My attempt at a general explanation of waivers

[lawrocket 3]

Just a few weeks after taking the Bar exam, my girlfriend and I decided to do something “life affirming” – a tandem skydive. As we arrived that morning, I felt the nervousness and fear that would be a part of any rational person who decided to hurl himself at a planet from two miles up. I figured that the dropzone staff would help ease this fear. To my surprise, they did not. Instead they flooded me with information on the risks.

I was directed to a room to watch a video. This video depicted a gentleman who looked like he was on vacation from ZZ Top explaining that tandem skydives were experimental, used experimental technologies, and that I stood a legitimate chance of dying or being seriously injured by doing what I planned on doing. So much for comforting and reassuring me…

Following this video, I was introduced to something that brought a gleam to my legally educated eye – a masterpiece of clarity and simplicity. It was the “Waiver,” which may be titled, “Release of Liability,” “Assumption of Risk” or any combination of these terms.

It’s amazing that even with my career path, I really had not considered the “waiver” or the ramifications of it.

This document was beautiful. I had to initial every paragraph, sign it at the end, and they even videotaped me reading the final paragraph about how I am aware and informed of the risks and knowingly waive my right to sue for negligence.

I understood that this was merely a step of my application to be a part of the club of skydivers. If I didn’t want to waive any and all liability for negligence against the dropzone, the staff, the owners, the pilots, the plane manufacturers, other skydivers, and even the bearded man in the video I watched, I would not skydive. Period. So I read it, initialized it, signed it on camera, and was ready to proceed with the next step – instruction. Yes, the nice lady at the counter didn’t let me pull any fast ones with the execution of the document.

In today’s litigious atmosphere, I figured out that the sport of skydiving has become very sophisticated in limiting its liability. If it was not sophisticated, we would have no sport for it would have been litigated out of existence. We all know that when people get injured or killed, they or their families often seek to sue those who they believe may be responsible. Lots of people get hurt and killed in skydiving, which means that there would be lots of lawsuits.

The skydiving industry has learned to avoid weekly lawsuits by way of that noble document – the waiver. Everywhere you go, you will sign a waiver for the privilege of jumping out of the dropzone’s aircraft.

For you newbies or those looking into trying a jumpt, let’s say you did a tandem jump in California and upon your return to Colorado you want to skydive again. The new place will have you sign the waiver. It’s a part of life. Every place will make sure that you waive anything against it.

Unlike any other aspect of the sport, the waiver is not subject to the, "No shit, there I was" stories after the beer light came on, but waivers are as much a part of the everyday skydiving operation as a parachute. Only people like me would find that interesting around a bonfire. If you've read this far, reply to it by telling me what a boring individual I am.

Let’s get down to basics.

What is a Waiver and What are You Waiving?

A “waiver” is nothing more than a voluntary and intentional relinquishment of a known right. Under the law, if someone makes a mistake and causes you harm, you have the right to sue that person to recover damages. For example, if you are in a car accident because the other car ran a red light, you can sue the other driver for all of the damages you suffered. This is your right.

As anyone in the military can tell you, rights can be waived. By signing the waiver, you are affirming that you are voluntarily, knowingly and intelligently waiving your right – and your family’s right – to recover any damages that result from an injury you suffered due to the negligence of another person.

Note that I use the term “negligence.” Negligence is merely the unintentional breach of a duty that causes harm to a person, i.e., breach of a duty not to hit another car on the road. In the skydiving world, let’s say your tandem master failed to take winds into account and you end up landing after hitting the side of a house. That would be “negligence” that resulted in your broken legs, and you will have waived the right to sue the protected people for that.

However, there are other things that can’t be waived. You are only waiving negligence. If the tandem master intentionally flew you into that house, then you would have an argument that the waiver did not apply. That isn't negligence.

Against Whom does my Waiver Operate?

The people you are waiving the right to sue typically include, but are not limited to: the dropzone business, its owners, agents, employees, instructors, jumpmasters and pilots, the owner of the aircraft, the manufacturer of the aircraft, the lessee of the aircraft, the maintainer of the aircraft, the owner and/or of the land used for the landing area, the U.S. Parachute Association and its members, the City, County and State and their employees or agents, the manufacturers, maintainers, riggers and sellers of the parachute equipment, anyone remotely associated with the business of skydiving, and other jumpers.

