On Apr 22, 7:40 am, "NotMe" <m...@privacy.net> wrote:
> My son went to a NC package store (visiting from out of state). He is 37
> but does not look his age but is obviously over 21.
* * *
> The purchase is not an issue as I've addressed the problem by patronizing
> another store but an curious on the clerk's requirement of an in state DL
> and the refusing of valid US pass port.
My guess is, either the clerk was new on the job and being extremely literal in interpreting what his boss had told him was required ("They have to show you a valid NC license" or such) or else the store had recently been burned by a law enforcement sting for failing to require proper ID and thus was being extra-careful (but still, IMO, technically without basis in law for their interpretation).
> Further just what grounds does the clerk have to refuse to sell to me who is
> obviously well over the age of consent and carry an instate license and US
> pass port?
"We reserve the right to refuse service to anyone at any time." Unless the refusal is for an illegal discriminatory reason, i.e. because of your race, religion, national origin, gender, etc., no business is required by law to sell to every potential customer, even if they hold themselves out to the general public as merchants. They can decline to accept your offer to enter into a sales contract with you, charge you a ridiculously high price, or insist on being paid in giant Yap Island stone coins or in wampum as a condition of sale. Obviously, they can also impose their own in-store requirement, even if not required by NC law, refusing to sell to anyone who doesn't have a valid in-state drivers license and even, as in Santa Dad's case, refusing to sell to adult locals if they merely think _you_ will provide the booze to someone who doesn't have a valid in-state license.
It's stupid business policy IMO, but not illegal for them to do so. Glad you were able to find a more sensible retailer to supply your BBQ needs.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Friday, August 10, 2012
Fictionalized true-crime story, part 2
On Apr 15, 7:50 am, nadin...@mailinator.com wrote:
> There seems to be a lot confusion about what is it I was saying, and
> what advise I was looking for, so I'm going to (completely) restate
> it.
OK, I read and replied to your 4/15/07 discussion with Stan Brown before reading this here post. It changes a few things, but not much, in what I said a few minutes ago.
> Assume the following are the facts:
> 1. A father committed several acts (chronic/continous for several
> years) of child abuse on the author many years ago. (Not sexual.)
If you, the author, are writing a true first person autobiographical account, and are strictly compliant with the facts, then it's not libelous. But that doesn't prevent your Dad from suing you if you publish it. Have you really considered whether this is the best way to work out your demons?
Did you know that filing a civil lawsuit and/or bringing criminal charges would also get your message "published" (in the sense that your complaint, especially if you the victim want it not to be sealed, becomes a public record that others can read and cite regarding the facts you allege) and that such court filings are by definition in USA _not_ libelous because they are privileged as communications made in court?
Or is it that you don't want to sue or criminally charge your Dad, just humiliate him publicly _without_ suing him but also without letting anyone other than your circle of friends know that it is you who are writing the story or he who is its subject? Or what is it, really? In addition to working with a local lawyer, has your therapist cleared this approach as something that would really be in your best interest therapeutically?
Or, if your goal is simply to publish a semi-autobiographical novel based on "what you know" as the gurus all suggest fiction writers should do, in order to raise public consciousness about a general problem, you could go with a truly fictionalized account in which it would _not_ be possible to identify your Dad as the model for the story's villain, as suggested in my earlier post. But then we have the problem of you being identifiable as the author.
> 2. Neither the father nor the author could prove it today either way,
> as there are no witnesses
Yes there is. YOU, the victim are a witness and so is your Dad. But maybe you just mean it would be _hard_ to prove because there are no _independent_ witnesses to what happened. That would not prevent you from bringing suit if you believe the facts as you intend to testify to them to be true. And he _could_not_ successfully sue you for libel for testifying in court, and/or writing in your legal complaint, about the facts of the abuse as you recall them. He _could_ sue you if you write a book about it.
> 3. A few of the authors friends know he wants to write the book, and
> they already know the details. These friends clearly would not side
> with the father, and his image would not be further lowered in their
> minds by the publication of a book.(Just assume that's the fact here,
> that the jury wouldn't find it was further lowered.)
So, who is it exactly that you want to inform about this incident that doesn't already know? We get back to the fish-or-cut-bait conundrum I discussed in my earlier post as to what your real intentions are.
> 4. No other person would be able to figure out who the book is about,
> as the author uses a pseudonym and all the names are changed.
That alone, as others have pointed out, is not enough to insulate you from liability.
> There is
> no matching physical description, occupation, or anything else that
> would identify him.
If that's really true, then you may be safe, but please hire a lawyer to "vet" your manuscript for possibly defamatory content _before_ you publish it. Seems to me the only way you could avoid letting anyone figure out it's him is to be absolutely sure there is no identifying information, and the only way to do that is to change enough of the facts (locations, dialogue, etc.) that no one could possibly link it to him OR you. In which case you would have a completely fictionalized account but then you would need to worry that, if somehow Dad _did_ find out you wrote this book, the changed facts could ironically expose you to liability. IMHO the biggest danger in doing this as a true first-person story is that if anyone ever DOES find out that _you_ wrote the book then they would be able to tell that it is about you and your father just from that fact of authorship alone. Which makes me understand why you wanted to use a pseudonym, but that is a pretty flimsy protection.
> 5. The intent of writing the book is not to defame, but to point out
> problems with a particular state's laws, procedures at school
> (reporting suspicion, etc), the stigma against questioning a parent -
> the idea being that writing a book about a common, serious problem
> might get some laws changed.
Then you want to write a type (1) roman a clef as discussed in my previous post, NOT a Philippic "outing" your father as an abuser. Keep that in mind as you write the book.
> The question is, can the author/publisher prevail in a suit against
> them if the father was to discover the book had been published?
Yes, they "could". I decline to speculate whether they "would". That's what trials are for. What is indisputably clear is that your proposed enterprise is fraught with risk and that you ought to take each step very carefully and with the aid of specific, focused, paid legal advice.
> Also, regarding #2 above, there is a disagreement in the posts as to
> both the standard, preponderance vs. proof w/o reasonable doubt, and
> who has the burden of satisfying the standard,
If you sue your Dad in a civiil suit for perpetrating the abuse, then you the Plaintiff have to prove by a preponderance of the evidence that it happened, that your Dad is the one who did it, and that you were hurt by it.
If your Dad sues you for libel, AND if he is not a public figure, then he the Plaintiff has to prove by a preponderance of the evidence that you defamed him, but he makes out a "prima facie case" (i.e. he meets that burden) just by putting on evidence showing that you publicly accused him of an infamous crime. The burden then shifts to you the defendant to prove by a preponderance of the evidence as an affirmative defense that what you wrote about him was true.
If your Dad _was_ a public figure, he would have to prove by "clear and convincing" evidence that you acted "with malice" in writing about him, i.e. that you acted with "reckless disregard for the truth." If you were careful in checking your sources and only published what you were told, without making stuff up, you the author would be safe in a public figure libel case even if your facts turn out to be objectively false. Malice may also be a relevant issue in a non-public-figure case if the Plaintiff is claiming punitive damages (to punish the malicious defamer) in addition to compensatory damages (for repayment of the tangible AND intangible losses you caused him by reason of the defamation). Publishing without provable malice will _not_ protect you from a libel suit in a non-public-figure case, but may limit your punitive damages.exposure.
If you bring criminal charges against your Dad, then the State, as the prosecuting entity, has to prove that your Dad was guilty of all required elements of whatever crime they charge him with, "beyond a reasonable doubt."
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> There seems to be a lot confusion about what is it I was saying, and
> what advise I was looking for, so I'm going to (completely) restate
> it.
OK, I read and replied to your 4/15/07 discussion with Stan Brown before reading this here post. It changes a few things, but not much, in what I said a few minutes ago.
> Assume the following are the facts:
> 1. A father committed several acts (chronic/continous for several
> years) of child abuse on the author many years ago. (Not sexual.)
If you, the author, are writing a true first person autobiographical account, and are strictly compliant with the facts, then it's not libelous. But that doesn't prevent your Dad from suing you if you publish it. Have you really considered whether this is the best way to work out your demons?
Did you know that filing a civil lawsuit and/or bringing criminal charges would also get your message "published" (in the sense that your complaint, especially if you the victim want it not to be sealed, becomes a public record that others can read and cite regarding the facts you allege) and that such court filings are by definition in USA _not_ libelous because they are privileged as communications made in court?
Or is it that you don't want to sue or criminally charge your Dad, just humiliate him publicly _without_ suing him but also without letting anyone other than your circle of friends know that it is you who are writing the story or he who is its subject? Or what is it, really? In addition to working with a local lawyer, has your therapist cleared this approach as something that would really be in your best interest therapeutically?
Or, if your goal is simply to publish a semi-autobiographical novel based on "what you know" as the gurus all suggest fiction writers should do, in order to raise public consciousness about a general problem, you could go with a truly fictionalized account in which it would _not_ be possible to identify your Dad as the model for the story's villain, as suggested in my earlier post. But then we have the problem of you being identifiable as the author.
> 2. Neither the father nor the author could prove it today either way,
> as there are no witnesses
Yes there is. YOU, the victim are a witness and so is your Dad. But maybe you just mean it would be _hard_ to prove because there are no _independent_ witnesses to what happened. That would not prevent you from bringing suit if you believe the facts as you intend to testify to them to be true. And he _could_not_ successfully sue you for libel for testifying in court, and/or writing in your legal complaint, about the facts of the abuse as you recall them. He _could_ sue you if you write a book about it.
> 3. A few of the authors friends know he wants to write the book, and
> they already know the details. These friends clearly would not side
> with the father, and his image would not be further lowered in their
> minds by the publication of a book.(Just assume that's the fact here,
> that the jury wouldn't find it was further lowered.)
So, who is it exactly that you want to inform about this incident that doesn't already know? We get back to the fish-or-cut-bait conundrum I discussed in my earlier post as to what your real intentions are.
> 4. No other person would be able to figure out who the book is about,
> as the author uses a pseudonym and all the names are changed.
That alone, as others have pointed out, is not enough to insulate you from liability.
> There is
> no matching physical description, occupation, or anything else that
> would identify him.
If that's really true, then you may be safe, but please hire a lawyer to "vet" your manuscript for possibly defamatory content _before_ you publish it. Seems to me the only way you could avoid letting anyone figure out it's him is to be absolutely sure there is no identifying information, and the only way to do that is to change enough of the facts (locations, dialogue, etc.) that no one could possibly link it to him OR you. In which case you would have a completely fictionalized account but then you would need to worry that, if somehow Dad _did_ find out you wrote this book, the changed facts could ironically expose you to liability. IMHO the biggest danger in doing this as a true first-person story is that if anyone ever DOES find out that _you_ wrote the book then they would be able to tell that it is about you and your father just from that fact of authorship alone. Which makes me understand why you wanted to use a pseudonym, but that is a pretty flimsy protection.
