On Apr 12, 8:22 am, Stan Brown <the_stan_br...@fastmail.fm> wrote:
> The question you forgot to ask is, "Why would I give my time to an
> organization with such contempt for its volunteers?"
I'm surprised Stan and, um, Deadrat feel so vehemently about pre-injury releases in the context of dangerous recreational activities. Maybe after reading my first reply to OP they already feel differently, but if not, please consider the following. And keep in mind that I primarily represent accident victims in injury cases, not defendants, although in the interest of full disclosure, I do participate in more than one kind of dangerous recreational activity myself, and am well aware that the thrill of doing so isn't genuine unless the risk is genuine also, AND that I never feel more alive and free than when I assert and take responsibility for my OWN safety in doing so. To me, such an official acknowledgement of my having assumed that awesome responsibility for myself is deeply respectful of my competence and autonomy, not (as the converse would be) contemptuous of my ability to look out for myself.
A hotel guest or airline passenger expects (rightly) that he shouldn't have to worry about whether the carpet on the stairs is loose or whether the thunderstorm ahead is too big to go through; that's not HIS worry, but the company's responsibility, so that he the guest can kick back and relax and assume management knows what it is doing and will protect him. However, anybody who has that attitude of "take care of me" while participating in dangerous recreation is, frankly, going to be even more of a danger to himself and others, on the ski slopes, or skimming over coral reefs with a scuba tank, or flying in (or servicing planes at) an airshow, so I'd just as soon he decide NOT to participate and/or volunteer in that case.
Who, exactly, IS it that an injured participant might want to blame for not looking out for him? Why, other participants just like himself (or the organizations they belong to, which can only act thru those individual participants). The better approach IMO is a commitment that, while each participant tries to avoid any unnecessary risks to himself OR others, all of them acknowledge that there are inherent risks in the enterprise itself and that those risks cannot be cushioned out by anyone else's actions without destroying the experience. We might as well just go sit in the Imax theater at our local museum to experience rock climbing, aerobatics, etc. instead of the real thing, if that is all we want. However, even there, _somebody_ has to climb the rocks, or stand in front of the looping plane, to record the images that the civilians watch while they "ooh" and "aah".
So, I don't think organizations that put forth these kind of agreements IN THAT CONTEXT are being chickens**t at all. Rather, they are trying to emphasize to participants that it is up to each of them, working together AND looking out for their own safety, to make the event as safe as possible without destroying its essence of modulated danger. Remember, all the other participants are signing such agreements too, which protects OP against suit as much as his signing protects them. HE is one of the "indemnitees" himself; they are a community of free, responsible adults looking out for their own safety, not a bunch of "civilians" expecting to be babied and coddled.
I would certainly feel differently if this were an adhesion contract of indemnity for e.g. a public utility, a common carrier or innkeeper, a residential landlord, a hospital, a grocery store ("don't sue us if you find rat droppings in your food") or any other essential public service or consumer goods, but that's not what we're talking about, and that's why the courts in most states have differentiated dangerous recreational activities from other kinds of situations where pre-injury indemnification is frowned upon and construed narrowly against the party seeking to be protected by the indemnification agreement
Even in OP's situation (e.g. an airshow), I doubt the courts would uphold an indemnity agreement signed by the mere paying spectators at the event; such "civilians" are the ones who DO have a right to expect the PARTICIPANTS to take care to protect THEM from excess danger (excluding IMO those who want, and sign for, a "pit pass"). Keep in mind that, by being a volunteer, OP has placed himself "in the pit", or "on the other side of the safety fence" from the coddled spectators, and has agreed to be right down where the action, and the risk, is, where everybody there has to keep his own eyes open for dangers they all know may exist.
I would add that in many states there are already laws in place which specifically indemnify and protect certain actors even if no written indemnity agreement is signed, particularly cities (and sometimes private landlords) who make undeveloped parkland available for unsupervised recreational use, playgrounds for children, city softball leagues, etc. As a plaintiff lawyer myself, I am not one of those "tort reformers" who touts an alleged "lawsuit crisis" of frivolous claims destroying American businesses, but it is true that there is a cost associated with defending a suit even when it is meritless, and if damages are large enough (as is more likely to happen to persons who are injured while bungee jumping, etc. than in a less danger-oriented activity) there is much more incentive to sue the service provider, even if the legal theory of liability is tenuous at best, and some such suits (if they are not thrown out early and get as far as a jury) _do_ win substantial verdicts. Thus, use of these forms lets businesses continue to operate such dangerous recreational activities where otherwise they would simply have to shut them down due to the risk of excessive lawsuits and/or the inability to get adequate (or any) liability insurance coverage.
Don't get me wrong; it would be unconscionable IMO for a hospital to insist a patient sign an indemnity release before getting surgery, frex, but I see no bad faith or chickens**t mentality in a drag strip operator saying in effect, "if you, the prospective participant, want to race your car at our track, go right ahead after signing this form, but (if these are things that concern you) YOU walk the course first to make sure it is clear, YOU check your tires, brakes, and other equipment to make sure it is safe, YOU be sure you know how to drive and control your car at high speeds, YOU take care not to run into the guy who is running alongside you, because that's not OUR job, it's YOURS." Which IMO puts the primary responsibility where it rightly belongs, on the participant.
--
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Mike Jacobs
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