make me sign a waiver. So, if I take a group of non-caver friends caving, is asking them to sign a waiver a good idea or a bad idea?


Actually, that waiver you are signing to "protect the cave owner" is probably completely meaningless from a legal standpoint. Its only purpose is to pacify landowners who are ignorant of the laws that are already in place for their protection. Other cavers believe that the presentation of a waiver adds an aura of legitimacy to their negotiations with a landowner. That may sometimes be true. My feeling is that if a waiver will get you access, sign it.

You are right that if you pay someone to take you caving, they will make you sign a waiver. Most states attach a level of liability to anyone accepting money for a service. This includes access to property, so if a landowner is going to charge money, only then is he legally liable.

When it comes to fellow cavers signing a waiver to protect you, I assume that this would be unnecessary. If an accident were to occur, some tangible example of negligence would probably be have to be demonstrated before a trip leader, or anyone else, could be considered liable. This though is a pure guess. I've never done the research since I've never worried about anyone I cave with suing me.
User avatar
GroundquestMSA
NSS Hall Of Fame Poster
 
Posts: 1345
Joined: May 5, 2011 1:32 pm
  

Re: Are waivers a good idea for a group trip?

Postby caver.adam » Nov 3, 2014 9:09 am

[Notice: I cannot give legal advice. My statements are laymen opinion based on what I have heard and read.]

Most of the cases indicate that waivers are of very limited use. You can't get someone to waive protections from something they don't know about. So if you take them into a cave and they can claim they didn't know there would be climbing on muddy rocks and you encouraged them to climb those rocks....then your waiver is probably void.

On the other hand, a waiver can establish responsibilities for group members. In example, if you state that group members are responsible for staying with the group and they later wander off...it's not your responsibility they got lost. However, that will fall apart if you are the one that wanders off from them. It can also establish policies for people to ask to stop, turn around, ask for help, notify the group if they are getting cold, etc, etc.

In some states there are laws to protect land owners from people doing recreational or scientific study. In Kentucky, landowners are not responsible for letting cavers use their cave unless the landowner charges money or has installed safety equipment that fails. This is to encourage landowners to allow others to use their land. It doesn't specifically cover guides.

In some states, such as Kentucky, partners in a venture can't [successfully] sue one another if they get hurt. I've seen some cave waivers where you actually become a partner in exploring and mapping the cave. As a partner you have equal responsibility for your own safety as the leader of the trip does.
User avatar
caver.adam
NSS Hall Of Fame Poster
 
Posts: 345
Joined: Feb 8, 2012 12:26 pm
Primary Grotto Affiliation: Louisville Grotto
  

Re: Are waivers a good idea for a group trip?

Postby caver.adam » Nov 3, 2014 9:14 am

User avatar
caver.adam
NSS Hall Of Fame Poster
 
Posts: 345
Joined: Feb 8, 2012 12:26 pm
Primary Grotto Affiliation: Louisville Grotto
  

Re: Are waivers a good idea for a group trip?

Postby adoucette » Nov 3, 2014 4:19 pm

I suppose that informing the cavers of the dangers they could encounter and that they do not have to participate if they feel uncomfortable would be the way to go.
It also sounds like a waiver may in some cases not be enough protection.
Does anyone know if asking a group of cavers to sign a waiver before a (non professional) trip could actually increase the group leader's liability?
If it would not increase liability, then it seems the waiver couldn't hurt and may help.
If it could increase liability, then the waiver idea would require further consideration.
Thanks for your thoughts,
Ari
adoucette
Infrequent Poster
 
Posts: 10
Joined: Sep 24, 2007 9:09 pm
Name: Ari Doucette
NSS #: 60129
  

Re: Are waivers a good idea for a group trip?

Postby David_Weaver » Nov 4, 2014 5:34 pm

I agree that waivers are good ideas for trip leaders. (I'd like to see some that have been vetted by a qualified attorney.) My concern is not being sued by a fellow caver in the event of an accident. I'm concerned that their health insurance provider may go after the trip leader. Having a signed document for each trip acknowledging the risks and that the caver takes responsibility for their own actions, including the use of shared or loaned equipment may transfer the responsibility away from the trip leader.

