Question about the waivers we sign

[jumper03 0]

Does anyone know of a case in which a lawsuit was brought against a DZ and the waiver was rendered null and void?

I seem to remember this being discussed awhile back, that in the case of gross negligence, the waiver would be rendered void, but has there been an actual instance where this happened?

Jump

Scars remind us that the past is real

[jdfreefly 1]

No, but I know of a couple of cases where thw waiver held up in court and the case was dismissed.

Methane Freefly - got stink?

[AndyMan 7]

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I seem to remember this being discussed awhile back, that in the case of gross negligence, the waiver would be rendered void, but has there been an actual instance where this happened?

I understand that's generally true, and I remember that discussion - it was mostly theoretical. I know that gross negligence is a very dificult case to make. I don't know of any cases in skydiving. I am not a lawyer.

_Am

__

You put the fun in "funnel" - craichead.

[Trae 1]

There's quite a few cases if you dig for them...nice an hidden in this sport due to obvious vested interests. no-one wants the blame for killing some-one through gross negligence (not much better than murder)....avoiding the large compensation payments kinda get their interest.

This is one of THE most unpopular things in skydiving ...especially for the negligent persons and their support networks. Talk about wanting to keep it quiet.
The odd false hero is lurking hoping no-one finds out that they were responsible for yet another persons death ...eg just because they were in a hurry to get to the bar.
eg just because they wouldn't pay the extra for decent maintenance
eg just because they didn't really know what they were doing.

Trying to pin down people that specialise in blaming others for their own negligence can be tricky ....slimy beggars.
Blame the dead ones ......... too easy.
Tricking whoufos and star blinded skydivers about the reality of fatal incidents is also just too easy.

[mark 102]

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There's quite a few cases if you dig for them.

Help us out. Could you point to the two cases you think are the best examples?

Thanks,
Mark

[Trae 1]

In reply to " Help us out. Could you point to the two cases you think are the best examples?"
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The waiver got beat in Australia in the mid 90's but the decision was over-ruled on appeal.

[kelpdiver 2]

the waiver merely affirms the obvious - you're engaging in a dangerous sport. A few DZs will let you jump without it, or a modified one for $500 more. I don't believe it's even necessary to win a case, but it does make it simpler.

Don't know how assumption of risk doctrine varies by state courts. Bet you'll see skydiving mentioned in some of them.

[jumper03 0]

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the waiver merely affirms the obvious - you're engaging in a dangerous sport. A few DZs will let you jump without it, or a modified one for $500 more. I don't believe it's even necessary to win a case, but it does make it simpler.

I've seen those too. I'm thinking not of up-jumpers, more along the lines of tandems and students. So an example, say a dz did absolutely no maintenance on the student gear - reserve out of date, sb's ignored, mlw frayed, holes in the main, holes in the reserve - gross negligence....student does first aff jump (doesn't know any better) and goes in. Does the waiver still protect the dz?

I guess I'm just remembering the theoretical discussion.

Scars remind us that the past is real

[Andy9o8 0]

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So an example, say a dz did absolutely no maintenance on the student gear - reserve out of date, sb's ignored, mlw frayed, holes in the main, holes in the reserve - gross negligence....student does first aff jump (doesn't know any better) and goes in. Does the waiver still protect the dz?

No, as long as the court agrees that it is gross negligence and not ordinary negligence. Your hypothetical situation would be a pretty good example of gross negligence.
Ordinary negligence - yes, the waiver usually protects the DZ.
Gross negligence or recklessness - no, that is generally not protected by the waiver.

[Trae 1]

in reply to "Ordinary negligence - yes, the waiver usually protects the DZ.
Gross negligence or recklessness - no, that is generally not protected by the waiver. "
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apparently you can't contract out of negligence... ordinary or gross. (the distinction is ???)


came out funny in engleesh but no contract legally allows some-one to perpetrate negligent acts on people in their care ...under 'Duty of Care'

[kelpdiver 2]

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I've seen those too. I'm thinking not of up-jumpers, more along the lines of tandems and students. So an example, say a dz did absolutely no maintenance on the student gear - reserve out of date, sb's ignored, mlw frayed, holes in the main, holes in the reserve - gross negligence....student does first aff jump (doesn't know any better) and goes in. Does the waiver still protect the dz?