Basically, you waive your right to sue everyone under the sun who is related to skydiving. The waiver will, however, spell them out. If you get hurt, it is on you.

What Makes a Waiver Valid?

For a person to properly waive risks, they must waive “known risks.” A waiver needs to tell you what you will be waiving and why. The bearded man in the video told you that you could die or be seriously injured skydiving. He told you that tandem is experimental, the parachute could fail, the harness could fail, etc.

Okay, so you’ve been told how and why you could be killed or injured. You are told again and again. The waiver itself will probably have in bold, underlined and in all caps, “THE SPORT OF SKYDIVING COULD CAUSE SERIOUS INJURY OR EVEN DEATH.” You likely have been told that skydiving is “inherently dangerous.”

And the fear-mongering would - and should - continue. The danger of the sport is reiterated again – maybe in every paragraph. And every paragraph is initialed. This means that you will have no argument that you did not know that skydiving could kill you or hurt you. That videotape of you executing it is for use at trial as evidence.

How is Something like that Legal?

If you ask this question, you are the person to whom waivers are mostly directed. But, to answer the question..

First of all, a waiver is voluntary. In most states, the courts and the legislators do not view skydiving as a necessary activity to human existence, although a number of experienced skydivers may disagree. It is an activity that you choose to participate in and you can take it or leave it. It is therefore voluntary on the basis that your participation in the sport in voluntary.

There are circumstances when waivers like this will not be allowed. Such a waiver will typically not be allowed in certain circumstances of medicine, for example. The reason is that courts do not think that it is fair to make a person, who will perhaps die from a gunshot wound in minutes, face the choice of either dying or signing away rights. A court would not view such a waiver to be “voluntary" since the choice is "waive or die."

However, anyone who has had a voluntary operation knows that the doctor will have you sign an “informed consent” form after explaining the procedures and risks. You aren’t happy with the risk of permanent brain damage from anesthetic issues? Then the plastic surgeon will not perform that facelift. He will not accept the risk of malpractice.

Skydiving is like the facelift analogy – nobody “needs” to skydive any more that anybody “needs” a facelift. It comes down to bargaining power – you and the dropzone have equal power to agree. If you don’t like the waiver then the dropzone loses a paying customer and nobody’s rights are violated.

The second reason it will hold up is that it is easily understandable. The waiver will not have any fine print to it. You will find that the waiver is a pretty standard typeface. In fact, more controversial sections of the waiver will be in bold, i.e., “I will not sue or make a claim against the dropzone for damages” and “I am giving up important legal rights.” Putting this stuff in fine print can make the waiver void. This goes back to “knowing and intelligent” waiver.

The third reason is that the waiver uses clear and simple language. It does not contain legalese or other strange terms. The sentences and paragraphs are easy to understand and they do not mix up subjects. If the warnings are written so strangely only a lawyer can understand them, then a waiver will not hold up because you probably did not understand them.

The waivers are pretty much in-your-face about the dangers and you will probably initial next to every paragraph. Because they are so general and clear, you will likely be surprised at how short they are.

What if I Sue, Anyway?

Besides pissing off most skydivers around the world, you can probably expect to have your case dismissed. The waiver probably has an attorney fees provision in it, which means that you run the risk of paying the dropzone's attorney fees if the case is dismissed.

There is a good chance you will win - there are some highly intelligent and sneaky lawyers out there. But, don't get your hopes up.

Conclusion

This isn't intended to be legal advice. Obviously, some places may not view things this way. This post is just my marginal non-legal explanation for how this stuff works. This is particularly useful for you folks who want to do your first jump - you don't just show up and off you go.

For the newbies, hopefuly you'll learn more about the bearded man in the tandem video and the cool stuff he's done - as wel as why he includes "Uninsured" in the name of any of his companies. That's another legal topic, though.

My wife is hotter than your wife.

[Sockpuppet 0]

What is it with lawyers and writing fecking long stuff..

------
Two of the three voices in my head agree with you. It might actually be unanimous but voice three only speaks Welsh.

