RO and liability

[Carmoney]

How about attending a match (major or club) that insists you sign a waiver of liability (for them), even if they are negligent (so stated in the release)? Is that release going to fly?

Such waivers are legally invalid and I have seen, in actual cases, where such waivers were successfully used against the organization who required their signature. I crossed out several portions of a waiver presented to me at a major and when the person doing registration balked, I responded that notice of their refusal to accept their negligence was not presented in a timely manner and as such, treble my match fees and travel expenses either be paid immediately, or the waiver be accepted as amended. By acceptance of match fees, a contract is created. Forcing a signature at a later date, is in most stages, illegal. They withdrew the requirement that I sign the waiver at all. The RM watched me like a hawk for about 2 hours at the beginning of the match.

But this one is mostly nonsense. Don't accept engineering advice from me, and don't accept legal advice from this guy!

[MarkCO]

How about attending a match (major or club) that insists you sign a waiver of liability (for them), even if they are negligent (so stated in the release)? Is that release going to fly?

Such waivers are legally invalid and I have seen, in actual cases, where such waivers were successfully used against the organization who required their signature. I crossed out several portions of a waiver presented to me at a major and when the person doing registration balked, I responded that notice of their refusal to accept their negligence was not presented in a timely manner and as such, treble my match fees and travel expenses either be paid immediately, or the waiver be accepted as amended. By acceptance of match fees, a contract is created. Forcing a signature at a later date, is in most stages, illegal. They withdrew the requirement that I sign the waiver at all. The RM watched me like a hawk for about 2 hours at the beginning of the match.

But this one is mostly nonsense. Don't accept engineering advice from me, and don't accept legal advice from this guy!

All was done with legal advice from an attorney. So what is nonsense about knowing your rights from a real attorney?

[Carmoney]

I can't speak to your particular jurisdiction, Mark, but I can accurately state that such liability waivers are generally valid, binding, and favored by most courts. As a rule, parties are free to contractually give up their legal rights in exchange for the privilege of participating in an activity.

Liability waivers are useful and valuable to those hosting matches. Not perfect, and not 100% guaranteed to work in every situation, but far better than having no contractual liability protection for match hosts and ROs.

[Carmoney]

Forcing the issue by modifying the waiver and then pressing the whole treble match fees and travel expenses and all that stuff? There was no reality to that at all, Mark. So good bluff, I guess. Try that at a match at our local club, where I drafted the waiver forms in full accordance with the law, and you will invoke nothing but hearty laughter and possibly an invitation to go blow yourself.

Edited May 26, 2016 by Carmoney

[revoman]

Forcing the issue by modifying the waiver and then pressing the whole treble match fees and travel expenses and all that stuff? There was no reality to that at all, Mark. So good bluff, I guess. Try that at a match at our local club, where I drafted the waiver forms in full accordance with the law, and you will invoke nothing but hearty laughter and possibly an invitation to go blow yourself.

Now that's why I like this guy and if I ever needed an attorney I would definitely have Mike in my corner. ✌

[Neomet]

I can't speak to your particular jurisdiction, Mark, but I can accurately state that such liability waivers are generally valid, binding, and favored by most courts. As a rule, parties are free to contractually give up their legal rights in exchange for the privilege of participating in an activity.

Liability waivers are useful and valuable to those hosting matches. Not perfect, and not 100% guaranteed to work in every situation, but far better than having no contractual liability protection for match hosts and ROs.

Now before I even start I have to say that I have used Mike in the defense of multiple suits and while he is a hell of a revo shooter he is even better as a defense attorney. Listen to what he has to say. (Wish I still handled cases in Iowa Mike) All that said, my experience in multiple jurisdictions is that while not considered against public policy the courts generally look with disfavor upon exculpatory clauses and will interpret the document strictly against the drafter. While the document does not have to list every possible scenario it only protects the drafter from risks the party signing the document would reasonably expect during the activity. If the MD decides to bury that guy who got shot in the berm and runs over somebody with a backhoe while doing it the waiver will probably not protect them. The artful plaintiff attorney will attempt to argue that the cause of the injury goes beyond the reasonable understanding of the risks being waived. Arguments about the validity of waivers are part and parcel of many a lawsuit and are frequently not as clear cut as we would like.