Both the waiver and assumption of risk protects a lot less when standards of care are ignored. Thankfully these don't seem to happen very much. Reserve out of date would cause quite a mess, even if not relevent to the accident.

Most of the suits we hear about, the DZ/instructors did more than their end of the deal. The Lutz factor takes over. In the scuba world, we sometimes see deaths leading to named defendends of the dive shop, the instructor, the gear makers ... all for an incident that happened long after the student phase. Waivers work great there.

[kelpdiver 2]

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apparently you can't contract out of negligence... ordinary or gross. (the distinction is ???)

That depends on the nation in question too, law can vary. In the US the distinction is about intent. Instructors can't be expected to be perfect, never make an error in judgement. If the student screws up the exit count and the outside AFF-I falls out early, that's a mistake/outcome that can happen. A plaintiff might try to argue it's negligent, but certainly it isn't gross negligence. The language used includes noting that 'there isn't a perfect parachute, plane, instructor, pilot.' 'If you engage in a dangerous activity, those imperfections can get you.'

Giving the student badly maintained, out of date gear likely isn't accidental. Reserve card is supposed to be checked as part of the process, no? Choosing to exit the student over clouds probably fails there too.

The waiver is a contract, but both parties have to act in good faith. Gross violations by the instructor side can negate the contract.

[Andy9o8 0]

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apparently you can't contract out of negligence... ordinary or gross. (the distinction is ???)

What you say reflects the "minority trend" in the US; it would not be correct in about 42 of the 50 US states. In the majority of the US states, the present view is that a contract exempting from liability for ordinary negligence is valid where no countervaling public interest is involved and no statute (a law enacted by the legislature) expressly prohibits it. In the minority of US states (about 6 to 8 of them), there are specific statutes and/or court decisions that expressly restrict a person's ability to contract-away liability for harm created by his own negligence. I'm unaware of any US states in which you can contract away liability for gross negligence. In just about every US state, waivers are valid to protect a DZ from liability when a jumper gets hurt due to the inherent risk of the activity. I don't know what the standard is in other countries.


Gross negligence is acting in reckless disregard for the high likelihood that someone may be harmed by your conduct, even if you don't actually intend that the person be harmed. Example: driving 80 mph down a quiet residential street where the speed limit is 25 mph and recklessly (albeit accidentally) hitting a pedestrian out for his morning jog.

Ordinary negligence is less than that; it's basically failing to act according to the standard of care reasonably expected of you under the circumstances, but not outrageously so. Example: Something a lot less outrageous, like causing a low-speed accident at a 4-way stop sign intersection by making a mistake on who should have yielded the right of way to whom.
Put another way, gross negligence is negligence enhanced by outrageousness. There's obviously some grey area between ordinary and gross negligence, depending on the situation.

[Eiley 0]

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In reply to " Help us out. Could you point to the two cases you think are the best examples?"
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The waiver got beat in Australia in the mid 90's but the decision was over-ruled on appeal.

This is not likely to happen again. The plaintiff in this case used a technicality in the consumer protection legislation of the Trade Practices Act. Generally in a contract that there is an implied warranty that services will be rendered with due care and skill and that material supplied in connexion with the services will be reasonably fit for the purpose. The remedy for a breach of the implied warranty is for the consumer to bring an action to recover damages for breach of contract. A contract that sought to exclude the warranty was rendered void.

Since then the TPA has been amended to specifically permit companies that supply recreational adventure services to enforce contractual terms which seek to exclude the warranty of due care and skill implied by the TPA. It was introduced to address the increase in public liability insurance premiums and to codify the common law assumption of risk one assumes when doing an activity that is inherently dangerous.

The legislature has stated that a waiver signed in such circumstances would operate as a good defence against personal injury claims, including actions based in negligence, where the supplier of such a service has complied with the relevant safety requirements.

HTH

nothing to see here

[NelKel 0]

: Does anyone know of a case in which a lawsuit was brought against a DZ and the waiver was rendered null and void? <<<

I know this statment will not be popular with the skydiving community....

Under the constitutuion of the USA it is not possable to sign away your rights.

Regardles of what it was, or where you were when you signed it. I had a DZo tell me this one day. He said that it was the "thought that counts".
The injured jumpers signed a waiver so they think they don't have a case against me.
A good laywer can easly swade a whoofo jury, and convince a judge to through a waiver out. Period.
Regardles of past cases, or all the arguments that will be brought before me because of this.
IN the USA it is not legal to sign away your rights.Period.