California has the Sportsman Law which absolves landowners of liability when they allow access by hunters, hikers, etc., to unimproved land. This does NOT apply if they landowner invites the people to visit his land.
CALIFORNIA CIVIL CODES, SECTION 840-848

David
David_Weaver
Occasional Poster
 
Posts: 37
Joined: Sep 6, 2005 9:35 pm
Location: Livermore, CA
Name: David Weaver
NSS #: 53731
Primary Grotto Affiliation: Diablo Grotto
  

Re: Are waivers a good idea for a group trip?

Postby KeyserSoze » Nov 4, 2014 11:04 pm

I found a good article about this that helped to better my understanding of how waivers work. It is my understanding that waivers are actually very valuable if done correctly and the people who say otherwise hold a popular misunderstanding.

This is the best summary article I have found on the topic.
http://www.sadlersports.com/riskmanagement/sports-insurance-waiverrelease.php
Article written by:
John Sadler
Sports Insurance Specialist
Sports Risk Manager
Licensed Attorney
Founder of National Sports Lawsuit Protection Association


Basically there are two parts to a waiver; first there is the Contractual Exculpation (waiver), which supposedly relieves you of liability because the signer has waived their right to sue. There is a common myth that these waivers are useless, but the fact of the matter is that they can be enforced by the courts if they are procured properly and you are in a state that recognizes them.

Second, there is the acknowledgment of risk. If a person clearly understands the risks of an activity, they cannot hold you responsible for neglecting to protect them from those risks. This does not cover gross negligent acts or intentional acts. Warning somebody of risks can be done verbally or in written form. Here is some more information about the Assumption of Risk.
http://www.legalmatch.com/law-library/a ... -risk.html
http://legal-dictionary.thefreedictiona ... on+of+Risk
This signature is really funny
User avatar
KeyserSoze
NSS Hall Of Fame Poster
 
Posts: 224
Joined: Nov 6, 2007 2:18 pm
Location: Louisville, Kentucky
NSS #: 61069
Primary Grotto Affiliation: Louisville Grotto
  

Re: Are waivers a good idea for a group trip?

Postby GroundquestMSA » Nov 5, 2014 11:43 am

KeyserSoze wrote: It is my understanding that waivers are actually very valuable if done correctly and the people who say otherwise hold a popular misunderstanding.
This is the best summary article I have found on the topic.
http://www.sadlersports.com/riskmanagem ... elease.php


I liked the Pitfalls to Avoid section.

When I said earlier that waivers were meaningless, referring to those supposedly protecting the landowner, I didn't mean that they were illegitimate, but unnecessary. Legally unnecessary, that is, since they are often important for the uninformed landowner's peace of mind. Do you know, Tim, anything more on that subject? My understanding is based on little more than a reading of state laws, and I don't want to be lying to landowners about their rights.
User avatar
GroundquestMSA
NSS Hall Of Fame Poster
 
Posts: 1345
Joined: May 5, 2011 1:32 pm
  

Re: Are waivers a good idea for a group trip?

Postby KeyserSoze » Nov 7, 2014 4:29 pm

I'm no legal expert, I've just read several articles on this subject. There is a ton of more information out there you could research online if you want to learn more. The problem with a lot of legal information is that it is very difficult to understand much of the time, which is why I really liked that article from sadlersports. I also recommend the Kentucky landowners guide to liability that Adam posted. There are two cases detailed there in which paying customers sued a land owner in Kentucky, one of which won and the other lost. The person who lost even had a waiver signed by the customer, but the waiver didn't stand because of those pitfalls.
This signature is really funny
User avatar
KeyserSoze
NSS Hall Of Fame Poster
 
Posts: 224
Joined: Nov 6, 2007 2:18 pm
Location: Louisville, Kentucky
NSS #: 61069
Primary Grotto Affiliation: Louisville Grotto
  


Return to Caving General Discussion and Questions Forum

Who is online

Users browsing this forum: Bing [Bot], Yahoo [Bot]

cron