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divnswoop

The next fatality waiting to happen.....

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In the U.S., as well as in the U.K., from which most of U.S. criminal law finds its origin, a criminal act requires "mens rea," which means criminal intent. Criminal intent can be inferred from the surrounding circumstances. Example, if you shoot a rifle into a passing train just for the fun of it, without specific intent to harm or kill anyone, yet the bullet does strike someone in the train, criminal intent to harm or kill the human:

WOULD PROBABLY NOT be found if the train were a freight train and you shot into a boxcar since boxcars usually haul freight, not humans. If you harmed or killed the hobo in the boxcar, and you had no idea that there was a hobo in there, you would probably not be criminally liable for "intentionally" harming or killing the hobo. The law would infer that you did not intend to harm or kill a human. You would be criminally liable for a whole host of other crimes, including involuntary homicide: involuntary manslaughter or felony murder (2nd degree murder).

WOULD PROBABLY be found if the train were a passenger train and you fired into a passenger car. From the surrounding circumstances the law would infer that by firing into a passenger car, you intended to harm or kill a human, and being that is exactly what happened, criminal liablitly for "intentional" homicide, either 3rd degree murder or voluntary manslaughter would attach.

Extrapolate that example into the present facts and try to predict what a jury would conclude in this case.

Just a little exercise from your friendly skydiving law professor,

jt



This friendly neighborhood physics professor thinks it would be very hard to prove to a jury of whuffos that any intent to harm is involved in selling a fully functional lifesaving device to someone who plans to jump from an airplane.
...

The only sure way to survive a canopy collision is not to have one.

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Means rea as to what though is also important – at least in some jurisdictions.

In the UK, the relevant mens rea in your box car scenario would be the intent to commit a dangerous and illegal act as that would form the actus reus of involuntary manslaughter. Shooting at a train is obviously illegal as at the very least it will lead to criminal damage. Any idiot can foresee that someone stood on or behind the train could be hit, thus it’s quite likely to also be considered a dangerous act.

Where both the intent to commit and commission of a dangerous and illegal act can be shown and where this act leads to death, a conviction for involuntary manslaughter may follow under the Homicide Act. So over here at least, shooting at a boxcar train could very easily lead to a conviction for manslaughter. As we see, here an intention to kill is not always necessary – just intentionally doing something which could kill.

The same would follow in the instance of a trial for gross negligence manslaughter in that there is no need to show an actual intent to kill, only an intention to commit an act which is grossly negligent. Now obviously there are many more hurdles to overcome before securing a conviction for gross negligence manslaughter, not least with regard to a duty of care, but under the right circumstances I doubt it would be too troublesome.

edit: Under the circumstances I see making a distinction between murder and manslaughter as pretty academic - either way you are being held criminally liable for someone's death and punished for your act. Both are homicide, over here both carry a maximum life sentence.

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Ya it’s sad story when people go out, buy gear that is beyond there skills with only the experience and knowledge of a 100-jump wonder, and the DZ that lets them jump the gear.

But unless someone has changed rules and I am not aware of it, the United States is still an open market society where either the buyer or sellers can do business with who ever they wish, with in the law.

Therefor Caveat Emptor
Memento Mori

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But unless someone has changed rules and I am not aware of it, the United States is still an open market society where either the buyer or sellers can do business with who ever they wish, with in the law.



I completely agree with that statement and thank you for elaborating on my point again.... ;) The buyer can buy a jump ticket from the seller. The seller is completely within his right to refuse to sell to the buyer for any reason.(within the law) That includes NOT selling a jump ticket to someone who is not experienced enough to jump the gear he wants to jump. If the seller chooses to sell the ticket to him, that's his choice. Just like it's the locals choice to try and shut down an operation because of the numerous accidents at a dz. Just like it's the family of the deceased choice to sue the dropzone for negligence in allowing the jumper to jump the gear against several recommendations by the "governing body". Just like it's the neighbors choice to sue the dz for damages that the jumper did landing/emotional distress of watching somebody die hitting their front lawn. So I don't think the rules have changed on you, and thank you for bringing up a side to my point that I was unaware of!:ph34r:

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The seller is completely within his right to refuse to sell to the buyer for any reason.(within the law)



I don't think there's any "within the law" caveat even needed for that Shawn. Maybe except for some REGULATED transactions (like real estate) or something. But as far as skydiving goes, ANY DZO can REFUSE to sell a jump ticket to ANY person at ANY time they so CHOOSE, period. "Good reason", or not. Some do!