So.. you go to a drop zone, and someone tells you sign this waiver, it is a legal document. By signing it you by no fault of your own, agree to sign away your right to sue. Just sign it, so you can jump. It will not hold up in court.

Regardless of neglagence, or grosse neglagence. A good laywer will have the waiver through out. It is NOT a LEGAL document, even if it was drawn up by a legal firm. Even if it were notary, and signed by witnesses. You can not sign away your rights in the USA, period. You can not sign away your rights in the USA.

_________________________________________

Someone dies, someone says how stupid, someone says it was avoidable, someone says how to avoid it, someone calls them an idiot, someone proposes rule chan

[mark 102]

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Under the constitution of the USA it is not possible to sign away your rights.

Where in the US Constitution is that? Are you speaking as a lawyer practicing in the US? Or as someone who heard something from a DZO who got the info from a FOAF?

We sign away rights all the time, don't we? Miranda waivers are routinely upheld, even when crooks should know better. Babies are routinely adopted only because parental rights are signed away, powers-of-attorney are routinely exercised. Many contracts are enforced through binding arbitration, the contracting parties having signed away their right to sue in civil court.

Mark

[NelKel 0]

Where in the US Constitution is that? Are you speaking as a lawyer practicing in the US? Or as someone who heard something from a DZO who got the info from a FOAF?<<<

It is impossible to sign away you constitutional rights. A skydiving waiver does not constitute a contract, regardless of who created it. Regardless of it it states "this is a binding contract". You can not sign away your rights.

_________________________________________

Someone dies, someone says how stupid, someone says it was avoidable, someone says how to avoid it, someone calls them an idiot, someone proposes rule chan

[Samurai136 0]

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Where in the US Constitution is that? Are you speaking as a lawyer practicing in the US? Or as someone who heard something from a DZO who got the info from a FOAF?<<<

It is impossible to sign away you constitutional rights. A skydiving waiver does not constitute a contract, regardless of who created it. Regardless of it it states "this is a binding contract". You can not sign away your rights.

The "waiver" is not a waiver of rights. You are never signing away your rights. You are entering into a voluntary contract (agreement).

Every waiver I've ever read has an Assumption of Risk clause and an Indemnity Hold Harmless clause. The assuption of risk clause exists to increase the difficulty of demonstrating negligence by the skydiving operation. The indemnity clause is an agreement you make to the skydiving operation to minimize their risk.

Usually the indemnity says something along the lines that If a party does choose to sue the skydiving operation they also agree to pay the skydiving operations legal costs plus a specified sum of money. Like $100,000.

Most lawyers would look at this and tell their client, " Yes we can Sue, but you are paying my legal fee, their legal expenses plus $100,000. You signed a contract. Do you have X dollars available right now? No? Hmmmm..."


Next Case.

"Buttons aren't toys." - Trillian
Ken

[Eiley 0]

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There's quite a few cases if you dig for them...nice an hidden in this sport due to obvious vested interests. no-one wants the blame for killing some-one through gross negligence (not much better than murder)....avoiding the large compensation payments kinda get their interest.

This is one of THE most unpopular things in skydiving ...especially for the negligent persons and their support networks. Talk about wanting to keep it quiet.
The odd false hero is lurking hoping no-one finds out that they were responsible for yet another persons death ...eg just because they were in a hurry to get to the bar.
eg just because they wouldn't pay the extra for decent maintenance
eg just because they didn't really know what they were doing.

Assuming you are talking about Australia here, I'm sorry but I don't believe you.

I have access to databases of judgments from every state, including ureported judgments. Doing searches on keywords such as 'skydive' (and all the derivatives thereof) and 'parachute' (ditto) pulls up surprisingly few cases. In fact, the only one relevant to this discussion is the one you referred to earlier, which I explained in my earlier post and which you yourself pointed out was turned over on appeal.

So I have 'dug for them' as you suggest and come up empty. Which operaters, do you imagine, have the power to 'hide' these cases from us? Feel free to PM me if you don't want to name them publicly for fear of reprisals from such powerful and dangerous figures.

