Waivers in Fishing Events

  OMG, I hate the litigousness of our modern society . I am currently embroiled (property issue) and the legal ins & outs are something I could have been happy living my entire life without knowing a thing about.
  After working for 4 different companies and seeing their trials with liability I sadly have come to the conclusion that I would be a much happier paddler by staying out of the whole mess and being a non-professional. Until I have, as was said "deeper pockets", I think I'm better off on the outside.
  Funny thing though, the service I worked for that had the worst accident actually came out the best in the legal issue and the ones here in CA that had relatively minor problems (non fatal) have been the ones that paid the most to settle. It must be a Cali thing.
  Personally, it seems like a waiver and safety meeting ought to be plenty to preclude the chances of most legal problems. Unless there is someone out there who is targeting the organization and has a plan set up to lead to a lawsuit. It has happened before and I don't know that there is any way to protect from that, without becoming increasingly paranoid.
  This thread is informative, but man is it a bummer.

  OMG, I hate the litigousness of our modern society . I am currently embroiled (property issue) and the legal ins & outs are something I could have been happy living my entire life without knowing a thing about.
  After working for 4 different companies and seeing their trials with liability I sadly have come to the conclusion that I would be a much happier paddler by staying out of the whole mess and being a non-professional. Until I have, as was said "deeper pockets", I think I'm better off on the outside.
  Funny thing though, the service I worked for that had the worst accident actually came out the best in the legal issue and the ones here in CA that had relatively minor problems (non fatal) have been the ones that paid the most to settle. It must be a Cali thing.
  Personally, it seems like a waiver and safety meeting ought to be plenty to preclude the chances of most legal problems. Unless there is someone out there who is targeting the organization and has a plan set up to lead to a lawsuit. It has happened before and I don't know that there is any way to protect from that, without becoming increasingly paranoid.
  This thread is informative, but man is it a bummer.

i clicked the link on your post that says "waiver and safety meeting " and it was a poster for sale of this:

 

own my own small business, have sat on boards for various organizations so while not a lawyer have dealt with the broad liability issues.  Waivers help but are not bulletproof.  If the group is not making big money on the operations, then that actually helps the waiver stick better.

the ideal thing for Bill or anyone who wants to cover their arse against litigious arses is to get an umbrella liability policy.  (no I dont sell insurance!)  You would be surprised at how cost effective they are.  If you have basic insurance with one company like homeowners, auto etc then adding a 1 million or more policy is fairly cheap.  the umbrella covers all the unforseen stuff.

Once you have that and are sued for getting a super model pregnant, you are covered.  Give some really bad advice to a friend who gets hurt, you are covered.  Smack around a photographer, covered.

That sounds pretty Good, I might just need some of that for everyday Life!!! ........Danglin

It may invite more liability to require PFD but not wetsuit, rather than simply state that individuals must comply with California safety laws.  Saying they have to comply with the law makes the law responsible, but when you start requiring things beyond the law if someone dies due to something different it may look like there was negligence involved in not foreseeing that possibility.

(I know this thread is about flogged to death, but since I wrote this a few days ago and didn’t get around to posting it, I’ll just submit it even though others have now touched on much of it.)

Doug, Medical Malpractice has a lot of differences to what we are talking about here. You have standards … big money hungry lawyers.

Yes, I am speaking from a medical perspective and not from legal experience, but I don’t think doctors are unique in their exposure to suits.  Injury lawyers, like hungry sharks need a kill to survive--sometimes any kill will do. Doctors are trained to look for and mitigate risk.  Lawyers are trained to spot and capitalize on unforeseen risk.

We can talk about friendship and camaraderie of NCKA, but, for instance, things can change drastically when a primary breadwinner is lost, leaving behind dependents that are now financially destitute. The survivor(s) have a strong incentive to seek a legal remedy if some other entity can possibly be impugned. (Not to mention the possibility that the survivor may have historically resented all the time her spouse had spent, apart from the family, fishing in the first place.  She may come with both barrels loaded.)

I am not trying to be a killjoy or squeeze the fun and thrill out of this exciting pastime.  But since the issue was raised by others, I think there are some things that might be done to protect event organizers. 

A derby is not like a few buddies fishing. The more an activity is organized by someone, the more liability is potentially incurred.  This is especially so when money changes hands.