> 5. The intent of writing the book is not to defame, but to point out
> problems with a particular state's laws, procedures at school
> (reporting suspicion, etc), the stigma against questioning a parent -
> the idea being that writing a book about a common, serious problem
> might get some laws changed.
Then you want to write a type (1) roman a clef as discussed in my previous post, NOT a Philippic "outing" your father as an abuser. Keep that in mind as you write the book.
> The question is, can the author/publisher prevail in a suit against
> them if the father was to discover the book had been published?
Yes, they "could". I decline to speculate whether they "would". That's what trials are for. What is indisputably clear is that your proposed enterprise is fraught with risk and that you ought to take each step very carefully and with the aid of specific, focused, paid legal advice.
> Also, regarding #2 above, there is a disagreement in the posts as to
> both the standard, preponderance vs. proof w/o reasonable doubt, and
> who has the burden of satisfying the standard,
If you sue your Dad in a civiil suit for perpetrating the abuse, then you the Plaintiff have to prove by a preponderance of the evidence that it happened, that your Dad is the one who did it, and that you were hurt by it.
If your Dad sues you for libel, AND if he is not a public figure, then he the Plaintiff has to prove by a preponderance of the evidence that you defamed him, but he makes out a "prima facie case" (i.e. he meets that burden) just by putting on evidence showing that you publicly accused him of an infamous crime. The burden then shifts to you the defendant to prove by a preponderance of the evidence as an affirmative defense that what you wrote about him was true.
If your Dad _was_ a public figure, he would have to prove by "clear and convincing" evidence that you acted "with malice" in writing about him, i.e. that you acted with "reckless disregard for the truth." If you were careful in checking your sources and only published what you were told, without making stuff up, you the author would be safe in a public figure libel case even if your facts turn out to be objectively false. Malice may also be a relevant issue in a non-public-figure case if the Plaintiff is claiming punitive damages (to punish the malicious defamer) in addition to compensatory damages (for repayment of the tangible AND intangible losses you caused him by reason of the defamation). Publishing without provable malice will _not_ protect you from a libel suit in a non-public-figure case, but may limit your punitive damages.exposure.
If you bring criminal charges against your Dad, then the State, as the prosecuting entity, has to prove that your Dad was guilty of all required elements of whatever crime they charge him with, "beyond a reasonable doubt."
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Fictionalized true-crime story = libelous?
On Apr 15, 7:50 am, nadin...@mailinator.com wrote:
> I would not tell my lawyer to lie and say (or infer) the book is not
> about the parent if that was asked in court, and I would fire a lawyer
> who suggested such a thing.
That's the kind of comment that gets my attention.
Nadine, you've got to either fish or cut bait. Are you (1) worried about getting successfully sued, but you still want to inform the world about the details of the problem of child abuse in a novelized format; OR do you (2) want the whole world to know that Joe Schmoe in particular is a child molester regardless of the consequences to you if Joe contends your allegations against him are false?
The whole idea of (1), writing a social-issue roman a clef, changing the names, circumstances etc. in what is then basically a fictionalized crime story "based on a true situation" as they say on the Lifetime Network, is to increase public awareness of a particular social evil in a personalized narrative that makes it livelier and more entertaining than academically reviewing dry crime statistics on a police blotter. There the message, whether we're talking about child abuse, spousal abuse, rape, sexual harassment, or whatever, is that (a) such bad things do indeed happen to real people, and (b) here's the "warning signs" so you can avoid having this happen in your own life or defuse it before it goes too far, (c) here's what can happen afterwards, to victims as well as to perps, depending on how the situation is handled, and (d) here's how the "pros" recommend you handle it if this _does_ happen to you, so you can work towards a better chance of catching the perp/quicker recovery for the victim/whatever. And the goal of all that is to get the reader or TV listener all angry/sad/ready to write to Congress/whatever.. If that's what you mean by "it's in the public interest that such books are written," you've got a lot of company that would agree.
But if what you want to do is basically (2) to "out" Joe Schmoe as a child molester, and be able to do so behind a shield that would protect you against Joe's claim of libel if you fictionalize your story about him in any way and include details of the crime that are not provably true along with details that would identify him as your model for the character, nothing of the sort will help you. Only the truth will be your defense, and if that is what you intend to do, why would you want to change names of the characters, etc., and publish under a pseudonym? And if that is the case why would you want to fictionalize or speculate about any facts, other than reporting what is already available and proven on the public record? You'd be better off, both in terms of legal protection and in terms of accomplishing your "outing" goal, writing a piece of factual reportage rather than a "based on true crime" novel, and citing your sources, e.g. writing that "So-and-so alleged in court on 6-7-89 that Joe Schmoe molested Sally Schmoe" rather than speculating, based only on your inferences and guesswork and/or unprovable anecdotal tales, as to what really happened between Joe and Sally. The former is fact; the latter, even if YOU believe it to be what really happened, is fiction BECAUSE YOU DON'T HAVE A SOURCE.and it is entirely the product of your own imagination and inferences. Yes, I know, novels and other fiction are often better at getting at the "real truth" behind human behavior than dry nonnfiction social science is. But that doesn't prevent such fiction from being libel if it atrributes UNPROVABLE crimes to a living person.
In either event, as many posters have mentioned, you should get competent local legal advice BEFORE you publish anything even potentially libelous, ie. anything based on events in the life of a living person.
Now, getting back to your comment that got my lawyer hackles up. Assuming that your intent was (1) a fictionalized roman a clef and that you just wanted to get the message across about the evils of child abuse, not to point the finger specifically at Joe, WHY would you think your lawyer is in any way "lying" if that's what he argues at trial? It is not "lying" for a defense lawyer to make the plaintiff prove his case, and to suggest to the jury that plaintiff has not carried that burden of proof if there are other reasonable interpretations of what you wrote, i.e. that it is a generalized morality play and not a diatribe against Mr. Schmoe. And if such a general call to arms is your intent and your goal, rather than "outing" a particular perp, then what the lawyer would be arguing on your behalf is TRUE anyway (not that a lawyer's arguments have to be "true" in the same sense that testimony has to be "true", but that's another thread).
Sounds to me like you've got some thinking to do about what you really intend to accomplish. Good luck working it out,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I would not tell my lawyer to lie and say (or infer) the book is not
> about the parent if that was asked in court, and I would fire a lawyer
> who suggested such a thing.
That's the kind of comment that gets my attention.
Nadine, you've got to either fish or cut bait. Are you (1) worried about getting successfully sued, but you still want to inform the world about the details of the problem of child abuse in a novelized format; OR do you (2) want the whole world to know that Joe Schmoe in particular is a child molester regardless of the consequences to you if Joe contends your allegations against him are false?
The whole idea of (1), writing a social-issue roman a clef, changing the names, circumstances etc. in what is then basically a fictionalized crime story "based on a true situation" as they say on the Lifetime Network, is to increase public awareness of a particular social evil in a personalized narrative that makes it livelier and more entertaining than academically reviewing dry crime statistics on a police blotter. There the message, whether we're talking about child abuse, spousal abuse, rape, sexual harassment, or whatever, is that (a) such bad things do indeed happen to real people, and (b) here's the "warning signs" so you can avoid having this happen in your own life or defuse it before it goes too far, (c) here's what can happen afterwards, to victims as well as to perps, depending on how the situation is handled, and (d) here's how the "pros" recommend you handle it if this _does_ happen to you, so you can work towards a better chance of catching the perp/quicker recovery for the victim/whatever. And the goal of all that is to get the reader or TV listener all angry/sad/ready to write to Congress/whatever.. If that's what you mean by "it's in the public interest that such books are written," you've got a lot of company that would agree.
But if what you want to do is basically (2) to "out" Joe Schmoe as a child molester, and be able to do so behind a shield that would protect you against Joe's claim of libel if you fictionalize your story about him in any way and include details of the crime that are not provably true along with details that would identify him as your model for the character, nothing of the sort will help you. Only the truth will be your defense, and if that is what you intend to do, why would you want to change names of the characters, etc., and publish under a pseudonym? And if that is the case why would you want to fictionalize or speculate about any facts, other than reporting what is already available and proven on the public record? You'd be better off, both in terms of legal protection and in terms of accomplishing your "outing" goal, writing a piece of factual reportage rather than a "based on true crime" novel, and citing your sources, e.g. writing that "So-and-so alleged in court on 6-7-89 that Joe Schmoe molested Sally Schmoe" rather than speculating, based only on your inferences and guesswork and/or unprovable anecdotal tales, as to what really happened between Joe and Sally. The former is fact; the latter, even if YOU believe it to be what really happened, is fiction BECAUSE YOU DON'T HAVE A SOURCE.and it is entirely the product of your own imagination and inferences. Yes, I know, novels and other fiction are often better at getting at the "real truth" behind human behavior than dry nonnfiction social science is. But that doesn't prevent such fiction from being libel if it atrributes UNPROVABLE crimes to a living person.
In either event, as many posters have mentioned, you should get competent local legal advice BEFORE you publish anything even potentially libelous, ie. anything based on events in the life of a living person.
Now, getting back to your comment that got my lawyer hackles up. Assuming that your intent was (1) a fictionalized roman a clef and that you just wanted to get the message across about the evils of child abuse, not to point the finger specifically at Joe, WHY would you think your lawyer is in any way "lying" if that's what he argues at trial? It is not "lying" for a defense lawyer to make the plaintiff prove his case, and to suggest to the jury that plaintiff has not carried that burden of proof if there are other reasonable interpretations of what you wrote, i.e. that it is a generalized morality play and not a diatribe against Mr. Schmoe. And if such a general call to arms is your intent and your goal, rather than "outing" a particular perp, then what the lawyer would be arguing on your behalf is TRUE anyway (not that a lawyer's arguments have to be "true" in the same sense that testimony has to be "true", but that's another thread).
Sounds to me like you've got some thinking to do about what you really intend to accomplish. Good luck working it out,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Airshow hold-harmless agreement, part 6
On Apr 20, 7:32 am, Stan Brown <the_stan_br...@fastmail.fm> wrote:
> Thu, 19 Apr 2007 07:27:55 -0400 from Mike Jacobs
> <mjacobs...@gmail.com>:
>
> > If the paper you
> > were thinking about signing said in effect, "I promise not to sue you,
> > but if I change my mind and _do_ sue you, then, it's up to the court
> > whether this agreement means anything or not," it would be silly: what
> > incentive do you have not to go ahead and sue anyway, and see what
> > happens?