But I quibble about details and defense strategy here. Determining liability is far secondary to finding coverage. You need a policy somewhere to defend you both in the investigation of the loss but also more importantly in any suit filed against you. We recently closed a case where we prevailed at trial and defeated multiple appeals. The expenses on that case were just north of $425,000, none of which is recoverable. I would not want to foot that bill personally. There was also a good point above about exclusions for athletic activities. This has become a popular exclusion and would possibly result in a coverage disclaimer if the loss was determined to fall within the definition of that exclusion. Read your policy no matter how boring the process is. If you see that exclusion contact your carrier to see what it would cost to have it removed if that is a possiblity. There are intricacies as to what actually constitutes an athletic activity but the best way to avoid that fight is to not have to deal with the exclusion.

Lastly, to blame attorneys for how painful going through a lawsuit is misses the point. A lawsuit against you is an ugly thing. Period. Attorneys, including the one who will hopefully be hired to defend you have an obligation to vigorously represent their clients to the full extent allowed by the law. I am certain we would want no stone unturned in our defense and the plaintiff will want their counsel to do the same. This gets complicated by the fact that most people are not well versed in various theories of liability which can result in them being found negligent in whole or in part. Even for those of us in the game predicting how a jury will come back is on our best day an educated guess. The certainty that I read on the internet is not the reality of the courtroom.

Edited May 27, 2016 by Neomet

[Steve RA]

I was running the chronograph at the match mentioned in #17 and when it all ended my homeowners insurance got hit for $7,000.00. All the match officials got hit with the exception of one who lived with his mother and had no homeowners insurance.

[Carmoney]

One caveat to point out--although a properly executed liability waiver will often extinguish an action brought by the person who signed it (or his estate), it will generally not preclude an action from family members claiming loss of consortium. The rationale is that people can sign away their own rights, but not the rights of others.

Also, a waiver may not be effective for minors who are not usually deemed to have legal capacity to enter into contracts, regardless of whether a parent or guardian signs for them.

All of this varies by jurisdiction and local law. From the perspective of the club, the match organizers and staff, having everybody on the premises sign a nice tight waiver is still a good idea.

[Carmoney]

There was also a good point above about exclusions for athletic activities. This has become a popular exclusion and would possibly result in a coverage disclaimer if the loss was determined to fall within the definition of that exclusion. Read your policy no matter how boring the process is. If you see that exclusion contact your carrier to see what it would cost to have it removed if that is a possiblity. There are intricacies as to what actually constitutes an athletic activity but the best way to avoid that fight is to not have to deal with the exclusion.

Guys, this is really important. When I discovered this clause in our local club's liability policy, I contacted underwriting and confirmed they might not cover an injury suffered during a match--obviously, that was a big potential problem!

We had to switch carriers in order to plug the gap in coverage.

Like Rick says, read your policy closely--especially the exclusionary language. A review by an attorney who does insurance work is a good idea. If you have a lawyer in your club, he or she may be willing to review it for free.

[MarkCO]

I can't speak to your particular jurisdiction, Mark, but I can accurately state that such liability waivers are generally valid, binding, and favored by most courts. As a rule, parties are free to contractually give up their legal rights in exchange for the privilege of participating in an activity.

Liability waivers are useful and valuable to those hosting matches. Not perfect, and not 100% guaranteed to work in every situation, but far better than having no contractual liability protection for match hosts and ROs.

Now before I even start I have to say that I have used Mike in the defense of multiple suits and while he is a hell of a revo shooter he is even better as a defense attorney. Listen to what he has to say. (Wish I still handled cases in Iowa Mike) All that said, my experience in multiple jurisdictions is that while not considered against public policy the courts generally look with disfavor upon exculpatory clauses and will interpret the document strictly against the drafter. While the document does not have to list every possible scenario it only protects the drafter from risks the party signing the document would reasonably expect during the activity. If the MD decides to bury that guy who got shot in the berm and runs over somebody with a backhoe while doing it the waiver will probably not protect them. The artful plaintiff attorney will attempt to argue that the cause of the injury goes beyond the reasonable understanding of the risks being waived. Arguments about the validity of waivers are part and parcel of many a lawsuit and are frequently not as clear cut as we would like.