I don’t think a jury would expect you to develop an onerous, three-page, fine print document and spend an hour going over it before launch.  But I do think the legal question set before a jury would be something like:  “Did the organizer do what a prudent person would do and make a reasonable effort to promote the safety of participants and inform them of the inherent risks?” Typically, a series of expert witnesses would then follow to explain what they thought “a reasonable effort” should entail.  Even Bill’s waiver is predicated on the fact that organizers “seek safety” and made a good faith effort to give warnings or instructions. So they would be looking for evidence that this minimum standard this was attempted.

You have to put yourself in your adversary’s shoes: 

Plaintiff’s Attorney: “So, prior to your back injury,  you read the part about warnings and instructions, right?  And, Mr. J, do you recall any mention of the name, Mavericks?”
 
Plaintiff: “No”.
“If you had, what implication, if any would that have had?”…

Consider the issue of PFDs:  Since the coast guard seems to think that having a PFD is a necessary prerequisite, a jury might agree that organizers should follow their lead and require them.  Since the risk of falling out of a kayak is greater than falling out of most boats, the organizers could go a step further and require that it be worn for participation, especially when participants with unknown skill levels confront the open ocean where cold water and unpredictable water/weather increases risk and reduces rescue time.  (Wearing a PFD might be less compelling in a restricted, warm water lake like Mendo.)  If this stipulation went unheeded by a participant (unbeknownst to the organizers—who, at most, could only exclude participation), and resulted in his death, I think it would be a pretty tall obstacle for a lawyer to overcome and prove negligence:  Fifty other guys would testify that the organizers had made a reasonable attempt to promote safety.

(Rather than speculating, I would think if anyone should have expert counsel in this area it should be MBK, their enterprise confronts far greater liability exposure every day.  Allen or Aaron, do they permit renters to use their kayaks without wearing their PFDs?  Do they only need to carry one on board?)

Other mitigating actions that could be taken: 

Fostering a proactive mindset towards safety:  If NCKA had a formal statement of purpose that included the promotion, not only of kayak fishing, but of safe kayak fishing, and followed it up with encouragement to read safety articles, in an actively developed “Kayak Safety” section, it would bolster the impression that the organization did take safety seriously and expended the effort to take “reasonable” and tangible steps to foster it.  This mindset and resource would be especially important prior to upcoming derbies which typically attract newcomers with variable judgment and abilities. (The current Wiki forum is a great start except its value is left to chance—there’s not anything in it now except on self rescue.)

Specific Prepping for specific launch sites: In medicine, there is the concept of ”informed consent” .  It implies that a treatment’s risks, benefits and alternatives have been adequately discussed with the patient.  Doctors are told it’s not enough to put it all in a generic document and have it signed.  The idea is that specifics were adequately discussed and any questions were entertained.  I think Allen did a nice job of prepping us with fishing tips before the launch.  Monterey is pretty safe, but at some venues I think it would also be good to mention the salient risks inherent in a particular launch site.  For instance at Half Moon Bay, the numerous reefs, and the risks they represent (you can’t assume Nubs understand the relationship between swell, reefs and increasing risk). If you are in court, I think you are better defended by fifty witnesses saying that specific safety issues were discussed, than by a signed, generic waiver.

Gauging people’s skill level:  This could be solicited on the web: skill level, classes, fished here before?  If there is someone that is clearly too inexperienced for the venue, he could be excluded or at least the risks could be carefully presented to him.  (If a participant misrepresents his skill, as Sky has run into, then the organizer can hardly be held accountable.)

My general point is that “appearances” can be quite important in injury cases.  In medical cases that go badly, if the family perceived the doctor to be caring, attentive and compassionate, they are far less likely to sue.  If they felt you were insensitive, impersonal or dismissive—you best call your attorney ASAP.

I think that by establishing an historical “appearance” of being an organization that is safety conscious, and by following through with reasonable, safety-promoting actions you can reduce NCKA’s liability exposure and mitigate any litigation that might arise from

Life, and the judicial system are not always fair. One of the signs of good mental health is that a person is disabused of the childhood myth that life should be fair: Bad things do happen to good people who have done nothing wrong.  But one of the best ways to avoid worst case scenarios…is to think about them.

http://www.paddling.net/message/showThread.html?fid=advice&tid=611472

Insurance Liability Article for Kayak Club. This policy protects the members, club and officers from liability.

Excellent post Marmite.   (Not to mention the possibility that the survivor may have historically resented all the time her spouse had spent, apart from the family, fishing in the first place.  She may come with both barrels loaded.)  