>
> Perhaps I'm missing something, but isn't that implicit in *every*
> contract?
Yes, of course it's up to the court, if presented with the issue, to decide whether every contract is valid or not. No contract would actually say that out loud, and everyone knows it is implied. That's why I said "in effect", not "in so many words" when paraphrasing the agreement in question. But that's not exactly what I was arguing.
> But even when both parties go into a contract in good faith, there's
> the possibility one of them will later have a change of heart and try
> to get out of it. One way to do that is by trying to show a defect in
> the contract itself.
But not every contract contains a clause that imposes additional burdens on a party in breach if that party attempts, unsuccessfully, to have the contract declared void judicially. Absent such a clause, the party in breach who unsuccessfully sues to overturn a contract is no worse off than if he had simply taken his lumps without trying to void the contract. That additional "in terrorem" clause is what I was discussing and is what gives him additional incentive not to sue to void the contract even if he winds up on the losing end of the stick.
> Or am I misinterpreting what you said?
I think so. My point was that absent some "kicker" that would penalize a party for trying to void an unfavorable contract, there is little or nothing that would keep that party from trying to get out of it on the slightest provocation, other than (as you said) good faith and the hopes of continued good business relations with the other contracting party. If the party signing the agreement has no prospect or desire of continuing to deal with the other party after the present deal is over -- as in OP's case -- those implied and unwritten incentives are lessened or absent. So in a situation like this it makes sense for the party proposing the agreement (the organizers) to insist on some more protection against suit than merely relying on the other side's good faith.
On a different plane, a similar conundrum arises in the personal injury arena with attorneys who promise their victim clients that if they lose the suit, the client will owe nothing, not even investigation expenses and court costs. I don't do that, because IMO it brings out of the woodwork the kind of prospective clients who want to sue over every little thing because they don't feel they have anything personal at stake if they lose other than the claim itself, so "there's no harm in asking." Economics and human psychology are closely interrelated even when both sides act in good faith, so I find that clients are more likely to feel invested in their own claim, do the work necessary to prepare, and agree to a reasonable settlement rather than insisting on trial, if they _do_ have something to lose if they lose.
> And is this "hold harmless" thing a contract anyway? OP was a
> volunteer at an airplane exhibit (as we learned, eventually), and the
> sponsoring organization wants him to sign away his rights to sue. But
> did I miss something: what consideration has that organization
> offered? Is "enjoyment" by a working volunteer a consideration,
> legally?
Well, if OP looks on it as "work", as if he's doing the organizers a favor for nothing in return, it's pretty clear he won't sign the agreement. However, throughout this thread I have been keeping in mind that most people who "work" as volunteers on rickety old airplanes or sleek racers do so as a labor of love, because it's their hobby, because they are fascinated with the romance of the golden age of aviation and so forth, and what they get out of it is the joy and thrill of participating, not merely spectating, at an event recreating -- or creating -- history. That's why I considered this to be a "recreational activity" that other people in OP's shoes might not only work for free to get, but might even pay money on top of that for the opportunity (as many do). I think of civil war re-enactor "volunteers" and such in the same light. As such, the consideration the organizers give for OP's agreement is allowing OP onto the airport grounds around the exhibit and allowing him to participate, which they do not have to do if he does not sign the agreement and which is therefore a legal detriment to the organizers sufficent to provde consideration.
Cheers,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Thu, 19 Apr 2007 07:27:55 -0400 from Mike Jacobs
> <mjacobs...@gmail.com>:
>
> > If the paper you
> > were thinking about signing said in effect, "I promise not to sue you,
> > but if I change my mind and _do_ sue you, then, it's up to the court
> > whether this agreement means anything or not," it would be silly: what
> > incentive do you have not to go ahead and sue anyway, and see what
> > happens?
>
> Perhaps I'm missing something, but isn't that implicit in *every*
> contract?
Yes, of course it's up to the court, if presented with the issue, to decide whether every contract is valid or not. No contract would actually say that out loud, and everyone knows it is implied. That's why I said "in effect", not "in so many words" when paraphrasing the agreement in question. But that's not exactly what I was arguing.
> But even when both parties go into a contract in good faith, there's
> the possibility one of them will later have a change of heart and try
> to get out of it. One way to do that is by trying to show a defect in
> the contract itself.
But not every contract contains a clause that imposes additional burdens on a party in breach if that party attempts, unsuccessfully, to have the contract declared void judicially. Absent such a clause, the party in breach who unsuccessfully sues to overturn a contract is no worse off than if he had simply taken his lumps without trying to void the contract. That additional "in terrorem" clause is what I was discussing and is what gives him additional incentive not to sue to void the contract even if he winds up on the losing end of the stick.
> Or am I misinterpreting what you said?
I think so. My point was that absent some "kicker" that would penalize a party for trying to void an unfavorable contract, there is little or nothing that would keep that party from trying to get out of it on the slightest provocation, other than (as you said) good faith and the hopes of continued good business relations with the other contracting party. If the party signing the agreement has no prospect or desire of continuing to deal with the other party after the present deal is over -- as in OP's case -- those implied and unwritten incentives are lessened or absent. So in a situation like this it makes sense for the party proposing the agreement (the organizers) to insist on some more protection against suit than merely relying on the other side's good faith.
On a different plane, a similar conundrum arises in the personal injury arena with attorneys who promise their victim clients that if they lose the suit, the client will owe nothing, not even investigation expenses and court costs. I don't do that, because IMO it brings out of the woodwork the kind of prospective clients who want to sue over every little thing because they don't feel they have anything personal at stake if they lose other than the claim itself, so "there's no harm in asking." Economics and human psychology are closely interrelated even when both sides act in good faith, so I find that clients are more likely to feel invested in their own claim, do the work necessary to prepare, and agree to a reasonable settlement rather than insisting on trial, if they _do_ have something to lose if they lose.
> And is this "hold harmless" thing a contract anyway? OP was a
> volunteer at an airplane exhibit (as we learned, eventually), and the
> sponsoring organization wants him to sign away his rights to sue. But
> did I miss something: what consideration has that organization
> offered? Is "enjoyment" by a working volunteer a consideration,
> legally?
Well, if OP looks on it as "work", as if he's doing the organizers a favor for nothing in return, it's pretty clear he won't sign the agreement. However, throughout this thread I have been keeping in mind that most people who "work" as volunteers on rickety old airplanes or sleek racers do so as a labor of love, because it's their hobby, because they are fascinated with the romance of the golden age of aviation and so forth, and what they get out of it is the joy and thrill of participating, not merely spectating, at an event recreating -- or creating -- history. That's why I considered this to be a "recreational activity" that other people in OP's shoes might not only work for free to get, but might even pay money on top of that for the opportunity (as many do). I think of civil war re-enactor "volunteers" and such in the same light. As such, the consideration the organizers give for OP's agreement is allowing OP onto the airport grounds around the exhibit and allowing him to participate, which they do not have to do if he does not sign the agreement and which is therefore a legal detriment to the organizers sufficent to provde consideration.
Cheers,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Airshow hold-harmless agreement, part 5
On Apr 16, 7:05 am, David Harmon <sou...@netcom.com> wrote:
> On Sun, 15 Apr 2007 07:50:34 -0400 in misc.legal.moderated, "Mike
> Jacobs" <mjacobs...@gmail.com> wrote,
>
> > But the presence of such a clause has an
> >intended in terrorem effect to prevent such suits from being filed in
> >the first place. It obviously did a pretty good job of terrorizing
> >OP.
>
> (That intention, by the way, is incompatible with "deep respect"
> and is just the kind of thing that some call chicken.)
A promise without consequences is an illusory promise. If the paper you were thinking about signing said in effect, "I promise not to sue you, but if I change my mind and _do_ sue you, then, it's up to the court whether this agreement means anything or not," it would be silly: what incentive do you have not to go ahead and sue anyway, and see what happens? But if it says, "I promise not to sue you, and if I (or my widow, who may not be of the same risk-taking mentality as I am and may think I was stupid for crawling around in antique flying machines in the first place) change my mind then not only will I lose the suit, but I will have to pay the costs you incur to defend against that suit", you or your widow may think twice before suing. In that (actual) case, would you feel that the fact the agreement has teeth, and actually imposes consequences that mean something, means they are disrespecting you? No, IMO having you sign a silly piece of paper that means nothing because it prevents nothing would be more disrespectful. Adults recognize that their actions have consequences. Children ask for "do-overs".
Decedents often put in-terrorem clauses in their wills to prevent will contests (e.g. I hereby bequeath $x to cousin Willy, but if Willy contests the Will, that bequest is null and void"). Do they disrespect their own relatives by doing that? Not in my opinion. They do it to keep a certain measure of discipline and control, even after they die, yes, but they do it out of concern for the harm that strife could cause in the family.
In fact, if you take that view to the extreme you could make an argument that _all_ laws (and all written contracts) are chickens**t and disrespect everyone because, hey, we're all good-natured at heart, right, and we all know the difference between right and wrong and how to behave? So who does the govamint think they are, telling us what to do? Well, we don't always know what to do, even if our intentions are good, and it's not always that clear just on basic ethical principles how one should behave when various people's interests are conflicting, and even the wisest and most ethical person realizes that there is a need to have a frame of reference outside of the self to provide structure to those ethical impulses as well as pursuit of legitimate self interest. So we need law. And contracts, typically, need to consider all the "what-ifs" that could conceivably happen that might twist or get in the way of the main purpose of the agreement. That doesn't mean the contracting parties disrespect each other; in fact, the more powerful and feared the other side is, the more it is necessary to put mechanisms into the contract that keep both sides honest. As used to be said in the context of nuclear disarmament treaties with the Soviet Union, "trust, but verify."
> >Do you still feel that way after reading my post from 4/12?
>
> Yes. But it's beside the point. Let's move on. I'm still only
> asking about the actual meaning of the proposed agreement.
OK. And to cut that short too, I do agree with your interpretation of the language of the contract simply as a matter of plain English. Yours is certainly one possible reading of the consequences of the agreement that is apparent from its grammar and syntax.
> >Because "any person" is broad enough to cover all the various kinds of
> >people who may be authorized by law to act in OP's shoes in
> >affirmatively suing one of the protected entities, and saves having to
> >recite the whole laundry list.
