Waivers in Fishing Events

so anything I say may be considered pure hogwash.

 

What I'd do:

Not require the PFD but have a safety meeting prior to the start of the event and have a stipulation in the waiver saying the participant has attended the meeting and understand their responsibilities as a safe boater. Make them write out the complete sentence then initial it.  Personally I think it's lame to get that technical but you never know how far some people would go to wreck someone else's life for their own stupidity.


FWIW a friend of mine built moto x jumps on his property in hollister, biggest one was gonna have a 90' gap so his pops consulted a lawyer to see if they could come up with a waiver in case anyone got hurt.  The lawyer pretty much said waivers are not much protection and in some cases they are worse off having one because it basically says that you (property owner) acknowledge that a dangerous activity is goin down and you are letting it happen. 

I know there is a law in CA about the liabilities of dangerous sports. Skateboarding made the dangerous sports list a few years ago and we now have an explosion of public skate parks. Previously no municipality would build them due to liability fears. I wioll try to find more info about that this evening.

You made some very good points too KZreelrod -  Your comment "  Waivers can require anything they want, but if people don't follow them, then they aren't worth the paper they are written on, " made me stop and think about all of the outings I have put on, in the past year.  

I wrote an 8.5 x 11" page of safety issues to try to increase the safety of the outing, but I found that the majority of the people didn't bother to read them, and if they did read them, they didn't pay attention to rules, or the safety precautions, which is the main reason why I have recently switched from having "anyone" show up at an outing, to being selective about who I will go with. It is also the reason why I brought up the issue about if wearing a PDF is optional or mandatory during a fishing tournament.

John's comment about, "kayak fishing is a growing sport and there are a lot of new people getting into it and taking to the ocean before they have been trained on how to deal with falling off a kayak. proper ways of flipping the kayak back over, re-entry onto the kayak.", was completely true with the 20+ outings I put on in the last year.  

I have a stipulation in my waiver that you have to know  how to operate your boat, how to self-rescue,  and how to swim, (and wear a pdf), and a large percentage of the people who participated in the outing did not know how to self rescue, I found out several people didn't know how to swim, and a couple of people never paddled before. (They actually told me they did too because they wanted to attend the outing.) Some of the outings were for 24 mile paddles, which half of the people who attended couldn't paddle more than 5 miles.  So KZ your point about people not following the rules, it so true in my recent experience, when I began paddling with other people a little over a year ago.

So where does this leave people who are brave enough to put on an outing or tournament?  Feeling pretty dang vulnerable I would imagine.

Once during one of my outings, a woman I never met before said to me, "Do you think just because I signed your waiver, that would keep me from suing you?"

The " Waiver " thing has been " Bug " that I've been trying to figure out and still don't have solid

      answers...

 I've been told " You can't waive your rights before event ",  I'm not sure this actually true because

by signing that you certainly have diminished them,

 I've signed people out on " Against Medical Advice " on my job with bones sticking out of their body...

 The wording on these forms is very similar to waivers we signed @ events and such....

 
I talked to my Laywer-In-Law ( mostly Death-Row ), his take was it comes down to common sense,

 If " Gross negligence is involved " then certainly the waiver is worthless, but, if you have covered the

 points of safety and hazards, that would have to be considered in a jury trail. What else can you do other than

not doing these events, and that would be a shame.

 Being Ski Resorts and many other high profile operations use waivers, there must be something to them.

 My Lawer-In-Law suggested a Personal Injury Attorney would know this answer better than anyone.


 Kieth from California Canoe & Kayak has told me he has been Sued Twice...

 With Waivers and Insurance in place that cost him thousands a year, along with permits for waters he

operates in.

 Each time he had a Payout to make it go away, both instances from his story, it seemed most obvious

 that the persons in question not only did not listen to the guides, but had brought injury to themselves

outside of the actual kayak event!!!! Still his lawyer said it would be best to pay them off, even after a

costly fight.

 So where does this leave us all as wanting to put on events for a little sporting competition...

  I Have no Idea   ............ Danglin

The advantage about NORCAL, as oppose to other clubs I have been a member of, is the way NORCAL has the hookups set up, appears to work better than the other clubs. 

If someone "wants company", it isn't the same as someone  "putting on a fishing outing", which places the organizer of the fishing outing at greater risk of being sued.

When people get together  under the pretense, that they "are open to company", there is no need for anyone to sign a waiver like they do in other clubs, because no one is in charge, and there isn't a "leader" which encourages more people to post hookups.

But once you "organize" an outing, by specifying a date, launch time, campground, and the posting the details it places you in a more vulnerable position of being sued.  Also, the way the hookups are on NORCAL, allows a lot of people to get together, more often, than it does, when someone sticks their neck out by organizing an outing.

No one has a problem attending the outing - but few people want to be held liable by putting on an outing.