[Jewels 0]

Of course, at our dz, the waiver contains a provision which allows you to waive the waiver upon payment of consideration in the amount of $300, or something like that. I would love to know if anyone has ever paid it. And if anyone tried to pay it, would the dz really take them up after receiving the payment, given that they are now on notice that if anything goes wrong, they are dealing with someone who has paid for the right to sue?

These are things I think about. To me, this means that I am spending too much time reading waivers and not enough time jumping!

TPM Sister #102

[jojo69 0]

I have read your post and feel that I should sign and inital it. I enjoy your explanations and thank you for sharing your knowledge.

[xlh883 0]

Me thinks you were at Perris Valley! As soon as I read the part about the video tape, I started laughing. Welcome to our world!

David

[kallend 2,148]

What a boring individual you are.

...

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

[NWFlyer 2]

Quote

Me thinks you were at Perris Valley!

Elsinore does it too.

"There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." -P.J. O'Rourke

[Revillusion 0]

Quote

"Uninsured" in the name of any of his companies. That's another legal topic, though.

And a good one at that. Please put that one on the back burner for a future edition of "law for dummies".

VIRTUS JUNXIT MORS NON SEPARABIT

[Eule 0]

What a boring individual you are.

I would vote for putting this article (with just a little bit of polish) into the "info for n00bs" article section on this site. That and fifty cents will get you ten milliseconds of lawyer time. :)

Eule

PLF does not stand for Please Land on Face.

[airtwardo 7]

If you've read this far, reply to it by telling me what a boring individual I am.

***

You are ...and thanks for putting the topic in a more 'friendly' human speak terms of explanation.

I always find it amusing how all the dime store lawyers chime in at the beer tent about how a waiver is meaningless for the most part...and proceed to pick apart 100 instances that someone could / should have sued......because of some 'certain' wording not pertaining to some 'certain' possible event that resulted in an injury or death.

Personally...it's an assumed risk...as you stated this is NOT something you are compelled to do as a matter of continuing existence...there for I rarely even READ the waiver anymore....I just sign away, and have made it CLEARLY known to my family and loved ones that should the worst case actually happen..they are in NO WAY to even 'explore' the possibility of taking any type of legal action against anyone even remotely involved...even if there is clearly negligence on the part of another.

I paid my dime knowing the chances !

That's just the way I want it...

~ If you choke a Smurf, what color does it turn? ~

[Guest 1010]

Quote

There is a good chance you will win - there are some highly intelligent and sneaky lawyers out there. But, don't get your hopes up.

LR, this is missing a "not", or has an extra "good", right? Excellent post. Nothing boring about waiver's to plaintiffs' counsel, I am sure.

You can have it good, fast, or cheap: pick two.

[Guest 1010]

> I rarely even READ the waiver anymore....I just sign away

I glance through them pretty fast myself ... usually find something humorous - SDAZ has a blurb about skydiving serving no socially redeeming purpose and I've seen the blurb about reading/writing/comprehending English signed by those ... not knowing a bit of English ... oh well they are skydivers!

You can have it good, fast, or cheap: pick two.

[airtwardo 7]

Quote

> I rarely even READ the waiver anymore....I just sign away

I glance through them pretty fast myself ... usually find something humorous - SDAZ has a blurb about skydiving serving no socially redeeming purpose and I've seen the blurb about reading/writing/comprehending English signed by those ... not knowing a bit of English ... oh well they are skydivers!

***

I guess I 'should' scan them...I got burned a few years back.

One paragraph in the middle of the 5-6 page waiver
said something about agreeing to buy the dzo a case of beer because you are not reading this, just initialing everything......I bought Green Bottles!

~ If you choke a Smurf, what color does it turn? ~

[hookitt 1]

Quote

I bought Green Bottles!

Was there anything in the Green Bottles?

My grammar sometimes resembles that of magnetic refrigerator poetry... Ghetto

[airtwardo 7]

Quote

Quote

I bought Green Bottles!

Was there anything in the Green Bottles?

***

Not for LONG!

~ If you choke a Smurf, what color does it turn? ~

[lawrocket 3]

Quote

What a boring individual you are.

Thanks, professor.

I guess the next issue is whether I am more boring than quade...

My wife is hotter than your wife.