>
> Well, the wording of the part involving "any person" is not about
> who brings the suit, but rather who is injured,
Exactly. Which is why I think the most reasonable interpretation does _not_ make you indemnify them when "anyone" randomly brings suit, but only when _you_ (or your successor) bring suit on behalf of "anyone" who is injured.
> so what would the
> laundry list be? "any person" is not only broad enough to include
> anybody who sets foot on the entire airport, it also strongly
> suggests that they intended exactly that. I would MUCH rather read
> the laundry list if they intended anything less.
"All persons" may include, in addition to the listed "employees and representatives", your (the participant's) minor children, as well as anyone else on whose behalf you could be authorized by law to bring suit against the organizers. Remember, it is possible and legal to buy a "chose in action", the inchoate right to sue for a personal injury tort. So, if one of your fellow participants (who had also signed an identical agreement) got hurt, and was unable to sue directly because he signed the agreement, he may sell his right to sue to you, and (unless the agreement was broad enough to apply to "any person") you could then bring suit against the organizers on his behalf. The "any person" language is intended to prevent this as well as any other creative ways someone might come up with to try to get around the suit prohibition.
> Then they add the laundry list, anyway, with "including but not
> limited to PARTICIPANT or his/her employees or representatives or
> property". Which only emphasizes that they intend to include
> persons other than those.
Yes, it does. Which is why, at a stretch, a court _might_ interpret it to mean that you would be personally responsible for defending the organizers against any suit brought by anyone else, even if completely unrelated to your involvement in the project and even if you (or your representatives, etc.) had no role in bringing the suit. The only reason why I, and the majority of other posters on this thread, felt that was not likely to happen is that it is not _reasonable_. I'm not about to tell you it CAN'T happen, because given your serious concern about the issue, I would be going out on a very shaky limb to do so. But courts generally apply a "rule of reason" to such language and when faced with two possible interpretations, will reject the unreasonable one and adopt the one that makes sense.
> They also seem to have no problem with a laundry list of parties for
> me to indemnify.
Maybe I didn't make myself clear. It's not the length of the laundry list that makes it necessary to use a sweeping generalization instead, it's the indeterminacy of the list. The list of groups and persons to be protected is readily determined. But as to the list of persons who might be injured who might sue, no matter what list of individuals or categories one might come up with, a clever person with an intent to get around the purpose of the agreement could find a legitimate way to arrange things so that suit might still be possible by someone not on the list. As by selling his chose in action to someone else, frex. Therefore, the only way to bar _all_ suits is to use sufficiently broad language such as "any persons".
> >Yes, IF IT"S FOUND TO BE YOUR FAULT.
>
> Why do you think it's got to be my fault? Nowhere in the agreement
> does it say anything about it being my fault.
Because of the "rule of reason". It is highly unlikely that a court would determine the agreement meant that you were personally responsible for paying all legal costs and damages the organizers incur when sued by anybody regardless of whether their claim was connected to you in any way. You are not an insurance company; that would be engaging in the business of insurance, gratis no less, and would be an unreasonable interpretation of the meaning of the language of the agreement.
> "Hold harmless" as far as I can tell has nothing whatsoever to do
> with who's fault it is. I could promise "I will hold Mike Jacobs
> harmless for any injury sustained by Barry Gold" and then if he were
> to sue you for an injury, I would have to defend you, and reimburse
> you. Right?
Yes, but the only circumstance I can foresee in which you would have to do that without having any recourse against _me_ for causing you to incur that loss, is if you were an insurance company and had collected premiums in consideration for accepting that risk. If you were an individual acting as surety for me in connection with my dealings with Mr. Gold, and if I did something that hurt Mr. Gold and he sued me for it, he could collect those damages from you the surety, but then you the surety would have a "subrogated" right to claim reimbursement from me, your principal, because I was the one primarily responsible for causing the harm. Similary, EVEN IF the agreement you are contemplating were held to put you in a position of acting as individual surety to the entire organization, when they were sued by anyone, regardless of their connection to you, and even if that unrelated injured party came after you for some reason (say, because the organizers and the city had all gone defunct, and you were the only one who had deep pockets) you would still have a subrogated right to reimbursement of those costs you incurred on behalf of the parties you indemnified for something that was no fault of your own. In other words, for most practical purposes it's a wash, since the unrelated injured parties would have no greater rights against you than against the (deeper-pocketed) organizers you were indemnifying, and the organizers (as primarily responsible indemnitees) do NOT have a primary right to demand that YOU step in and defend THEM against the third party claim. They would only have the right to do that if you were their insurance company. You are not; at most (and this is based on YOUR reading of the "any persons" clause), you are on the hook as an individual surety for the organizers' list of protected persons.
> The wording of the agreement is parallel to that.
>
> >"Hold harmless" _does_ basically mean the same thing as "indemnify".
> >But "indemnify" means 2 different things. It means affirmatively
> >paying out money to cover someone else's loss, OR it means taking
> >steps to ensure the other person won't suffer a financial loss in the
> >first place.
>
> But either way, the agreement is all about me having to cover claims
> that I would not have to cover without the it. Without the
> agreement, I would be responsible for damages that were MY FAULT.
> So those _additional_ costs, that the agreement makes me responsible
> for, would have to come from the set of things that were NOT my
> fault.
Or would come from your (or your legal successors') having breached the agreement by suing in spite of having agreed not to sue.
> So there, unless I am wrong, we have me obligated for
> * judgement awarded against "the association" or someone else
> * on behalf of any random member of the public
> * for something that is not my fault.
> I don't understand why that's not true.
The only reason it might not be true is the rule of reason. But that's a pretty good reason. Yet, no one can guarantee that the result you fear is 100% impossible. The law of indemnity, insurance, and suretyship is very complex and hard even for many lawyers to understand, and all any of us on this thread have provided is a skimming of the surface and a paraphrase of the most likely bottom lines without going into all the reasons why. Again, if you are concerned over this provision, you should NOT sign the agreement and should decline to participate. It IS an agreement to indemnify someone else that imposes obligations on you that you would not have in the absence of the agreement, and no one can tell what it really means unless and until someone challenges it in court and gets a definitive judicial ruling on the effect of its specific language. Until then, many interpretations are possible.
> I don't even understand why
> it's not an obvious issue jumping out on the first reading, even if
> it's actually a false alarm.
It _did_ jump out to you on first reading. To me too. And if this lengthy discussion with many participants has not set your mind at ease, then you should not sign the agreement. Signing off this thread, and Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> On Sun, 15 Apr 2007 07:50:34 -0400 in misc.legal.moderated, "Mike
> Jacobs" <mjacobs...@gmail.com> wrote,
>
> > But the presence of such a clause has an
> >intended in terrorem effect to prevent such suits from being filed in
> >the first place. It obviously did a pretty good job of terrorizing
> >OP.
>
> (That intention, by the way, is incompatible with "deep respect"
> and is just the kind of thing that some call chicken.)
A promise without consequences is an illusory promise. If the paper you were thinking about signing said in effect, "I promise not to sue you, but if I change my mind and _do_ sue you, then, it's up to the court whether this agreement means anything or not," it would be silly: what incentive do you have not to go ahead and sue anyway, and see what happens? But if it says, "I promise not to sue you, and if I (or my widow, who may not be of the same risk-taking mentality as I am and may think I was stupid for crawling around in antique flying machines in the first place) change my mind then not only will I lose the suit, but I will have to pay the costs you incur to defend against that suit", you or your widow may think twice before suing. In that (actual) case, would you feel that the fact the agreement has teeth, and actually imposes consequences that mean something, means they are disrespecting you? No, IMO having you sign a silly piece of paper that means nothing because it prevents nothing would be more disrespectful. Adults recognize that their actions have consequences. Children ask for "do-overs".
Decedents often put in-terrorem clauses in their wills to prevent will contests (e.g. I hereby bequeath $x to cousin Willy, but if Willy contests the Will, that bequest is null and void"). Do they disrespect their own relatives by doing that? Not in my opinion. They do it to keep a certain measure of discipline and control, even after they die, yes, but they do it out of concern for the harm that strife could cause in the family.
In fact, if you take that view to the extreme you could make an argument that _all_ laws (and all written contracts) are chickens**t and disrespect everyone because, hey, we're all good-natured at heart, right, and we all know the difference between right and wrong and how to behave? So who does the govamint think they are, telling us what to do? Well, we don't always know what to do, even if our intentions are good, and it's not always that clear just on basic ethical principles how one should behave when various people's interests are conflicting, and even the wisest and most ethical person realizes that there is a need to have a frame of reference outside of the self to provide structure to those ethical impulses as well as pursuit of legitimate self interest. So we need law. And contracts, typically, need to consider all the "what-ifs" that could conceivably happen that might twist or get in the way of the main purpose of the agreement. That doesn't mean the contracting parties disrespect each other; in fact, the more powerful and feared the other side is, the more it is necessary to put mechanisms into the contract that keep both sides honest. As used to be said in the context of nuclear disarmament treaties with the Soviet Union, "trust, but verify."
> >Do you still feel that way after reading my post from 4/12?
>
> Yes. But it's beside the point. Let's move on. I'm still only
> asking about the actual meaning of the proposed agreement.
OK. And to cut that short too, I do agree with your interpretation of the language of the contract simply as a matter of plain English. Yours is certainly one possible reading of the consequences of the agreement that is apparent from its grammar and syntax.
> >Because "any person" is broad enough to cover all the various kinds of
> >people who may be authorized by law to act in OP's shoes in
> >affirmatively suing one of the protected entities, and saves having to
> >recite the whole laundry list.
>
> Well, the wording of the part involving "any person" is not about
> who brings the suit, but rather who is injured,
Exactly. Which is why I think the most reasonable interpretation does _not_ make you indemnify them when "anyone" randomly brings suit, but only when _you_ (or your successor) bring suit on behalf of "anyone" who is injured.
> so what would the
> laundry list be? "any person" is not only broad enough to include
> anybody who sets foot on the entire airport, it also strongly
> suggests that they intended exactly that. I would MUCH rather read
> the laundry list if they intended anything less.
"All persons" may include, in addition to the listed "employees and representatives", your (the participant's) minor children, as well as anyone else on whose behalf you could be authorized by law to bring suit against the organizers. Remember, it is possible and legal to buy a "chose in action", the inchoate right to sue for a personal injury tort. So, if one of your fellow participants (who had also signed an identical agreement) got hurt, and was unable to sue directly because he signed the agreement, he may sell his right to sue to you, and (unless the agreement was broad enough to apply to "any person") you could then bring suit against the organizers on his behalf. The "any person" language is intended to prevent this as well as any other creative ways someone might come up with to try to get around the suit prohibition.