The disadvantage of both is very often you have no idea what the other persons paddling experience is, who will show up at the outing, which can place your safety at a much higher  risk.  The same applies to a fishing outing which is open to anyone who pays the fee.

Does anyone ask the person they are paddling with beforehand if they can handle their kayak in large swells, or if they know how to get back on board if they capsize?

Do you have any idea what kind of physical condition another person is in which might prevent them from paddling in high winds, or for a long distance?  And if they can't  paddle in high winds, are you able to tow a 200 lb. (combined total weight boat and passenger )- in gusty winds?


It can be sticky any way you look at it.

There is no waiver on the planet that will protect you from gross negligence. If I decided to make an event fun by poking holes in peoples boats while they where miles offshore, there is not a waiver on the planet that would protect me. However if someone gets attacked by a GWS I think it would be hard for someone to find fault with the event.

Notice I said hard to find fault, not hard to sue. Anyone can sue and sadly the cost of fighting and potentially winning usually out weighs the pay off cost. I think the lawyers set it up that way 

As a point of reference I have attached the standard NCKA waiver to share what I have been using. I make no claims that it is good of course 

I found the law I was referring to. It looks like it only protects public entities. I have not be able to find the full text online but this is a snipit of it from some litigation I found:

Section 831.7 provides in pertinent part:

      “(a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity, including any person who assists the participant, . . . for any damage or injury to property or persons arising out of that hazardous recreational activity.

      “(b) As used in this section, ‘hazardous recreational activity’ means a recreational activity conducted on property of a public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator.

      “‘Hazardous recreational activity’ also means:

      “(1) Water contact activities, except diving, in places where or at a time when lifeguards are not provided . . . .

      “(2) Any form of diving into water from other than a diving board or diving platform . . . .

      “(3) Animal riding, including equestrian competition, archery, bicycle racing or jumping, mountain bicycling, boating, cross-country and downhill skiing, hang gliding, kayaking, motorized vehicle racing, off-road motorcycling or four-wheel driving of any kind, orienteering, pistol and rifle shooting, rock climbing, rocketeering, rodeo, spelunking, sky diving, sport parachuting, paragliding, body contact sports (i.e., sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants), surfing, trampolining, tree climbing, tree rope swinging, waterskiing, white water rafting, and windsurfing.  For the purposes of this subdivision, ‘mountain bicycling’ does not include riding a bicycle on paved pathways, roadways, or sidewalks.

      “(c) Notwithstanding the provisions of subdivision (a), this section does not limit liability which would otherwise exist for any of the following:

      “(1) Failure of the public entity or employee to guard or warn of a known dangerous condition or of another hazardous recreational activity known to the public entity or employee that is not reasonably assumed by the participant as inherently a part of the hazardous recreational activity out of which the damage or injury arose.  [¶]  . . .  [¶]

      “(5) An act of gross negligence by a public entity or a public employee which is the proximate cause of the injury.”  (§ 831.7, italics added.)

So I guess the city is protected but not me 

NCKA is a family that has had open arms. I got stuck with work issues this weekend but I drove 3+ hrs just to hang out for a little while and dive for a bit. I think that most NORCAL kayak fisherpeople have a different attitude. I have seen the scene change so much since I got my first boat in 98/99, but the attitude hasn't been altered. Yea there are loners, there are savages, but everyone is always friendly.

Someone once tried to sue a family friend after crashing a dirt bike on his property while tresspassing. Two weeks later the person drowned in a canal a couple of parcels away. Apparently, he was trepasssing again and drove in to the canal. The farmer and two workers that witnessed the crash chose to not attempt assistance because they were afraid of being sued also. In the police report it was claimed it was unsafe to offer aide. 

I wish no harm on people, but sometimes it all works for the good guys.

-Brian G

  I think you hit it right on the Head Bill

 The whole Damm thing is meant to be ambiguous, There is no clear right or wrong, just " Deep Pockets "

 as to have to litigate, and that will always benefit one population...

                       

 I guess that is why the Law schools are full .....

 

And Bill,  I hope you don't think I criticizing you because I'm not. I feel you are doing everything possible to make

these events safe and fun and I Acknowledge you for that..

 This forum, people and events has been the best thing ( outside my Family ) EVER!!!

As FrankSwimming Says " Love this Sport ".....

  I love it so much, I was thinking of working myself towards being a guide....

 Reality of time management, time for my family, time for me to enjoy fishing were issues to consider....

 Then the Big One... Liability, Just not worth it , Quite a relief actually... Back to fishing....

 But, I began to wonder how well NCKA/ you, anyone doing this to promote this sport was covered....

 It's just a shame that we just can't go fishing, have friendly competitions like we do and have fun....

 Reality says, as more people become involved, so do the complications and odds of something going wrong...

 Another reality,  what the Hell can you do about it?  People are going to do what they do and in the end..