[mjosparky 4]

Quote

Quote

What a boring individual you are.

Thanks, professor.

I guess the next issue is whether I am more boring than quade...

HaaaHaBaahaaa(I just spit Gray Goose on my key board)

My idea of a fair fight is clubbing baby seals

[Squeak 17]

Quote

Quote

Quote

What a boring individual you are.

Thanks, professor.

I guess the next issue is whether I am more boring than quade...

HaaaHaBaahaaa(I just spit Gray Goose on my key board)

You are a Grey Goose


our waivers take up less than one page, and they are written in plain english ( they have to be)

You are not now, nor will you ever be, good enough to not die in this sport (Sparky)
My Life ROCKS!
How's yours doing?

[Airman1270 0]

...In today’s litigious atmosphere...
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Whose fault is this?

Why is such a complicated waiver necessary in the first place?

Let's assume an accident occurred, one which could reasonably be determined to be somebody's fault. (Examples might include an impaired tandem instructor, putting out a student at dusk in high winds, etc.) In such a case, a lawsuit might be a reasonable course of action. But why would it be necessary to name a bunch of other ancillary people in the suit?

What purpose is served by naming the pilot, the equipment manufacturer, the manifestor, or the owner of the landing field?

Many lawyers choose the profession in response to some altruistic desire to pursue what they describe as "social justice." Their efforts frequently result in an increase of lawsuits against businesses or other entities, not because they did a bad thing, but because someone else did a bad thing and they were unable to prevent it from happening.

"Sexual harrassment" law is a prime example. If an employee treats another employee in a manner which would have been described not too long ago as "rude behavior," it is now possible for the owner of the company to face the hassle of court action. Businesses are now pressured to waste time, money, and energy on stupid, insulting seminars at which people are treated like children, sitting through presentations of information which everyone already understands anyway.

These presentations are not limited to the handful of people who need to be reminded how to behave in the adult world. They are imposed across the board. Why? So the company has a reasonable shot of being found "not guilty" by proving that company policy does not condone rude behavior. But why should they have to fear such action in the first place?

I think the reason is because we already have far too many lawyers, with thousands more graduating every year from law school with bills to pay and families to feed. There isn't enough work to keep them all busy, so they have invented new opportunities for legal action & income generation.

The legal industry benefits by encouraging the public to accept the premise that "someone" should pay for their accidents, even if "someone" had nothing to do with the event and had absolutely no control over the outcome. After breaking my ankle on my first jump, I spoke with many people whose knee-jerk response was the suggestion that I sue the DZ. They firmly held this position even after I explained that the accident was my fault.

If I run a red light and hit somebody, most people would assume the wreck was my fault and that I would be responsible for the other guy's auto repair and/or medical bills. Auto insurance laws exist to ensure I'd be able to meet this requirement.

However, if the above-mentioned accident occurred while I was delivering pizza, there's a whole new dimension to this. Now it's no longer good enough that I cover the costs. Now, for some unfathomable reason, the company I'm working for must be dragged into this mess. I'll bet the vast majority of law school graduates, who a moment ago would have agreed that the accident was my fault, will now change their story so as to suggest the company is responsible. They would insist on this point even though the company had no control over the operation of my car. The company must now spend money not only on a legal defense, but now they're using their resources to carefully monitor their employees' driving records and insurance arrangements. This adds to the price of the product.

And, of course, the same people who are forcing this kind of situation will react to the price increase by accusing the company of greed and other selfish motives. All of this could have been avoided by using some common sense and not threatening the company with legal action in the first place.

It seems to me that a good starting point for this "social justice" crusade would include serious reconsideration of the immoral practice of punishing people for others' actions.

Years ago columnist Mona Charen, while discussing this issue, reflected upon her days in law school. She said she kept coming up with valid reasons not to sue, only to be rebuked by her professors who appeared far more concerned about the financial well being of the legal industry, rather than the overall cost to society imposed by this litigious mindset.

Cheers,
Jon S.

[lawrocket 3]

Quote

our waivers take up less than one page, and they are written in plain english ( they have to be)

So are ours. But, like defining a word in the dictionary, the explanation of what it means is much greater that the terms themselves.

My wife is hotter than your wife.