How does that saying go? There's nothing worse than a woman's scorn, especially if she thinks you killed her husband, unless of course she took out a hefty life insurance policy on him, and hated his guts then she'll be a Hog in Heaven


The ranger told me I didn't need the million dollar insurance if there weren't any cash prizes.  I wonder what that has to do with needing liability insurance.

promethean_spark  
Insert Quote
It may invite more liability to require PFD but not wetsuit, rather than simply state that individuals must comply with California safety laws.  Saying they have to comply with the law makes the law responsible, but when you start requiring things beyond the law if  someone dies due to something different it may look like there was negligence involved in not foreseeing that possibility.

promethean_spark makes a good point also, which is similar to one of the clauses in my waiver to try to keep the responsibility totally on the individual.

1.) I accept the responsibility to make my own independent decision as to whether I am qualified to participate in this activity. I assume full responsibility for myself for determining the conditions of the water, land and weather before and during this event. I assume full responsibility for assuring that my paddling and fishing equipment and accessories are proper to meet the safety needs of the conditions in which I will be participating. In joining this event, I certify that I possess sufficient knowledge, skills and judgment to determine my own activities during this event. I further certify that I am knowledgeable regarding safety equipment and its proper use and have outfitted my boat and myself as I determine in my own best interest.

Thinking along those lines  of promethean_spark's comment - I also state in my waiver: You need to wear a PDF while on the water, know how to operate you boat, swim, and self-rescue.  

No one ever gave me any hassel when I told them they had to wear their PFD, but a whole bunch of people fibbed about everything else  OR as I always say: The majority of “kayak victims” are victims of their own ignorance, and the other percentage of victims, stem from bad decision making, because they underestimated Mother Nature, and discounted the risks involved.  I think there's an awful lot of people who have just started kayak fishing, and they simply weren't aware of what they were getting into, and got in over their head.

Everyone is responsible for the decisions they make, whether or not, you are paying a kayak guide, or paying someone to charter an outing. You are the one who researched their services, and hired them for the job....so it falls back on your shoulders any way you look at it.  

You just shouldn't assume the person driving the boat has your safety first and for most on his mind, or for that matter he knows how to operate the boat. (I've been there done that, whopper mistake before.)  That's why it is vital that you inquire about the weather conditions; about the distance of the paddle; and about the back-up plans if there is a medical or weather emergency.  It would be a good idea to inquire what kind-of safety equipment they have on board, if its a charter outing, and ask if they have a skiff to cruise around to make sure no one needs assistance, etc.  It wouldn't hurt to ask if anyone else besides the captain knows how to operate the boat in case if he falls overboard or perhaps he likes drinking a little too much..

Your chances of survival increase immensely when you are prepared.  

Your safety is entirely up to you and the decisions, (or lack of them) you make.  

The ranger at the lake informed me I needed to carry 1 million dollars insurance policy in order to have a tournament with cash prizes.

FYI-this is true, we have to have this for Mendo.

After giving it a lot of thought, I kept coming back to, whose responsibility is it for my safety and the answer I arrived at was, it is mine.  I should not expect anyone to know what my paddling capabilities are; whether I am able to swim; paddle in gusty wind; or to get back onto my kayak if I capsize. Nor should I assume that anyone else has good judgment in making vital decisions. My safety and what I do, and the decisions I make to ensure my safety, is entirely up to me.

Determining the safety of a situation is the logical conclusion in everything we do in life.  At least I hope it is.  You need to access whether the situation you are placing yourself in is safe, or too risky to your well being.  Hopefully, you wouldn’t ride in a vehicle when the driver is intoxicated, because it is too risky.  The same would apply to participating in a paddling outing that is too risky for you. If I have any doubts about the distance of the paddle or the weather conditions, it is my responsibility to make inquires so I can access whether or not I feel confident in participating. I would have to make the same determination if I paddle alone.

Other people however, may not agree with my line of thinking – especially if they are paying someone to act as their guide, charter their services, or attend a paddling outing or fishing tournament someone else is organizing.  I believe this is where many individuals make bad assumptions and why organizers are sued when people get injured or die.   