Your allegations are very serious, but without any evidence to back them up, I would have to relegate them to pure fantasy.

nothing to see here

[Airman1270 0]

Regarding the statement that we can't "sign away our rights": What "rights" are we talking about? Do we have a legal, constitutional right not to be injured?

The example was made about the DZ failing to properly maintain student gear. How about the DZ that DOES keep all gear properly maintained?; However, the gear in question is a dozen years old?

Obviously, there's nothing wrong with equipment designed & manufactured in the late '80's/early '90's. Many of us made our student jumps on gear far older than this. But would a lawyer claim the DZ was negligent because it did not provide the absolute latest, top-of-the-line gear? Particularly in a case where the student was injured due to his own personal negligence, such as failing to make a turn when told to do so?

Perhaps it might be useful to agree on the correct definition of "negligence," with the understanding that the correct definition and the legal definition might not operate in perfect harmony with one another.

Cheers,
Jon S.

[Andy9o8 0]

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It is impossible to sign away you constitutional rights. A skydiving waiver does not constitute a contract, regardless of who created it. Regardless of it it states "this is a binding contract". You can not sign away your rights.

You are 100% wrong. Not gonna argue the point; let the readers of this thread consider each source.
You're wrong.

[Jeff.Donohue 0]

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It it impossible to sign away your constitutional rights.

Not true (at least in the US).

That's what happens if you, or instance, consent to a search of your house by the police (Amend. IV) or knowingly and voluntarily confess in response to a police investigation, after being warned of your rights (Amend. V). There are a bunch of other similar situations in which you can waive constitutionally provided rights, but those are usually with respect to the government, not a third party like a DZO.

What you might have meant is that you can't waive your right to bring suit, which is technically true. But it's a distinction without a difference. You can waive the right to recover for the thing you're suing for. So, for example, if I waived my claims against you, I could still sue you, but the first thing you would do is file an an answer to my complaint that attached the waiver, and my lawsuit would likely be dismissed. Additionally, I could have signed a a covenant (promise) not to sue, which would basically say that if I sued you, after having waived my rights, you could come back and (a) get the court to dismiss the suit, and (b) counterclaim for all ths costs you had to incur in hiring a lawyer to deal with my nonsense.

* * *

In most US jurisdictions (it varies by state), you can waive your right to bring suit against a third party (like a DZO) for tort claims (which is what injuries generally are), so long as the waiver is knowing (in the sense of both "I know what the risks are", and "I know that I'm waiving my rights to sue").

Some states don't let you waive "gross negligence". (Negligence is when you don't use at least the amount of care that a reasonable person would when doing something; gross negligence is when you really do something well in excess of "mere negligence" -- much less likely in any given situation, and certainly harder to prove. Examples might be: forgetting to buckle a student's chest strap might be negligence; telling a student she never needs a chest strap might be gross negligence. The line is a little fuzzy, but for the most part, for it to be "gross negligence", it needs to be extreme.)

Most states don't let you waive "intentional torts". An intentional tort could be, for example, I intended to punch this guy in the head, and I did. There are obvious exceptions to that exception, though (e.g., if you both agree to a legal boxing match).

Having written all of this, I didn't do any independent research on it and this isn't legal advice. I taught a law school research class a year ago in which I used a bunch of torts and waivers as a homework assignment, and I'm basing my response on my students' responses.

I am allergic to plaintiff's lawyers.

[Trae 1]

in reply to "Your allegations are very serious, but without any evidence to back them up, I would have to relegate them to pure fantasy."
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You're entitled to your opinion.

This is a discussion forum. ..Not a court of law.

In the real world there is no shortage of victims of gross incompetence and negligence. Just because you didn't find them don't mean they don't exist.

If you really want to know more about specifics ask a few of the operators of the larger more long term DZ's I'm sure they won't help you out.

[Andy9o8 0]

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It it impossible to sign away your constitutional rights.

Not true (at least in the US).

You "responded" to me, but I hope you realize it was NelKel who said that, not me; I (and several others) were telling him he was wrong.

You're absolutely correct - in the US, any competent adult is at liberty to voluntarily contract away his/her constitutional rights; and under most circumstances, the waiver of rights will be held to be valid and enforceable.

[Jeff.Donohue 0]

Yeah, yeah, I'm not too swift with the "Reply" button.

Sorry about that.

That's the second time in two days I did that.