Question about the waivers we sign

[Eiley 0]

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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.

I was replying to your original assertion that

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

I dug. I couldn't find them.

nothing to see here

[Trae 1]

in reply to "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. "
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Do you have access to cases that may not have made it to court for various reasons?

I find it less than amusing that the laws needed changing to protect the negligent perps from law suits rather than to protect us all from negligence.

As far as I understood it when the waver was beaten it was beaten for good reason.....not some fantasy . Some-one got hurt & seriously . Some-one was negligent ...and they knew it. A judge agreed.

The dangerous figures you refer to sarcastically (?) are only dangerous through their acts of negligence. Otherwise they are pathetic...especially when they refuse to admit to or learn from their mistakes but instead hide behind an unjust money orientated legal system.

To those they injured ( and killed ) and those aware of their gross negligence they are morally barely above other violent criminals.

[kelpdiver 2]

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As far as I understood it when the waver was beaten it was beaten for good reason.....not some fantasy . Some-one got hurt & seriously . Some-one was negligent ...and they knew it. A judge agreed.

At which point the defense quickly settled, thereby leaving nothing on the legal record?

[Eiley 0]

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in reply to "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. "
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Do you have access to cases that may not have made it to court for various reasons?

Erm... if they didn't make it to court, they ain't 'cases'.

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I find it less than amusing that the laws needed changing to protect the negligent perps from law suits rather than to protect us all from negligence.

Could you help me out with what laws they might be please?

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As far as I understood it when the waver was beaten it was beaten for good reason.....not some fantasy . Some-one got hurt & seriously . Some-one was negligent ...and they knew it. A judge agreed.

Then you understand it wrong. The TPA (and state FTAs) is designed to protect unwary consumers from defects in goods that they could not possibly know about.

To claim that you didn't know there was a chance you could break bones when jumping out of an aeroplane is utterly dishonest, IMHO. And its not llike it was her first jump.

This case (among others) is the very reason the TPA (and derivative state legislation) was amended. It's all right there, in the Explanatory Memorandum behind the reasons for the change.

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The dangerous figures you refer to sarcastically (?) are only dangerous through their acts of negligence. Otherwise they are pathetic...especially when they refuse to admit to or learn from their mistakes but instead hide behind an unjust money orientated legal system.

So who are they?

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To those they injured ( and killed ) and those aware of their gross negligence they are morally barely above other violent criminals.

Can you at least give me a hint? Say, a link to a thread about a fatality which supports your claims?

Certainly not the case you cited. Established: the wind was below 15 knots when she went up. It increased while she was in the air and the ground crew radioed the plane.

Here's a quote directly from the judgment (other than removing the names):

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As the plane was in its “drop run”, that is, flying into the wind so that the five parachutists could jump from the plane, and parachute towards the designated target area, the wind speed at ground level increased. Mr L*** observed this, and attempted on two or three occasions to communicate this circumstance by radio to the pilot, Mr S***. For reasons not established by the evidence he could not establish radio communication....

Mr L*** then attempted to display appropriate signs on the ground, so as to warn those on the plane not to jump, but before he had put these signs into place the five parachutists jumped....

Mr M*** and the respondent, holding hands, jumped together. All landed safely except the respondent. She opened her parachute at a greater height than Mr M*** so that she descended a little later than he did. When she was a short height above the ground level, a gust of wind struck the canopy of her parachute with the consequence that she landed heavily and awkwardly.

(Mr L***, by the way, is the DZO)

This is the very sort of 'shit happens' risk you sign up for when jumping. This is not, by any stretch of the imagination, criminal.

nothing to see here

[Eiley 0]

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As far as I understood it when the waver was beaten it was beaten for good reason.....not some fantasy . Some-one got hurt & seriously . Some-one was negligent ...and they knew it. A judge agreed.

At which point the defense quickly settled, thereby leaving nothing on the legal record?

It wasn't even a negligence case. The plaintiff claimed that by not telling her the winds had risen, the defendants (ie the DZ) had engaged in 'misleading and deceptive conduct' about their product under the Fair Trading Act (legislation designed to protect consumers from hidden defects in products they could not possibly know about).

The judge in the inferior court interpreted the legislation strictly and awarded damages.

All three judges of the Supreme Court said "yeah, right" and reversed the finding. (See my post above).

Then the High Court (that's the BIG one here folks) disallowed her appeal against the Supreme Court decision.

Trae, are you claiming only the first judge was honest and the judges from both the Supreme Court of NSW and the High Court were somehow corrupted by the wealthy and powerful owner of a weekend DZ?

Parliament subsequently changed the legislation to specifically provide that grown-ups could make their own decisions about whether to take calculated risks or not about participating in adventure activities, and the providers of those activities would be protected from "boo hoo, I hurt myself who can I blame" lawsuits as long as they operated within reasonable safety parameters.