But I quibble about details and defense strategy here. Determining liability is far secondary to finding coverage. You need a policy somewhere to defend you both in the investigation of the loss but also more importantly in any suit filed against you. We recently closed a case where we prevailed at trial and defeated multiple appeals. The expenses on that case were just north of $425,000, none of which is recoverable. I would not want to foot that bill personally. There was also a good point above about exclusions for athletic activities. This has become a popular exclusion and would possibly result in a coverage disclaimer if the loss was determined to fall within the definition of that exclusion. Read your policy no matter how boring the process is. If you see that exclusion contact your carrier to see what it would cost to have it removed if that is a possiblity. There are intricacies as to what actually constitutes an athletic activity but the best way to avoid that fight is to not have to deal with the exclusion.

Lastly, to blame attorneys for how painful going through a lawsuit is misses the point. A lawsuit against you is an ugly thing. Period. Attorneys, including the one who will hopefully be hired to defend you have an obligation to vigorously represent their clients to the full extent allowed by the law. I am certain we would want no stone unturned in our defense and the plaintiff will want their counsel to do the same. This gets complicated by the fact that most people are not well versed in various theories of liability which can result in them being found negligent in whole or in part. Even for those of us in the game predicting how a jury will come back is on our best day an educated guess. The certainty that I read on the internet is not the reality of the courtroom.

Thanks for the professionalism in your response. I'd be interested to hear how you view some matches that have changed their rules to remove a layer of safety without a real understanding of what they are doing. Specifically changing from DQs to penalties for some actions,

[Edge40]

Last month there was a local USPSA match that I attended. I was in a different squad that the one with the incident but I saw the video as the shooter was wearing a helmet cam and I usually shoot with both the shooter and the RO. Anyway there was a stage that was a little tricky to clear because of walls, barrels and they recognized it right away. My buddy who is a CRO grabbed the timer and ran the entire squad which was mostly new shooters because he knew it was a tough one and he was the last shooter. When it was his turn to shoot he handed it off to another guy that we shoot with weekly. He didn't thoroughly clear the range and neither did the shooter before he handed over the timer. The RO started him with LAMR timer went off and you could hear a guy screaming NO NO NO NO NO NO in the background. The shooter is an open guy and wears double hearing protection. He said he barely heard something as the timer beeped. He drew his gun moved to the port to engage the first array and there was a guy standing behind the target. He immediately holstered his gun and had to tell the RO there was a guy down range. He told me if he didn't hear something slightly out of the ordinary as the timer beeped he would have broke the shot and that guy fixing the jammed tape gun would have taken 2 38 super comp center mass. The video was scary. I couldn't believe how close it was. The RO almost couldn't finish the day he was so shook up. If something had happened I don't doubt for a second that they both would have paid dearly as well as the club and anyone else involved. Moral of the story make sure the range is clear and do everything in your power to make it as safe as possible. Waivers or not nobody is safe even if it is truly an accident.

[teros135]

Good lord! I'm sorry, but didn't anybody see the YouTube video from last year? Didn't EVERYBODY change their routine to have the RO be the last one back behind the line before giving MR? It sounds from the description that there were multiple high-level foul-ups here. What do we need to happen before we start paying attention?