> Then they add the laundry list, anyway, with "including but not
> limited to PARTICIPANT or his/her employees or representatives or
> property". Which only emphasizes that they intend to include
> persons other than those.
Yes, it does. Which is why, at a stretch, a court _might_ interpret it to mean that you would be personally responsible for defending the organizers against any suit brought by anyone else, even if completely unrelated to your involvement in the project and even if you (or your representatives, etc.) had no role in bringing the suit. The only reason why I, and the majority of other posters on this thread, felt that was not likely to happen is that it is not _reasonable_. I'm not about to tell you it CAN'T happen, because given your serious concern about the issue, I would be going out on a very shaky limb to do so. But courts generally apply a "rule of reason" to such language and when faced with two possible interpretations, will reject the unreasonable one and adopt the one that makes sense.
> They also seem to have no problem with a laundry list of parties for
> me to indemnify.
Maybe I didn't make myself clear. It's not the length of the laundry list that makes it necessary to use a sweeping generalization instead, it's the indeterminacy of the list. The list of groups and persons to be protected is readily determined. But as to the list of persons who might be injured who might sue, no matter what list of individuals or categories one might come up with, a clever person with an intent to get around the purpose of the agreement could find a legitimate way to arrange things so that suit might still be possible by someone not on the list. As by selling his chose in action to someone else, frex. Therefore, the only way to bar _all_ suits is to use sufficiently broad language such as "any persons".
> >Yes, IF IT"S FOUND TO BE YOUR FAULT.
>
> Why do you think it's got to be my fault? Nowhere in the agreement
> does it say anything about it being my fault.
Because of the "rule of reason". It is highly unlikely that a court would determine the agreement meant that you were personally responsible for paying all legal costs and damages the organizers incur when sued by anybody regardless of whether their claim was connected to you in any way. You are not an insurance company; that would be engaging in the business of insurance, gratis no less, and would be an unreasonable interpretation of the meaning of the language of the agreement.
> "Hold harmless" as far as I can tell has nothing whatsoever to do
> with who's fault it is. I could promise "I will hold Mike Jacobs
> harmless for any injury sustained by Barry Gold" and then if he were
> to sue you for an injury, I would have to defend you, and reimburse
> you. Right?
Yes, but the only circumstance I can foresee in which you would have to do that without having any recourse against _me_ for causing you to incur that loss, is if you were an insurance company and had collected premiums in consideration for accepting that risk. If you were an individual acting as surety for me in connection with my dealings with Mr. Gold, and if I did something that hurt Mr. Gold and he sued me for it, he could collect those damages from you the surety, but then you the surety would have a "subrogated" right to claim reimbursement from me, your principal, because I was the one primarily responsible for causing the harm. Similary, EVEN IF the agreement you are contemplating were held to put you in a position of acting as individual surety to the entire organization, when they were sued by anyone, regardless of their connection to you, and even if that unrelated injured party came after you for some reason (say, because the organizers and the city had all gone defunct, and you were the only one who had deep pockets) you would still have a subrogated right to reimbursement of those costs you incurred on behalf of the parties you indemnified for something that was no fault of your own. In other words, for most practical purposes it's a wash, since the unrelated injured parties would have no greater rights against you than against the (deeper-pocketed) organizers you were indemnifying, and the organizers (as primarily responsible indemnitees) do NOT have a primary right to demand that YOU step in and defend THEM against the third party claim. They would only have the right to do that if you were their insurance company. You are not; at most (and this is based on YOUR reading of the "any persons" clause), you are on the hook as an individual surety for the organizers' list of protected persons.
> The wording of the agreement is parallel to that.
>
> >"Hold harmless" _does_ basically mean the same thing as "indemnify".
> >But "indemnify" means 2 different things. It means affirmatively
> >paying out money to cover someone else's loss, OR it means taking
> >steps to ensure the other person won't suffer a financial loss in the
> >first place.
>
> But either way, the agreement is all about me having to cover claims
> that I would not have to cover without the it. Without the
> agreement, I would be responsible for damages that were MY FAULT.
> So those _additional_ costs, that the agreement makes me responsible
> for, would have to come from the set of things that were NOT my
> fault.
Or would come from your (or your legal successors') having breached the agreement by suing in spite of having agreed not to sue.
> So there, unless I am wrong, we have me obligated for
> * judgement awarded against "the association" or someone else
> * on behalf of any random member of the public
> * for something that is not my fault.
> I don't understand why that's not true.
The only reason it might not be true is the rule of reason. But that's a pretty good reason. Yet, no one can guarantee that the result you fear is 100% impossible. The law of indemnity, insurance, and suretyship is very complex and hard even for many lawyers to understand, and all any of us on this thread have provided is a skimming of the surface and a paraphrase of the most likely bottom lines without going into all the reasons why. Again, if you are concerned over this provision, you should NOT sign the agreement and should decline to participate. It IS an agreement to indemnify someone else that imposes obligations on you that you would not have in the absence of the agreement, and no one can tell what it really means unless and until someone challenges it in court and gets a definitive judicial ruling on the effect of its specific language. Until then, many interpretations are possible.
> I don't even understand why
> it's not an obvious issue jumping out on the first reading, even if
> it's actually a false alarm.
It _did_ jump out to you on first reading. To me too. And if this lengthy discussion with many participants has not set your mind at ease, then you should not sign the agreement. Signing off this thread, and Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Airshow hold-harmless agreement, part 4
On Apr 14, 7:55 am, Stan Brown <the_stan_br...@fastmail.fm> wrote:
> I don't know where Jacobs gets "dangerous recreational" out of the
> OP's query. These are volunteers facilitating a civic event, *not*
> people hanging on to landing gear of airplanes to get a free ride.
I was reading between the lines of OP's post which had intentionally deleted identifying information that would have told us a little more about the event. I still don't have all the details, but from his subsequent post it sounds like I was _almost_ right in my guess. It sounds like this is an appearance at OP's home airport by a particular restored and flying antique airplane, perhaps a WW2 bomber (there are several "on the circuit" who do that), or maybe a 1920's Ford Trimotor airliner, and the sponsoring organization (which I assumed was a recreational aviation organization, possibly the one I belong to myself, although there are others) was soliciting help from the city fathers as well as local volunteers to control the crowds, help people aboard the plane, etc. as they let people crawl around in it, and some of them (perhaps for an extra entrance fee) would get to fly in it as passengers for a brief sightseeing round trip.
That would fit my conception of a "dangerous recreational activity". Which is not to say that people routinely get killed or injured that way, but there are dangers and risks inherent in flying around, or even just crawling around in, a 60-year old WW2 bomber or a 75-year-old airliner. When you keep in mind that there are "old" 747s rotting in junkyards already because the airlines feel they have too many hours on them to safely continue to fly in first-line airline service, perhaps the risks of flying around in a 1927 tin-can flivver can be put into perspective. And if the exhibited aircraft is in fact going to engage in flying operations at OP's event, then all the kinds of dangers I mentioned in my original post for airshows do apply, even if the plane is not going to be engaging in aerobatics or skydiving or other activities that pose more risks than ordinary flying.
> If these were people participating in dangerous recreational
> activities, I think it's reasonable to conclude that they assume an
> extra measure of risk. But I see no reason why volunteers in a civic
> event should be expected to do so. Essentially that says that the
> organizers of the event aren't held to their ordinary duty of care.
Where to draw the line between acceptable and unacceptable attempts at indemnification would be a legal issue. There is no bright-line test. And if OP is uncomfortable about signing such a form before participating in the event, he should decline to participate in the event. That is exactly the kind of thing the courts look into in deciding whether an attempted indemnification is reasonable or not; whether the signer had a realistic choice to decline by refusing to participate in the activity. Where the victim had no real choice, as where the defendant is providing a necessary service, such pre-injury indemnification is generally not permitted.
So, my focus was more on "recreational" than on "dangerous." Frex, gyms and spas routinely have new members sign such releases. If you don't like that deal, don't join the club.
> Note the word in the release: "Exhibit". I see no reason to think
> that's referring to any intrinsically dangerous activity.
Flying _is_ intrinsically dangerous. But not in the "legal" sense of the jargon term of art "intrinsically dangerous activity", which is not how I intended to use it. An activity which is _legally_ "intrinsically dangerous" is one which, by reason of the factors that lead to that label being legally applied to that activity, exposes the person doing that activity to potentially strict liability for any injury that occurs as a result, even in the absence of provable negligence. Frex, a fireworks plant. If it explodes, the owners are liable to anyone injured as a result, regardless of why it exploded.
> "exhibit", in the ordnary meaning of the word, connotes something
> static that people look at -- it makes me think of tagboard on
> tables, or walk-in booths maybe.
I agree with Stan that IMO it would not be reasonable to require indemnity releases of the volunteers if that was the kind of exhibit we were talking about.
> If I've missed something, and we've actually been told that this
> "civic event" is a dangeous recreational activity for the volunteers
> who are facilitating it, then I'd be glad to know where that was
> said.
I still may be wrong in my guess. But if it's the kind of event I described above, I do think it would be an appropriate one for the courts to consider upholding the form as valid if anyone should challenge it by bringing a suit.
But the bottom line is, OP _does_ have a choice. If he wants to participate, he will sign the form. If he doesn't want to sign the form, he can decline to participate. It is as simple as that.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I don't know where Jacobs gets "dangerous recreational" out of the
> OP's query. These are volunteers facilitating a civic event, *not*
> people hanging on to landing gear of airplanes to get a free ride.
I was reading between the lines of OP's post which had intentionally deleted identifying information that would have told us a little more about the event. I still don't have all the details, but from his subsequent post it sounds like I was _almost_ right in my guess. It sounds like this is an appearance at OP's home airport by a particular restored and flying antique airplane, perhaps a WW2 bomber (there are several "on the circuit" who do that), or maybe a 1920's Ford Trimotor airliner, and the sponsoring organization (which I assumed was a recreational aviation organization, possibly the one I belong to myself, although there are others) was soliciting help from the city fathers as well as local volunteers to control the crowds, help people aboard the plane, etc. as they let people crawl around in it, and some of them (perhaps for an extra entrance fee) would get to fly in it as passengers for a brief sightseeing round trip.