Blues,
-Grant
coitus non circum - Moab Stone

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So this middle-aged man shows up the the drop-zone this weekend.
If this jumpers story turns out to be true...I will be writing a little more about this........



etc etc. We can only save those that are willing to listen. There's always going to be those who will lie and BS their way in life to get what they feel they deserve. This person will weed themselves out of the sport in one way or another eventually to make room for the next one.

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:)<----I find this completely offensive AND there is no need for it in skydiving!!!!



Hey, I resemble that remark! ...Unless of course you also just happened to forget to put your little ;) inadvertently after this! ;););):P
coitus non circum - Moab Stone

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you make it too easy for me!



Oh.... I read it now.... Damn... :$

I'll tell you what, I'll just set 'em up, and you hit 'em out of the park, sound like a plan? [:/]

Jeff
Shhh... you hear that sound? That's the sound of nobody caring!

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I could only shake my head when I saw him totally biff in his reserve landing (I wonder what THAT was loaded at). Needless to say he didn't get his reserve repacked, so he'll be trying to track down a rigger (or repack himself) sometime soon. As he was leaving, he made it a point to stop and tell me he'd see me at Dublin. I sure hope not...



if we see him in dublin. i will make sure he doesnt jump....

anyway.. wholly shit! i didnt even read this thread till now... but my god.. i heard this guy was tossing around my name also...

ya, i did some teaching to him ... i was his AFF instructor. i failed him on a couple jumps. reason being down to the fact that he would just run run his mouth like he knew what he was doing and wouldnt listen... so whatever.... eventually he passed...

i didnt see him jump a whole lot.. but he always brought me a cooler of beer in the back of his old white beat up limo...

honestly. i wish i had the power to pull all those aff jumps i did with him and revoke them....
i cant say im 100% surprised he did somthing like this.. but hel;l.. how ya going to know...

maybe uspa should pull his membership. hell i dont even know if he has an "a" license yet......

but ive been in this sport a while. and you get shit like this from some peeps... but you just have to deal with it when it comes up..

and hopefully if any of you have met me. someone mentioned about the cupid boogie in seb.!! well if you know me. you will know that i might be a little high energy, high strung. hyper. party hard. and skydive hard... actually it is skydive then party.. but you get the point...well you would know that im not STUPID. i dont do stupid things and i would never tell this dude "PAT" is his name by the way... that he should jump a dioblo 135. even if he did have the experience to jump it!...lol... i think the canopy is crap!.. but that is an opinion... and it is mine. so shut up...

anyway.. yes.... he probably is the next fatality to happen..... and im not surprised... not after getting to know him after he graduated.. maybe he will break his leg and learn his lesson instead of getting killed... but he is the type to blame the broken leg on something or someone else..

i would pull his license and his rating if i could... or at least turn the pass AFF skydives to fail.....\

what a dumn ass..... i hope he is in dublin.. i really do... cause if you see him and then see me see him!!!! go ahead and dial 91......... hopefully i get a chance to hurt him before that canopy does....

and no im talking shit.. but i will curse him out..... throwing around names like that to get attention to what you want... is someone that needs mental help.... or humiliated so bad that he leaves the sport all together...


thanks divnswoop. for posting this... im surprised it took me this long to figure out who this was..

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Matthew:

You know, I see stuff like this and I don't think about the criminal side. I think more about these factors:

1) Experienced skydiver (seller) selling a used pocket rocket;
2) Inexperienced student buyer;
3) Reliance by inexperienced student on expertise of seller to sell appropriate gear.

This screams to me "implied warranty of fitness for particular purpose." In many sales operations, the buyer relies on the seller's judgment. This constitutes a duty on their part to select appropriate gear.

So, you have a duty, and a breach of that duty.

When Tigger here bounces on landing because the main is way over his head (and probably level with his head at impact), you've got causation and damages.

Reputable dealers have sales contracts that will expressly disclaim the warranty of fitness for a particular purpose. These cats who go selling these things person to person without these sales papers are setting themselves up for some righteous troubles.