[Neomet]

Thanks for the professionalism in your response. I'd be interested to hear how you view some matches that have changed their rules to remove a layer of safety without a real understanding of what they are doing. Specifically changing from DQs to penalties for some actions,

Thanks Mark. This is an answer that most people don't like, but one I have to frequently give. Hypotheticals are usually impossible to answer accurately. One small, seemingly insignificant fact change can completely change an answer. On top of that we are talking about multiple jurisdictions, some with very different rules of the road as it were. That caveat firmly in hand my answer is..... it depends. Moving past the initial issues of enforceability of waivers and the like I would still have lots of questions. Do you have a new safety procedure that is implemented at the same time that makes the offense less of a safety hazard? What prompted the change? Were safety considerations discussed? etc, etc, etc... Again, it is just so fact specific. Sorry, I am really not trying to be evasive here. All that said, as a completely generalized statement doing anything that might be perceived rightly or wrongly as demonstrating less than the highest degree of concern for safety has its risks.

teros135, on 05 Jun 2016 - 7:59 PM, said:

Good lord! I'm sorry, but didn't anybody see the YouTube video from last year? Didn't EVERYBODY change their routine to have the RO be the last one back behind the line before giving MR? It sounds from the description that there were multiple high-level foul-ups here. What do we need to happen before we start paying attention?

Memories fade. Noobs grab the clock. People will make mistakes. You need to minimize the human factor. We should eliminate vision barriers on the range. My two cents is that solid walls have no place in this sport. Snow fence is as solid as anything needs to be. That still leaves us with barrels and even targets that can hide folks downrange which I don't have an answer for.

Edited June 6, 2016 by Neomet

[MarkCO]

Agree, we have eliminated solid walls and barrels in our matches for safety reasons.

[Edge40]

That club is thinking about getting rid of most of the solid walls to avoid that situation. It def takes away from some of the game as people are way less likely to blow by a target. But if certainly helps the safety factor.

[teros135]

<snip>

teros135, on 05 Jun 2016 - 7:59 PM, said:

I'm sorry, but didn't anybody see the YouTube video from last year? Didn't EVERYBODY change their routine to have the RO be the last one back behind the line before giving MR? It sounds from the description that there were multiple high-level foul-ups here. What do we need to happen before we start paying attention?

Memories fade. Noobs grab the clock. People will make mistakes. You need to minimize the human factor. We should eliminate vision barriers on the range. My two cents is that solid walls have no place in this sport. Snow fence is as solid as anything needs to be. That still leaves us with barrels and even targets that can hide folks downrange which I don't have an answer for.

Folks, this isn't about walls or barrels. Thousands of matches every year run with all kinds of equipment (especially barrels) and don't have incidents. It's about us, about training, rules, and accountability. Focusing on walls and barrels is like the "anti's" focusing on guns - let's take the guns away from everyone, don't spend energy trying to figure out why the crimes are happening and change the national mindset from "let it all hang out, do what you want" to "let's work on social change to prevent this from happening".

This is why some of us focus as we do on the rules. It's dismaying to hear how often the rules (especially the safety rules) are relaxed at "local" matches, so it's easier, or because we don't have enough qualified range officers, or because we don't want to upset the newbies (who come to their first match without a clue what's going on and never read about the sport). THIS is what happens, and it's not acceptable.

I'm curious whether the "CRO" in this instance was always the last person to come back from downrange, having checked for people downrange (especially on this stage, with its vision barriers). If "yes", why didn't the others follow his example and do the same? If "no", please train everyone up to a level where they'll do the right thing, even when it's inconvenient.

I'm also curious what the club is doing after this incident, hopefully not just making a bunch of snow fence walls and getting rid of barrels. I mean, what procedures are they changing to make sure that the humans involved are being actively aware of safety and of where everybody is?

[Carmoney]

The fact that USPSA has such a carefully-considered and well-developed rulebook is the main reason serious injuries in our sport are so rare....but no matter how safely you try to run your matches, accidents can happen. That's why it is important to have the protections afforded by well-crafted liability waivers and comprehensive liability insurance with sufficient limits.

[Edge40]

<snip>

teros135, on 05 Jun 2016 - 7:59 PM, said:

I'm sorry, but didn't anybody see the YouTube video from last year? Didn't EVERYBODY change their routine to have the RO be the last one back behind the line before giving MR? It sounds from the description that there were multiple high-level foul-ups here. What do we need to happen before we start paying attention?