[JerryBaumchen 1,467]

Hi lawrocket,

I liked the write-up. My son is an attorney; I'll send your OP on to him.

I just finished A CIVIL ACTION, the book (saw the movie). Great read; I couldn't put it down.

Jerry

[mjosparky 4]

Quote

Many lawyers choose the profession in response to some altruistic desire to pursue what they describe as "social justice."………………..

I think the reason is because we already have far too many lawyers, with thousands more graduating every year from law school with bills to pay and families to feed. There isn't enough work to keep them all busy, so they have invented new opportunities for legal action & income generation…………….

I'll bet the vast majority of law school graduates,………will now change their story so as to suggest the company is responsible. They would insist on this point even though the company had no control over the operation of my car.

Have you ever heard of “no fault tort law”?

Quote

Occupation: Radio; Pizza Guy

Now you wouldn’t have an ax to grind with this rant would you? You have just spent a great deal of time and bandwidth running down “the vast majority” of a profession that you probably know nothing about.

All groups or segments of society will have those individuals whose actions reflect poorly on the group as a whole. But when you condemn the group for the actions of those few individuals you are guilty of the very thing you are complaining about.

Do you work in a profession where everyone is a saint and would never do anything to embarrass or bring shame on that profession? If so, you are indeed a lucky man.

My idea of a fair fight is clubbing baby seals

[georgerussia 0]

Quote

Why is such a complicated waiver necessary in the first place?

Because twelve people in Jury may have no clue about skydiving, and associated risks. Because the court may assess very high punitive damages as well as compensation for "pain and suffering" and so on.

For example, most Russian dropzones have no waiver. If you get hurt, you may go to the court, and sue the dropzone. And the probability that you win this case is high (I'd estimate is as 80-99% in most cases). The catch is that you'll spend much more money on this that you'll get. There is no punitive damages by law, and pain and suffering compensation imposed by court was ridiculously low in all the cases I studied about - something between 1000-5000 roubles, which is $35-$175. Medical bills usually are not compensated - the health care system in Russia is officially free of charge. There are more things (and some of them are even more important), but I think even those describe the difference.

* Don't pray for me if you wanna help - just send me a check. *

[Andy9o8 2]

This is why I'm selective about which "law threads" I participate in. You'll have an interesting discussion going on, until some whuffo-to-the-subject can't resist the urge to hijack it into the usual tired, old bash. How very creative.
Yawn.

[Airman1270 0]

...

Quote

Occupation: Radio; Pizza Guy

Now you wouldn’t have an ax to grind with this rant would you?...
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

Wow, Spark - I haven't seen such venom this side of "Speaker's Corner." Furthermore, I'd be interested in understanding what constitutes a "rant." Did you assign such terminology to Law's original essay?

(I get this at home sometimes: If an idea takes more than two sentences to explain, she calls it a "lecture"...)

The pizza guy scenario is but one example, one which admittedly came to mind because I have some experience here. Do I owe anyone an apology?

The main point remains valid: It is immoral to punish someone for somebody else's actions.

Holding the company responsible for the actions of an employee may well be a "valid" legal concept as far as current law is concerned, but it is foolish and wrong. It punishes people who had no control over the outcome of (insert specific event here.) Claiming thay they are responsible because they did not aggressively prevent or prohibit (specific event) does not pass the common sense test.

In my example, we already determined that the driver was responsible, and that the law's requirement to carry insurance provides for an avenue of restitution. The is no logical reason to drag the driver's employer into the case. The company had NOTHING at all to do with the outcome of the event.

Furthermore, I stand by my observation that the reason we have seen such an exponential increase in lawsuits is primarily because we have seen an exponential increase in law school graduates. Without this constant expansion of the lawsuit industry, there would literally be no way many of these people could earn enough money to maintain their lifestyles. If there's evidence I'm wrong, let's see it.

If a guy wants to be a carpenter, even though his community already has more than enough carpenters, he should not be surprised to learn that there is little demand for his services, and that he must do something else for a living. This is true of most chosen fields of work. (Especially radio.)

A carpenter will not show up at your house one day, build you a $5000 deck you never wanted in the first place, then demand you rearrange your life so as to make this project your top priority. But a lawyer can do this to you.

Cheers,
Jon