That would fit my conception of a "dangerous recreational activity". Which is not to say that people routinely get killed or injured that way, but there are dangers and risks inherent in flying around, or even just crawling around in, a 60-year old WW2 bomber or a 75-year-old airliner. When you keep in mind that there are "old" 747s rotting in junkyards already because the airlines feel they have too many hours on them to safely continue to fly in first-line airline service, perhaps the risks of flying around in a 1927 tin-can flivver can be put into perspective. And if the exhibited aircraft is in fact going to engage in flying operations at OP's event, then all the kinds of dangers I mentioned in my original post for airshows do apply, even if the plane is not going to be engaging in aerobatics or skydiving or other activities that pose more risks than ordinary flying.
> If these were people participating in dangerous recreational
> activities, I think it's reasonable to conclude that they assume an
> extra measure of risk. But I see no reason why volunteers in a civic
> event should be expected to do so. Essentially that says that the
> organizers of the event aren't held to their ordinary duty of care.
Where to draw the line between acceptable and unacceptable attempts at indemnification would be a legal issue. There is no bright-line test. And if OP is uncomfortable about signing such a form before participating in the event, he should decline to participate in the event. That is exactly the kind of thing the courts look into in deciding whether an attempted indemnification is reasonable or not; whether the signer had a realistic choice to decline by refusing to participate in the activity. Where the victim had no real choice, as where the defendant is providing a necessary service, such pre-injury indemnification is generally not permitted.
So, my focus was more on "recreational" than on "dangerous." Frex, gyms and spas routinely have new members sign such releases. If you don't like that deal, don't join the club.
> Note the word in the release: "Exhibit". I see no reason to think
> that's referring to any intrinsically dangerous activity.
Flying _is_ intrinsically dangerous. But not in the "legal" sense of the jargon term of art "intrinsically dangerous activity", which is not how I intended to use it. An activity which is _legally_ "intrinsically dangerous" is one which, by reason of the factors that lead to that label being legally applied to that activity, exposes the person doing that activity to potentially strict liability for any injury that occurs as a result, even in the absence of provable negligence. Frex, a fireworks plant. If it explodes, the owners are liable to anyone injured as a result, regardless of why it exploded.
> "exhibit", in the ordnary meaning of the word, connotes something
> static that people look at -- it makes me think of tagboard on
> tables, or walk-in booths maybe.
I agree with Stan that IMO it would not be reasonable to require indemnity releases of the volunteers if that was the kind of exhibit we were talking about.
> If I've missed something, and we've actually been told that this
> "civic event" is a dangeous recreational activity for the volunteers
> who are facilitating it, then I'd be glad to know where that was
> said.
I still may be wrong in my guess. But if it's the kind of event I described above, I do think it would be an appropriate one for the courts to consider upholding the form as valid if anyone should challenge it by bringing a suit.
But the bottom line is, OP _does_ have a choice. If he wants to participate, he will sign the form. If he doesn't want to sign the form, he can decline to participate. It is as simple as that.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Airshow hold-harmless agreement, part 3
13, 7:52 am, David Harmon <sou...@netcom.com> wrote:
> On Thu, 12 Apr 2007 08:22:30 -0400 in misc.legal.moderated,
> d...@practical.org wrote,
>
> > That if some person other than you or whoever the contract
> >refers to as any of your "employees or representatives" makes any
> >claim against any of the indemnitees to the effect that you or whoever
> >are any of the persons the contract refers as any of your "employees
> >or representatives" for the purposes of the event caused that other
> >person damage during or in any other way connected with the event in a
> >manner that subjects any of the indemnitees to any cost/expense to
> >respond, you shall reimburse each affected indemnitee for all that
> >cost expense.
>
> That's the part I am most worried about.
While "d"'s comment is basically accurate, I still think OP is worrying about the wrong thing. It sounds like OP thinks he, and he alone, will have to use his deep pockets to fund the entire organization when they get sued by countless random people who get injured at the event. That's not what it means, and is also not what "d" paraphrased it to mean either.
There are 3 very unlikely situations where OP could wind up actually having to pay something to somebody out of pocket:
1) If somebody other than OP, but who is authorized by law or contract to stand in OP's shoes, sues one of the protected entities ON BEHALF OF OP despite OP's having signed an agreement not to do so, then OP will have to reimburse anyone who is harmed by their having to pay extra costs, etc. to smack his claim back down again and get the baseless lawsuit dismissed OR, in the unlikely event the suit succeeds despite the agreement being upheld, to pay (back) the damages that were awarded to OP's representatives in the suit. Thus, if frex OP dies, and his widow (she's not the one who signed it, so is she in breach by suing? Yes, because OP's signature is legally binding on his successors, assigns and representatives) sues, and wins, then OP's estate has to indemnify the person or organization that OP's widow sued, by paying back the money they just won. Yes, that means it's a wash. And in that case, the payment of extra costs is fair because the protected parties would not have incurred those costs except for the fact of OP's representatives having breached, on his behalf, his agreement not to sue. Note, in the event such a suit IS successful, it will generally have to be so "over the dead body" of the indemnity agreement (i.e. a court will have ruled, as a preliminary matter, that the paper OP signed isn't worth the pulp it's printed on) so that OP's estate in fact _won't_ have to pay anything back to the person his widow sued, IF they win. But the presence of such a clause has an intended in terrorem effect to prevent such suits from being filed in the first place. It obviously did a pretty good job of terrorizing OP.
2) If someone ELSE whom OP IS RESPONSIBLE FOR INJURING sues one of the protected entities, then OP, not the protected entity, is theoretically the one who will have to pay for the defense and/or indemnify the damages awarded to the victim in his suit vs. the protected entity. That is also fair, since it is OP who caused the damage, and he doesn't get out of his primary liability for damage HE causes to others just because he signed an agreement that he would not sue _them_. Of course, if the injured person is a fellow participant, that participant is also limited in _his_ ability to sue OP, or any other protected entity, by reason of the hold harmless agreement that the injured participant signed. So, the only time this scenario (2) is likely to happen is if someone OTHER THAN a "participant", i.e. a "civilian" gets injured AND that injury is OP's own fault. Note well here that OP WOULD BE LIABLE IN TORT TO THAT INJURED PERSON WHETHER OR NOT he had signed any indemnity agreement, so the agreement DOES NOT CHANGE the duties the law imposes on persons in OP's position. As a practical matter, if that happens the sponsoring entity would take charge and hire lawyers, etc. to protect OP (as one of the protected "participants"), not the other way around.
3) If one of OP's employees, whom OP assigned to work at the event, gets injured, then OP agrees that OP, not the event organizer, is the one who will be financially responsible to pay for the employee's injury. Again, this is fair since it is a responsibility OP would have by law to his own employees whether or not he signed any indemnity agreement; and the practical effect of it is, if one of OP's employees sues the event organizer, that group will file a "third party" claim to bring OP into the suit based on OP's contractual duty to indemnify the organizer against OP's employee's claim. This latter eventuality is of course something OP will not need to worry about if he is a "participant" as a solo individual and not as a business with involved employees. But the agreement, which _every_ participant signs, has to be broad enough to cover participant exhibitors, etc. who ARE businesses with employees.
So, rather than going thru all the theoretical rigmarole, the practical upshot is this: if the court decides the agreement is valid, all it means is, OP can't sue and neither can anyone else acting on his behalf. Or, if the court voids the agreement as overreaching or unconscionable or because there was gross negligence involved or whatever, then people CAN sue the organizers and participants, including OP, but they could have sued OP anyway if there were no agreement, so the agrement doesn't significantly increase OP's risk exposure at all (except his risk of having nobody to sue if he gets injured himself).
> By the way, thanks for the great trouble you and everybody else have
> taken to explain things to me.
>
> Back when I first encountered "Hold Harmless", the first resource I
> stumbled upon to explain it was Black's Law Dictionary. According
> to Black's, "Hold Harmless" means pretty close to the same thing as
> "indemnify" and that sounds to me pretty close to the same thing as
> "I have to pay for everything." Or in other words, what you said.
"Hold harmless" _does_ basically mean the same thing as "indemnify". But "indemnify" means 2 different things. It means affirmatively paying out money to cover someone else's loss, OR it means taking steps to ensure the other person won't suffer a financial loss in the first place. What OP is doing if he signs the agreement is (except as outlined above) agreeing to make sure the protected parties (the "indemnitees") don't get harmed by anything OP does in the first place, i.e. by his promising not to sue them, and also by his acknowledging that he is responsible for his own conduct that may injure himself or others and his promise that he (and his widow) won't try to foist the blame off on anyone else.
> All my friends, and all of the other posters here, are saying that
> it doesn't mean that; it means only that I can't sue them. I would
> probably be OK with that, as chicken as it obviously is.
Do you still feel that way after reading my post from 4/12?
> I don't get it. If I was just releasing them from a claim I might
> make, then what is the point of the whole "any person" clause.
Because "any person" is broad enough to cover all the various kinds of people who may be authorized by law to act in OP's shoes in affirmatively suing one of the protected entities, and saves having to recite the whole laundry list.
> According to my understanding, I couldn't sue for damages to some
> other random member of the public anyway.
But you could if you were that person's legal representative, e.g. the parent of a minor child, or the widow of someone killed in the accident, or the guardian of someone who is mentally incompetent, etc. Or even if you just bought the right to sue from the person who was injured. Yes, that can be done and is done all the time and there is nothing unethical about trading in injury claims; that's what insurance companies do.
> So that clause only comes
> in to play when some third party has a claim and/or sues.
No, as outlined above. But it _does_ come into play if an unrelated third party sues you, since you are one of the protected indemnitees too.
> For example: Somebody I never saw before gets hurt. They sue the
> "association" and also name me, saying "He was standing right there,
> he should have prevented it.
>
> So according to one reading, "hold harmless" means that I have to
> hire them a lawyer, and then when we lose I have to pay for any
> judgement against them.
Yes, IF IT"S FOUND TO BE YOUR FAULT. Which you would have to do anyway, even if you had not signed any agreement. In practice, if the third party sues both you and the organization, it is the organization's lawyers who rely on the agreement to protect YOU as well as the organization. They are, after all, no more or less than a collection of individual participants, all of whom signed such agreements and all of whom are protected by it. They're on your side, man! They're in it together with you, they're not the enemy!
In theory, yes, one can imagine a bizzare scenario where OP could wind up being the only indemnitor and have to pay defense costs out of pocket for a suit he otherwise had nothing to do with, if there is nobody else who signed an indemnity agreement, and if an unrelated third party, who didn't sign any such agreement, then sues the organization for an injury that likewise has nothing directly to do with OP.