I simply can't see how this is a bad thing.

nothing to see here

[lawrocket 3]

I guess that I can comment on this somewhat with regards to California. As far as published (that is, opinions by trial and appellate courts that are deemed worthy of publication (gives a good overview of relevant law or expands and expounds on law or inteprets new law, etc.) I have not found any. There are a few cases published that all find in favor of the waiver..

In Paralift v. Superior Court (Levin) (1994) 23 Cal.App.4th 748, the appeals court reversed an order denying summary judgment (a motion for a court to decide a case because trial is not necessary) to Paralift. The trial court found that there were "triable issues of fact" with regard to the scope and effect of the release that the deceased jumper signed 3 years before the fatal jump. The jump was a demo jump on July 4, 1991. The jumper, part of a four-way, broke off at 2,100 feet in a cloud and deployed over the ocean. He cut-away between 50 and 150 feet above the water and died on impact.

The suit was brought by his minor daughter as an heir in a wrongful death.

Paralift (the defendant) was the company doing the flying. The original waiver was done at Perris.

The trial court found that the waiver 3 years previously at Perris did not waive the jump over water in Del Mar. The trial court also foudn that Paralift had a duty of care not to drop decedent over water or over bad weather.

The appeals court reversed. Key to the issue was that the court found that the release was very broad. Evidence that he used Paralift to jump into Del Mar four times previously showed that he meant that the contract included those jumps, too. Paralift got off on that one.

2. Hulsey v. Elsinore (1985) 168 Cal.App.3d 333. I discussed this case and cited the full text here: http://www.dropzone.com/cgi-bin/forum/gforum.cgi?post=936481

This is the seminal case in California about acceptabel waivers in hazardous activities. The court found that the waiver was easy to read, in plain language, and definitely warned of all risks. You can waive negligence in CA, except in certain things where "adhesion" contracts are an issue (like a doctor in an emergency room demanding a waiver from a patient who will die without treatment).

I found a case in Minnesota that reached the same result as Hulsey. In Malecha v. St. Croix Valley Skydiving Club, Inc. (1986) 392 N.W.2d 727, A skydiving student signed a waiver of liability form prior to the class. He was injured when his parachute did not open properly. Though the court thought that the waiver was “unnecessarily wordy”, it found that it was not ambiguous. It also found that the waiver only released the club from acts of negligence. There was no difference in bargaining power and the club’s services were not public or essential so there was no violation of public policy.

A case that found that a waiver was unenforceable as against the decedent's heirs was discussed in this thread, relating to a SCUBA diver. http://www.dropzone.com/cgi-bin/forum/gforum.cgi?post=1044965
This is only in Pennsylvania, from what I know, and this line of thinking may not have been adopted anywhere else. On the other hand, this was a fairly novel theory by Plaintiff's counsel, and perhaps has not been tried by attorneys in other states or jurisdictions.

Still, in California, a California Supreme Court Case, Madison v. Superior Court (1988) 203 Cal.App.3d 589, found that the heirs could NOT recover for wrongful death of a SCUBA diver who signed a waiver. Still, the PA case seemed to work on a different theory, so we'll see how good this one is.

There may be other cases that were not appealed where a court found that the waiver was no good. But, those are not exactly compelling authorities for other courts to use.

My wife is hotter than your wife.

[Trae 1]

The simple facts of the matter as I am aware are :-that the victim was put out in high winds and turbulent conditions under a canopy too big for her body weight by DZ operators on their first day of operation with no direct communication with the aircraft combined with multiple breaches of the op regs. eg no ground to air communication after take off.

End result a person who had put their trust in the DZ operators hospitalised with serious injuries after being blown into highly turbulant area (tall trees )that surrounded the DZ.

The previous operator of this DZ had maintained operations at the same DZ for a long period of time with no such incidents.

Cheers but no applause

[Eiley 0]

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The simple facts of the matter as I am aware are :-that the victim was put out in high winds and turbulent conditions under a canopy too big for her body weight by DZ operators on their first day of operation with no direct communication with the aircraft combined with multiple breaches of the op regs. eg no ground to air communication after take off.

End result a person who had put their trust in the DZ operators hospitalised with serious injuries after being blown into highly turbulant area (tall trees )that surrounded the DZ.

The previous operator of this DZ had maintained operations at the same DZ for a long period of time with no such incidents.

Cheers but no applause

Did you read the extracts from the Supreme Court judgement I posted above? They were the findings of three judges upon listening to all the evidence.

Those are the 'simple facts of the matter'.

As I went to the trouble to research and provide specifics for you, would you please do me the courtesy of actually responding to my post?

Thanks.

nothing to see here