So, here's a question: Would skydivers object to Bouncing Tigger's family suing the seller of this gear?

Edited to add: I may have opened a whole new can of worms suitable for a new thread...


My wife is hotter than your wife.

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Doesn't the "particular purpose" have to be an unusual purpose? If a seller sells a skydiving canopy to someone that plans to use it for BASE jumping, and he knows that it will be used for BASE jumping, and he implied that the skydiving parachute was fit for BASE jumping, THEN he'd be liable. But selling a skydiving canopy to someone that would be using it for skydiving shouldn't fall under implied warranty of fitness for a particular purpose.

I took a business law class a couple months ago. The example we used was hiking boots. If the seller knows the buyer plans to use these hiking boots to climb mount everest and these are low quality hiking boots meant for strolls through the woods, and the seller knows how the buyer plans to use them, he could be liable. But if the boot tears during a regular stroll through the woods, he wouldn't be liable under that implied warranty.

A skydiving example is definitely more complex but I just don't see that particular liability being applicable. Then again, I took one law class and you might have taken a few more. :P

Dave

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and no im talking shit.. but i will curse him out..... throwing around names like that to get attention to what you want... is someone that needs mental help.... or humiliated so bad that he leaves the sport all together...


thanks divnswoop. for posting this... im surprised it took me this long to figure out who this was..



Wow, there were alot of ellipses in that message. :P
Why yes, my license number is a palindrome. Thank you for noticing.

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The example we used was hiking boots. If the seller knows the buyer plans to use these hiking boots to climb mount everest and these are low quality hiking boots meant for strolls through the woods, and the seller knows how the buyer plans to use them, he could be liable. But if the boot tears during a regular stroll through the woods, he wouldn't be liable under that implied warranty.



There are two warranties. The first is the implied warranty of merchatability. Think lemon cars here. Also, think of the example of the guy selling a used up canopy. The Kenny Reutch thread speaks of this with the used up Sabre 107 being sold.

The second is Fitness for a Particular Purpose. Going to a car discussion, if the seller knows you need towing capability and selects and sells you a car that does not have that capability, then that warranty is breached.

In your issue with the shoe, that shoe meant for Sunday strolls through the park could KILL the mountaineer. That's fitness for a particular purpose. If the shoe falls apart on the first steps through a dewy meadow, that's merchanitability. If it tears through ordinary wear and tear on the stroll that could be expected, no breach of any duty.

Skydiving IS more complex. Anyone with a negligible amount of jumps (1-maybe 800 or 1000) relies on the seller to select a canopy fit for his or her abilities. Selling a novice jumper a napkin may violate this warranty.


My wife is hotter than your wife.

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The example we used was hiking boots. If the seller knows the buyer plans to use these hiking boots to climb mount everest and these are low quality hiking boots meant for strolls through the woods, and the seller knows how the buyer plans to use them, he could be liable. But if the boot tears during a regular stroll through the woods, he wouldn't be liable under that implied warranty.



There are two warranties. The first is the implied warranty of merchatability. Think lemon cars here. Also, think of the example of the guy selling a used up canopy. The Kenny Reutch thread speaks of this with the used up Sabre 107 being sold.

The second is Fitness for a Particular Purpose. Going to a car discussion, if the seller knows you need towing capability and selects and sells you a car that does not have that capability, then that warranty is breached.

In your issue with the shoe, that shoe meant for Sunday strolls through the park could KILL the mountaineer. That's fitness for a particular purpose. If the shoe falls apart on the first steps through a dewy meadow, that's merchanitability. If it tears through ordinary wear and tear on the stroll that could be expected, no breach of any duty.

Skydiving IS more complex. Anyone with a negligible amount of jumps (1-maybe 800 or 1000) relies on the seller to select a canopy fit for his or her abilities. Selling a novice jumper a napkin may violate this warranty.



I find that hard to believe. A licensed skydiver has passed all the industry standard tests to show that they are capable of skydiving independently and making all the relevant judgment calls necessary for a safe skydive. By the time they have 100 jumps our national organization considers that they are experienced enough to become a skydiving coach, should they so wish.

The purpose of a parachute is to decerate the jumper from freefall speeds, and all current models are fit for this purpose.
...

The only sure way to survive a canopy collision is not to have one.

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