But if OP is the only "participant" who signed an agreement, hell must have frozen over. OP overlooks the law relating to apportionment of multiple indemnity agreements, which usually comes into play when, frex, there is more than one insurance policy providing liability coverage. A court would have to determine whether one policy is primary (responsible for initial defense costs, as well as damages up to their policy limit) and the others only come into play secondarily if the first one isn't enough, OR whether all are considered primarily responsible for the indemnification and in that case must share the costs proportionally. In either event, OP is just one of (probably) hundreds of participants who, at best, are considered "secondary" indemnitors (so that the sponsoring organization, and/or its insurance company if any, are who will primarily pay for the lawyers, etc. to defend against claims) or who, at worst, have to foot the bill themselves if they are _all_ found to be primary indemnitors (highly unlikely) but then they would SHARE proportional responsibility with all the other participants who signed similar agreements. Thru all the permutations discussed above, that latter scenario, the one OP appears to worry the most about, is so unlikely that he would be better off spending his worry energy focusing on the risk of being hit by a falling asteroid.
> If that is a viable reading of it, and now
> I am not the only person who thinks so, then the deal is off.
If you still feel that way after reading this, then both you and the organization are better off if you do not participate. They cannot give you any guarantees in life, and neither can anyone else. Only those who are comfortable taking full responsibility for their own actions (with or without a financial safety net such as an insurance policy you obtain on your own) should put themselves at risk in situations like this. If OP declines to participate, we should respect his choice.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> On Thu, 12 Apr 2007 08:22:30 -0400 in misc.legal.moderated,
> d...@practical.org wrote,
>
> > That if some person other than you or whoever the contract
> >refers to as any of your "employees or representatives" makes any
> >claim against any of the indemnitees to the effect that you or whoever
> >are any of the persons the contract refers as any of your "employees
> >or representatives" for the purposes of the event caused that other
> >person damage during or in any other way connected with the event in a
> >manner that subjects any of the indemnitees to any cost/expense to
> >respond, you shall reimburse each affected indemnitee for all that
> >cost expense.
>
> That's the part I am most worried about.
While "d"'s comment is basically accurate, I still think OP is worrying about the wrong thing. It sounds like OP thinks he, and he alone, will have to use his deep pockets to fund the entire organization when they get sued by countless random people who get injured at the event. That's not what it means, and is also not what "d" paraphrased it to mean either.
There are 3 very unlikely situations where OP could wind up actually having to pay something to somebody out of pocket:
1) If somebody other than OP, but who is authorized by law or contract to stand in OP's shoes, sues one of the protected entities ON BEHALF OF OP despite OP's having signed an agreement not to do so, then OP will have to reimburse anyone who is harmed by their having to pay extra costs, etc. to smack his claim back down again and get the baseless lawsuit dismissed OR, in the unlikely event the suit succeeds despite the agreement being upheld, to pay (back) the damages that were awarded to OP's representatives in the suit. Thus, if frex OP dies, and his widow (she's not the one who signed it, so is she in breach by suing? Yes, because OP's signature is legally binding on his successors, assigns and representatives) sues, and wins, then OP's estate has to indemnify the person or organization that OP's widow sued, by paying back the money they just won. Yes, that means it's a wash. And in that case, the payment of extra costs is fair because the protected parties would not have incurred those costs except for the fact of OP's representatives having breached, on his behalf, his agreement not to sue. Note, in the event such a suit IS successful, it will generally have to be so "over the dead body" of the indemnity agreement (i.e. a court will have ruled, as a preliminary matter, that the paper OP signed isn't worth the pulp it's printed on) so that OP's estate in fact _won't_ have to pay anything back to the person his widow sued, IF they win. But the presence of such a clause has an intended in terrorem effect to prevent such suits from being filed in the first place. It obviously did a pretty good job of terrorizing OP.
2) If someone ELSE whom OP IS RESPONSIBLE FOR INJURING sues one of the protected entities, then OP, not the protected entity, is theoretically the one who will have to pay for the defense and/or indemnify the damages awarded to the victim in his suit vs. the protected entity. That is also fair, since it is OP who caused the damage, and he doesn't get out of his primary liability for damage HE causes to others just because he signed an agreement that he would not sue _them_. Of course, if the injured person is a fellow participant, that participant is also limited in _his_ ability to sue OP, or any other protected entity, by reason of the hold harmless agreement that the injured participant signed. So, the only time this scenario (2) is likely to happen is if someone OTHER THAN a "participant", i.e. a "civilian" gets injured AND that injury is OP's own fault. Note well here that OP WOULD BE LIABLE IN TORT TO THAT INJURED PERSON WHETHER OR NOT he had signed any indemnity agreement, so the agreement DOES NOT CHANGE the duties the law imposes on persons in OP's position. As a practical matter, if that happens the sponsoring entity would take charge and hire lawyers, etc. to protect OP (as one of the protected "participants"), not the other way around.
3) If one of OP's employees, whom OP assigned to work at the event, gets injured, then OP agrees that OP, not the event organizer, is the one who will be financially responsible to pay for the employee's injury. Again, this is fair since it is a responsibility OP would have by law to his own employees whether or not he signed any indemnity agreement; and the practical effect of it is, if one of OP's employees sues the event organizer, that group will file a "third party" claim to bring OP into the suit based on OP's contractual duty to indemnify the organizer against OP's employee's claim. This latter eventuality is of course something OP will not need to worry about if he is a "participant" as a solo individual and not as a business with involved employees. But the agreement, which _every_ participant signs, has to be broad enough to cover participant exhibitors, etc. who ARE businesses with employees.
So, rather than going thru all the theoretical rigmarole, the practical upshot is this: if the court decides the agreement is valid, all it means is, OP can't sue and neither can anyone else acting on his behalf. Or, if the court voids the agreement as overreaching or unconscionable or because there was gross negligence involved or whatever, then people CAN sue the organizers and participants, including OP, but they could have sued OP anyway if there were no agreement, so the agrement doesn't significantly increase OP's risk exposure at all (except his risk of having nobody to sue if he gets injured himself).
> By the way, thanks for the great trouble you and everybody else have
> taken to explain things to me.
>
> Back when I first encountered "Hold Harmless", the first resource I
> stumbled upon to explain it was Black's Law Dictionary. According
> to Black's, "Hold Harmless" means pretty close to the same thing as
> "indemnify" and that sounds to me pretty close to the same thing as
> "I have to pay for everything." Or in other words, what you said.
"Hold harmless" _does_ basically mean the same thing as "indemnify". But "indemnify" means 2 different things. It means affirmatively paying out money to cover someone else's loss, OR it means taking steps to ensure the other person won't suffer a financial loss in the first place. What OP is doing if he signs the agreement is (except as outlined above) agreeing to make sure the protected parties (the "indemnitees") don't get harmed by anything OP does in the first place, i.e. by his promising not to sue them, and also by his acknowledging that he is responsible for his own conduct that may injure himself or others and his promise that he (and his widow) won't try to foist the blame off on anyone else.
> All my friends, and all of the other posters here, are saying that
> it doesn't mean that; it means only that I can't sue them. I would
> probably be OK with that, as chicken as it obviously is.
Do you still feel that way after reading my post from 4/12?
> I don't get it. If I was just releasing them from a claim I might
> make, then what is the point of the whole "any person" clause.
Because "any person" is broad enough to cover all the various kinds of people who may be authorized by law to act in OP's shoes in affirmatively suing one of the protected entities, and saves having to recite the whole laundry list.
> According to my understanding, I couldn't sue for damages to some
> other random member of the public anyway.
But you could if you were that person's legal representative, e.g. the parent of a minor child, or the widow of someone killed in the accident, or the guardian of someone who is mentally incompetent, etc. Or even if you just bought the right to sue from the person who was injured. Yes, that can be done and is done all the time and there is nothing unethical about trading in injury claims; that's what insurance companies do.
> So that clause only comes
> in to play when some third party has a claim and/or sues.
No, as outlined above. But it _does_ come into play if an unrelated third party sues you, since you are one of the protected indemnitees too.
> For example: Somebody I never saw before gets hurt. They sue the
> "association" and also name me, saying "He was standing right there,
> he should have prevented it.
>
> So according to one reading, "hold harmless" means that I have to
> hire them a lawyer, and then when we lose I have to pay for any
> judgement against them.
Yes, IF IT"S FOUND TO BE YOUR FAULT. Which you would have to do anyway, even if you had not signed any agreement. In practice, if the third party sues both you and the organization, it is the organization's lawyers who rely on the agreement to protect YOU as well as the organization. They are, after all, no more or less than a collection of individual participants, all of whom signed such agreements and all of whom are protected by it. They're on your side, man! They're in it together with you, they're not the enemy!
In theory, yes, one can imagine a bizzare scenario where OP could wind up being the only indemnitor and have to pay defense costs out of pocket for a suit he otherwise had nothing to do with, if there is nobody else who signed an indemnity agreement, and if an unrelated third party, who didn't sign any such agreement, then sues the organization for an injury that likewise has nothing directly to do with OP.
But if OP is the only "participant" who signed an agreement, hell must have frozen over. OP overlooks the law relating to apportionment of multiple indemnity agreements, which usually comes into play when, frex, there is more than one insurance policy providing liability coverage. A court would have to determine whether one policy is primary (responsible for initial defense costs, as well as damages up to their policy limit) and the others only come into play secondarily if the first one isn't enough, OR whether all are considered primarily responsible for the indemnification and in that case must share the costs proportionally. In either event, OP is just one of (probably) hundreds of participants who, at best, are considered "secondary" indemnitors (so that the sponsoring organization, and/or its insurance company if any, are who will primarily pay for the lawyers, etc. to defend against claims) or who, at worst, have to foot the bill themselves if they are _all_ found to be primary indemnitors (highly unlikely) but then they would SHARE proportional responsibility with all the other participants who signed similar agreements. Thru all the permutations discussed above, that latter scenario, the one OP appears to worry the most about, is so unlikely that he would be better off spending his worry energy focusing on the risk of being hit by a falling asteroid.
> If that is a viable reading of it, and now
> I am not the only person who thinks so, then the deal is off.
If you still feel that way after reading this, then both you and the organization are better off if you do not participate. They cannot give you any guarantees in life, and neither can anyone else. Only those who are comfortable taking full responsibility for their own actions (with or without a financial safety net such as an insurance policy you obtain on your own) should put themselves at risk in situations like this. If OP declines to participate, we should respect his choice.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Job offer rescinded. Any recourse?