The definition of “organizer” is: “To put together into an orderly, functional, structured whole; To arrange in a desired structure.”  Often individuals draw bad conclusions about the safety of the event, because someone else is “organizing it”, so therefore the  individuals assume the organizer must have more experience and knowledge than they do – so they mistakenly follow the organizers lead – and advise, without doing any of the safety leg work on their own.    They often falsely associate “organizing” with being responsible for their safety, so they simply show up, often ill prepared, because they assumed the organizer would tell them what to bring; and the organizer would determine if the weather conditions and locations were safe, etc.

I believe this is the main reason why organizers end up being sued.  If someone else is organizing it, many people assume their safety becomes someone else’s responsibility, not theirs and believe: “The organizer should have told me if there were known safety risks.”  Just like the man in Hawaii who rented kayaks and went paddling with his wife who got killed.  The man sued the outfitter who rented them kayaks, because the man thought the outfitter “should have told them about the wind conditions”….  What gets me is why didn't the man take responsiblity for himself and check on the weather conditions?  The problem is many individuals believe the things they do, are your fault....which is why people have become sue happy.

A second HUGE mistake I have seen people make is often individuals assume the guide/ leader, tournament, charter, fishing outing organizer has good judgment in making vital decisions – when in fact the individuals have no idea whether the organizer does or not.  Also what the organizer might perceive is safe – you do not.  Example: Some people in the groups I have paddled with were comfortable continuing to paddle when it began to thunder and lightning – whereas I wanted to head back in.  Some organizers are comfortable putting on outings at destinations known for extremely hazardous winds and waves. That’s a risk they are willing to take, that I am not, especially after my paddle from hell last summer.

Last summer I put on an outing in which  a group of 6 people attended, 5 of which only paddled a couple of times for no more than an hour I found out half way through the paddle, (even though they told me prior they could paddle 12 miles easily).  I should have gotten a hint, when they wanted to stop every half mile for a break….Finally at the half way point, they confessed they had never paddled for more than a hour before, and said they were exhausted, so we turned around,  which was when the wind suddenly became extremely aggressive. 

Unfortunately, none of the 5 novice individuals could control their kayaks in the gusty wind – which placed me  solely in the predicament of trying to rescue everyone, while keeping myself upright at the same time.  The only other person who had a little paddling experience headed back on his own, and left me with the other five individuals to fend for themselves, which I could not abandoned like he did.  Things can get pretty hairy when 5 people bite it at the same time, especially when the wind is blowing at 20 knots.  After that paddle I realized that I needed to evaluate more carefully the people I elected to paddle with, so I didn’t get myself killed trying to rescue someone else, who misinformed me from the get go about their level of expereince.

On the flip side of the coin, organizers often have no idea either, what paddling experience the person has who is attending the event – even if the organizer acts responsibly and asks them.  In the 20+ outings I put on in the last year – I was shocked at how many people looked me in the eye and told me they were capable of doing the outing – just so they could attend.  It scared the willys out of me, while confusing me at the same time, why people would place themselves in a situation that was beyond their capability and experience.  I drew the conclusion many individuals did so, because they just didn’t know any better,  due to inexperienced and some stretched the truth because they wanted to attend.

My intent on putting on outings was to find some one to paddle with who had a lot of experience paddling & camping at remote destinations, but what I discovered was the majority of  people who attended the outings I put on – did so, because they weren’t comfortable paddling alone, and they mistakenly thought if they paddled with a group they would be safer because someone would come to their aid if they got into trouble.

Unfortunately, if everyone in the group is thinking the same thing, that someone else would come to their assistance if they get into trouble, it can turn out to be like my paddle from hell experience if everyone is a novice paddler, and the weather conditions suddenly turn bad. The larger the group is, the higher the risk becomes.

As an organizer of an event, I realized I also needed to be responsible for my safety, which entails accessing the high risk factors there are paddling with a group of novice paddlers and with people I have never paddled with before who I didn’t know what their paddling experience was.

Even though I stipulated the level of the paddle was for intermediate paddlers, and you needed to be capable to paddling 25 miles, for 6 hours – people still wanted to attend the outing, like at the Santa Margarita Lake, and Lake Castaic paddles.  One woman got angry at me, (who I had paddled with several times prior, who wanted to attend the Lake Castaic paddle), when I tried to explain to her the shape of the lake didn’t have any easy crossover access, and it wasn’t suitable for a novice paddler.  I lost a paddling companion, but may have saved her life and mine for that matter.