 The Universe pays them back............

 And Bill,  You've got plenty of Good comming your way..... ...... Danglin

paddling out towards deeper water , maybe 50 feet,  he drops his rig down with strong 40lb test line, great for lings he thinks as he hits bottom. a ling takes the bait and bob starts cranking upwards, halfway up the ling fights and its a big one. the ling is maybe 20 lbs.

as shaky as bob is he keeps cranking the fish up and a swell hits him from the side. he falls off and grabs at the kayak with one hand but misses. the line from the fishing pole tangles around a leg and the ling heads to the bottom with bob in tow. the ling does what lings do and holes up at the bottom. bob is still tied up and cant do nothing about it. he cant see and everything is happening too fast.
[/quote]


So, in this case, would the ling win the tournament?

No offense taken Danglin. Sadly I love to debate legal issues even though I have little love for the legal system 

I will most likely have to get insurance and perhaps even form an LLC to protect myself from a lawsuit, protect to the point of it not taking my house.

The LLC is not a bad idea,

The only thing, among others I'm sure... You have to actually act like a company with quarterly meetings,

stock holdings and stuff like that, which would be no problem with characters already involved.

 What Lawyers like to do to a LLC is First " Pierce the Corporate Bubble ", basically, try to prove your not a

company as to come after you as an individual.  Again, as I understand it, you can combat this by having

 quarterly meetings, minutes and such,

which should also include Beer and Fishing  .......Danglin

Here's a a little of my waiver.  You might want to add more of clause 2 and clause 3 to your waiver Bill, in the event you need to call in a search and rescue team, or if someone needs emergency medical treatment. You are welcome to copy any part of this.

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.

2.) I understand that kayaking, fishing and camping activities involve risks of harm to myself; my companions and my property. I assume full responsibility for all of the risks involved in participating in this activity whether or not I know that the risk exists. I acknowledge I am responsible for any loss, or damage to my equipment or injury that might happen to me on the way to, and from, and during this event. I acknowledge I will assume the risks involved and will be totally responsible for taking those risks, and for the cost of medical and rescue services.

3.) I also understand that among the risks inherent in these activities is that I may require rescue or medical treatment. I hereby agree that I consent to any rescue, hospital care, or medical or surgical diagnosis or treatment to be rendered to me for any illness or injury that might arise from my participation in this activity. I understand and agree that I am solely responsible for all charges for such medical services and rescue operations. I will pay those and reimburse any person who has expended money for such medical services or rescue operations.

KZ also had a good point. "Must not consume alcoholic beverages while on the water".  If  drinking is not permitted during this event is not stated in the waiver, that opens up a huge can or worms of being sued. 

The men (and the few ladies), in the fishing community might be really nice group of people, but look at all of the wrongful death lawsuits you hear about on the news, the families, and wives bring against the person who killed their spouse, or loved one. 

They might be the nicest person in the world, up until they think you were in some way responsible for their spouses death who was the sole financial provider for the family, which now puts them in financial hardship.

Shoot look at the way some people suddenly switch from Dr. Jeckle to Mr Hyde, when something happens that pisses them off, or they don't agree with, then multiple that reaction by 100, if they think you were some how responsible for killing someone they love.  Kind-of scary if you ask me.

i think its all good info what i have learned here. i once used to ride with a motorcycle club who was sued by a man's family after having an accident. the riders of the club all testified that the man came willingly and did not have a membership to the club as well. the court ruled that if the ride was organized by a club and it was an "official group ride" then it was the club's responsibility. my friend who was an officer of the club left after all of the drama and was pretty distraught over it. it was never clear what happened as we stopped talking soon after but the whole thing made life hell for many people.

the guy who died on that ride joined the ride which was organized by the club who's members and friends basically invited people via email. people were told where and when they were meeting and people just showed up. nobody thought it would ever become an issue and though there were accidents in the past it was each man on his own for the most part.

the court recognized this as being an official club ride and therefore it was bad news for the club members, primarily the officers.

the end chatter from the members was that there would be invites sent out saying something like :

"anonymous members who are not part of any motorcycle club are riding and if you happen to be on the same road at the same time you can go this way and meet at this time if you happen to arrive at said location coincidentally..."

basically taking the group out of the group activity.

its sad how something so innocent and fun can turn into someone's worst nightmare though and i think that is why organizations must make every effort possible even if its silly to cover themselves in every way possible.

it just ain't getting any easier to have fun.

my family does not typically have any issues with getting sued but my cousin in LA was involved in an accident where a pedestrian was killed and she was sued for absolutely everything she had and lost. it didn't matter that the pedestrian was crossing in the wrong place on the street or how she didn't look for traffic at night before crossing. All of this was pretty much irrelevant in the court's eyes. the only fact that stood out was she killed a pedestrian.