Memories fade. Noobs grab the clock. People will make mistakes. You need to minimize the human factor. We should eliminate vision barriers on the range. My two cents is that solid walls have no place in this sport. Snow fence is as solid as anything needs to be. That still leaves us with barrels and even targets that can hide folks downrange which I don't have an answer for.

Folks, this isn't about walls or barrels. Thousands of matches every year run with all kinds of equipment (especially barrels) and don't have incidents. It's about us, about training, rules, and accountability. Focusing on walls and barrels is like the "anti's" focusing on guns - let's take the guns away from everyone, don't spend energy trying to figure out why the crimes are happening and change the national mindset from "let it all hang out, do what you want" to "let's work on social change to prevent this from happening".

This is why some of us focus as we do on the rules. It's dismaying to hear how often the rules (especially the safety rules) are relaxed at "local" matches, so it's easier, or because we don't have enough qualified range officers, or because we don't want to upset the newbies (who come to their first match without a clue what's going on and never read about the sport). THIS is what happens, and it's not acceptable.

I'm curious whether the "CRO" in this instance was always the last person to come back from downrange, having checked for people downrange (especially on this stage, with its vision barriers). If "yes", why didn't the others follow his example and do the same? If "no", please train everyone up to a level where they'll do the right thing, even when it's inconvenient.

I'm also curious what the club is doing after this incident, hopefully not just making a bunch of snow fence walls and getting rid of barrels. I mean, what procedures are they changing to make sure that the humans involved are being actively aware of safety and of where everybody is?

I agree but at the end of the day there will always be human error. No matter how careful people are. Its unfortunate but unless you have designated RO's for every stage at every match I can't see how you can avoid it,and even then who knows. The lesson was learned in the incident I mentioned and everyone involved will adjust accordingly but there will always be the person that hasn't seen or heard of an instance like it.

Edited June 10, 2016 by Edge40

[MarkCO]

Too much procedure removes the perceived need to use common sense...an environment too often created by our litigious society and the money to be made off of it.

[Neomet]

The fact that USPSA has such a carefully-considered and well-developed rulebook is the main reason serious injuries in our sport are so rare....but no matter how safely you try to run your matches, accidents can happen. That's why it is important to have the protections afforded by well-crafted liability waivers and comprehensive liability insurance with sufficient limits.

This is the essential truth of all of this because these two items are two most important things to protect yourself and your club. There is no way to eliminate accidents at the range (or anywhere for that matter), only minimize the risk. When the accident does occur the injured party will most likely pursue the issue and blame will be pointed at everybody and everything. For better or worse this is the reality of how this plays out.

As my ex-father in law told me when I was a much younger man, "Shit is just going to happen. Be prepared." Smart guy.

[jnkill]

On 4/19/2016 at 4:58 PM, Round_Gun_Shooter said:

No need. No one saw anything bury the guy in the berm

My home range was built on an old landfill, they dug out an old vw , not sure if the guy was still in it

[wgj3]

Here is one that really chapped me...

 

NON-USPSA match.

 

During pre-match brief, shooter removes cased pistol from range cart, unzips it, removes pistol from case holsters it. He was immediately DQ'd.

No established ruleset for these matches at major CMP range, but in this situation, there was no way to argue against the DQ. Used "handling firearm outside safe area and not under RO supervision/instruction" as justification. Made sense to me.

Match brief proceeded. Much attention was given to only handling firearms at appropriate times and places. Use safe areas for bagging and unbagging. No ammo in safe area, yada, yada...

Match started.

On my squad's 2nd stage, our 2nd shooter fired 1-2 rds and his AR stopped. RO stopped shooter and they tried to "clear" his rifle. Shooter and RO couldnt get it done. So, RO sends shooter to safe area to continue working on firearm.

I needed to replace a battery in my PCC laser, so I headed to safe area as well. When I got there the shooter was still working to clear his rifle. I waited behind him a bit and asked to help. He declined. I wanted to get started on my gun, so I asked if he was certain that it was an empty case stuck in the chamber. He said yes.

I remained back a bit and continued watching as he produced a cleaning rod, dropped it in the barrel from the muzzle and out fell a live .223 round...

 

Whatcha think?