The morning on the  Lake Castaic paddle, started out as smooth as glass, then around 10:30, the wind was blowing erratically from all directions, and so hard, you couldn’t stop paddling – plus there were 2’ white caps to contend with. I kept thinking to myself, how glad I was that I stuck to my guns, and made the right desicion when I told her she couldn’t come.

It seemed the more stipulations I made, the less people paid attention to them… As an organizer of an event – even if you make long lists like I did, which was basically to CMA, what KZ said is true to a degree, “ Waivers can require anything they want, but if people don't follow them, then they aren't worth the paper they are written on”, Even though people don’t want to abide to my rules, I still need to act responsibly to try to protect myself against the individuals who think I am accountable for their actions and decisions.

While it would be nice to go around with rose colored glasses on, the bottom line is: we are all responsible for our actions and decisions we make. As much as I would prefer not to “deal with it”, and focus on just having fun, I need to acknowledge there are a lot of people out there, who don’t want to be responsible for their actions, and decisions, and who want to blame their mistakes on someone else.  It’s unfortunate, but true.

One of my instructions once told me, once you are no longer a dependant child and become an adult, the only time you’re not responsible for your actions is if you are mentally impaired, or if someone is holding a gun to your head, and forces to you do something.
 
If someone doesn’t want to cover their ass, that’s their decision. Often people don’t want to hear advice – or they may choose to make light of signing a waiver – up until they lose their shorts, their life savings, their house or their life that is.  Then they won’t think it was so funny or a stupid idea any more….but by then it will be too late.

I want to thank everyone who shared their excellent thoughts and opinions, which I gained a lot of insight from.

My motto is: Be safe, first…. then focus on having fun.  I personally can’t have fun, if I don’t feel safe.

Besides that, I have too much to lose, and I am too old to start all over again.

A similar scenario would be having sex - Yes I would agree - while I'd much rather focus on just having fun I need to take care of myself, and practice safe sex so I don't get AIDS which could kill me or get me pregnaunt. A man also needs to protect himself, so he doesn't end up losing his shirt paying for child support for 25 years....

The same applies for putting on a fishing outing or tournament.  We need to take care of ourselves, even though it can be inconvenient at times, and not as fun as being foot-loose and fancy free, like we were when we were kids. But unfortunately, we aren't kids any more....

I would like to see any case law on kayak clubs getting sued for accidents. Anyone have access to Lexis/Nexis?

Also what is the legal definition of a "club"?

1. Unincorporated Association

A. What Is It?

● A group of individuals coming together to carry out a mutual activity, (fishing) in common language a club. The group usually draws up a set of rules to regulate the relationship between the members and will usually provide for a committee to run the club’s affairs. (Administrator - Moderators - Wiki Editors) 

 An unincorporated association is the most common structure for sports clubs as it is the simplest and most informal way to establish an organisation. Put simply, any sports group or club which is not a company is an unincorporated association, whether its members are aware of it or not!

http://www.hg.org/articles/article_1139.html
 read full article

I will get a lawyer to look at it but if this was the case then every social website on the planet would be a club. I do not see how this is possible.

NORCAL is different than a lot of the on line chat groups.

The big difference is: NORCAL has outings - tournaments - attends tradeshows to promote the "club" - It sells teeshirts - has stickers which everyone was allowed to vote which design won - It recently voted on the number of days to attend for the Islander outing.

It discusses (and  some members are also involved with) fishing politics.

NORCAL was involved in some kind of directory of destinations I read on another web site, that I think Sean also made reference to.

Just because you don't presently charge a membership fee doesn't mean NORCAL isn't legal considered a club or a group. 

There are a few rules also: which may or may not be posted any where on the web site.

No advertising - though a number of people do via their websites and automated signature.
I think no skyjacking - oops I meant hijacking threads is a rule.
I think there's a rule about putting a post in the wrong category also.

I am not aware of any of those rules, in fact I am not sure we have any rules other than "Don't piss Bill off"  Seriously I don't think any of those rules are outlined anywhere, but what do I know, I just run the site.

Again I don't think you and I debating this is going to help much but there are literally millions of websites that do exactly what we do. There is probably not a forum on the web that does not have voting and contest. Most sell shirts and stickers. People talk politics (fishing and otherwise) on billions of sites. So it seems ridiculous to me that some like Google could get sued because someone went to a pickup soccer game and got hurt cause they followed a link on a Google Groups site - like this one http://groups.google.com/group/sjsoccer?lnk=gschg

I think I would use the term patently absurd.