On Apr 12, 8:22 am, Kelly.Iva...@gmail.com wrote:
> I have interviewed
> with a prospective employer and have received a detailed offer. I have
> accepted said offer and given my current employer a month notice.
> Two weeks before my start date in the new company, the new employer
> has notified me that they would have to "push back" my offer,
> indefinitely.
Ouch. However, unless you had a specific length of employment contracted for (e.g. a 1 year minimum guarantee) with your new employer, most USA states apply the rule of "employment at will" meaning, you can quit or be fired at any time, for any reason, or for no reason at all, as long as it is not for an illegally discriminatory reason based on your membership in a protected class (race, sex, national origin, religion, disability, etc).
> Does anyone know whether I have any legal course of action?
If, as you do NOT say, you made your acceptance of the new offer with a specific written recitation and acknowledgement that you would be taking changes in your position, moving, etc. at your own cost and detriment based on your reliance on their offer, you MAY have a legally sufficient claim of "detrimental reliance" or so-called "promissory estoppel" to make your new company responsible for any damages you incur from their reneging on the offer, contingent of course on YOU making every reasonable effort to obtain new, comparable employment elsewhere.
Speaking of which, what if anything prevents you from going back to your present employer, telling them frankly what happened, tearing up your resignation (figuratively I mean) and asking to be kept on? If they like the job you are doing now and haven't already hired a replacement whom they would have to similarly boot out before she starts, wouldn't it be easier for both of you if you just stay on? Worth a shot.
> (the new employer is in New York state)
I don't know NY law. Perhaps there are specifics of local law that would be helpful to you. IMO talking to a NY lawyer in or near the town you were going to move to (look 'em up online, find one who does "employment law", pick up the phone and call; the brief screening consultation on the phone should be free, except for your phone charges of course). Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I have interviewed
> with a prospective employer and have received a detailed offer. I have
> accepted said offer and given my current employer a month notice.
> Two weeks before my start date in the new company, the new employer
> has notified me that they would have to "push back" my offer,
> indefinitely.
Ouch. However, unless you had a specific length of employment contracted for (e.g. a 1 year minimum guarantee) with your new employer, most USA states apply the rule of "employment at will" meaning, you can quit or be fired at any time, for any reason, or for no reason at all, as long as it is not for an illegally discriminatory reason based on your membership in a protected class (race, sex, national origin, religion, disability, etc).
> Does anyone know whether I have any legal course of action?
If, as you do NOT say, you made your acceptance of the new offer with a specific written recitation and acknowledgement that you would be taking changes in your position, moving, etc. at your own cost and detriment based on your reliance on their offer, you MAY have a legally sufficient claim of "detrimental reliance" or so-called "promissory estoppel" to make your new company responsible for any damages you incur from their reneging on the offer, contingent of course on YOU making every reasonable effort to obtain new, comparable employment elsewhere.
Speaking of which, what if anything prevents you from going back to your present employer, telling them frankly what happened, tearing up your resignation (figuratively I mean) and asking to be kept on? If they like the job you are doing now and haven't already hired a replacement whom they would have to similarly boot out before she starts, wouldn't it be easier for both of you if you just stay on? Worth a shot.
> (the new employer is in New York state)
I don't know NY law. Perhaps there are specifics of local law that would be helpful to you. IMO talking to a NY lawyer in or near the town you were going to move to (look 'em up online, find one who does "employment law", pick up the phone and call; the brief screening consultation on the phone should be free, except for your phone charges of course). Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Airshow hold-harmless agreement, part 2
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.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> 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.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Ticketed for aggressive driving behavior in Wales
On Apr 12, 8:22 am, nick_ped...@hotmail.com wrote:
> I was away in Wales with my girlfriend last weekend and happened to be
> travelling past a toll road.
Unclear what you mean. Were you waiting in line to pay your toll and enter the toll road, or just passing by on an adjecent free road? If the latter, how if at all did the presence of the toll road have anything to do with your situation?
> It was a narrow section of road, so we
> had to wait for cars on the otherside to pass before we were let
> through.
What, a one-lane, 2-way road, as in a construction zone, with flagmen sending through batches of traffic, first one way, then another? I can't picture what you're talking about other than this, which seems pretty improbable, so I'm at a loss to understand the relationship of all the involved vehicles.
> We had mountain bikes on the back of the car and they were
> jutting out slighltly
To the side, or to the rear? The former would be more of a problem, especially on a narrow road -- maybe there are local ordinances prohibiting loads that protrude from the side of your vehicle.
>. A number of drivers were clipping them and we
> were worried about damage....
If we're talking about a sideswipe situation, I'm deeply puzzled that you didn't just pull over farther to the curb side of the roadway to make more clearance, even partly onto the shoulder if that was necessary to make room; I don't see how pulling forward would have helped, unless your situation was with cross traffic, rather than opposing traffic on the same road. In that case, if you had moved up in line too soon so that your car's tail was still sticking out and exposed in a lane of through traffic crossing your path, that would be your fault, since the other traffic had the right of way. But I'm still unclear on your exact situation.
Whether or not your car's stopped rear was protruding into moving traffic, these passing cars were COLLIDING with your bikes. Didn't they stop? Did you take their tag numbers down and report them as a hit-and-run? Something isn't quite matching up in your story -- there's a lot of holes where I would expect to hear a different reaction than what you did.
> We thought the solution would be to pull in as far as possible, but
> were too close to the driver ahead to do so enough.
That means (ahem) you were _already_ pulled forward as far as reasonably possible and, as you said, any closer would be too close.
> The driver in
> front of us had approximately 3m of space to move forward,
That's really not very much room. From the driver's seat, the other driver probably couldn't see ground between his front end and the car in front of him, and many drivers are reluctant -- rightly -- to get any closer to other cars in line than that. You are _not_ supposed to get right up within a millimeter or so of the next guy's bumper; that's how accidents, and/or road rage incidents, happen.
> so as we
> were unable to get out of the car and ask him to do so due to the
> traffic on the other side,
What about on your curb side? Wasn't it safe for your passenger to get out and walk along the shoulder to go talk politely to the fellow in front, with the line of stopped cars being between her and the moving cars as a buffer?
> I used the horn together with hand
> gestures to signal him to move forward.
There is no universally recognized "signal" in that situation. You're not on a steamer at sea, where the captain ahead of you could ask the first mate, "now, there's that otgher boat overtaking us and she just sent a signal. What did two short blasts of the ship's horn followed by one long one mean, according to the Manual of Rules of the Road?" and the mate would look it up in the book and say, "Sir, that means they have lepers aboard and are requesting quarantine" or whatever. All the other driver "interprets" youro honking and gesturing to mean is, that you are impatient, and are angry at _him_, when he's in the same, stationary and becalmed boat as you are.
> He didn't. So after a few more
> bashes to the bikes, we tried the horn again as I tried slowly pulling
> in as far as I could.
Which probably alarmed the guy in front of you a good deal, since (as you said above) you were already in just about as far as you could without risk of hitting him.
> Again, no response. A few more beeps to the horn
> later, he emerged angry and shouting a fair number of threatening
> obscenities to which we responded in the manner any normal person
> would.
And what manner would that be? Were you apologetic, or did you curse back?
> He claimed that we had bumped into his car, which as far as we
> could tell was not the case.
"As far as we could tell" isn't legally enough to overcome an assertion by the other party that you DID hit his car. All that means is, you didn't hvae the opportunity to observe well enough, so that your testimony on that issue would be worthless in finding out what really happened.
> Needless to say, there was certainly no
> damage.
That's not the issue. Invading his safety cushion of space around his vehicle, to the point you maike any contact with it at all, is the issue. Why weren't you directing your efforts more at stopping the folks who kept doing that to YOU, by hitting your bikes, than to forcing the innocent guy in front of you to move when he obviously already felt he had pulled up as far as he normally would go?
> After some abusive and obnoxious behaviour on his behalf,
What was the behaviour on _your_ behalf, other than the honking and gestures? What exactly did each of you say to each other? That is what the magistrate is going to want to know, when this comes to trial.
> he then
> exclaimed he was going to take my number plate, and I assumed he was
> doing this to make a false insurance claim. But I've since received a
> letter from the Welsh police today informing me that they intend to
> procecute me for careless driving...
I don't know what the elements of that offense are under Welsh law, but around here, localities are passing laws against "aggressive driving" that often criminalize excessive honking and/or gestures even if there is no other offense. If, in conjuction with that, the facts show that you pulled forward too soon so that your rear was still sticking out into traffic, and/or that you pulled too close to the one in front so that your cars made contact, that may well be enough to support the charge. You will have to ask a local solicitor about the peculiarities of local law, to be sure.
> Does he have a leg to stand on?
Yes. It's not the other guy, it's the Crown, that is concerned about your behaviour under the circumstances. Two wrongs do not make a right, so regardless of the reason, the Bobbies don't want you honking and making gestures at a fellow motorist in a way that is quite likely to lead to a breach of the peace.
> And what steps should I take next?!
Either pay the ticket fine, if that is an option, or find a good barrister to go to court with you, or go by yourself, explain the situation WITHOUT casting any blame or aspersions on the other fellow, and throw yourself on the mercy of the Court.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I was away in Wales with my girlfriend last weekend and happened to be
> travelling past a toll road.
Unclear what you mean. Were you waiting in line to pay your toll and enter the toll road, or just passing by on an adjecent free road? If the latter, how if at all did the presence of the toll road have anything to do with your situation?
> It was a narrow section of road, so we
> had to wait for cars on the otherside to pass before we were let
> through.
What, a one-lane, 2-way road, as in a construction zone, with flagmen sending through batches of traffic, first one way, then another? I can't picture what you're talking about other than this, which seems pretty improbable, so I'm at a loss to understand the relationship of all the involved vehicles.
> We had mountain bikes on the back of the car and they were
> jutting out slighltly
To the side, or to the rear? The former would be more of a problem, especially on a narrow road -- maybe there are local ordinances prohibiting loads that protrude from the side of your vehicle.
>. A number of drivers were clipping them and we
> were worried about damage....
If we're talking about a sideswipe situation, I'm deeply puzzled that you didn't just pull over farther to the curb side of the roadway to make more clearance, even partly onto the shoulder if that was necessary to make room; I don't see how pulling forward would have helped, unless your situation was with cross traffic, rather than opposing traffic on the same road. In that case, if you had moved up in line too soon so that your car's tail was still sticking out and exposed in a lane of through traffic crossing your path, that would be your fault, since the other traffic had the right of way. But I'm still unclear on your exact situation.
Whether or not your car's stopped rear was protruding into moving traffic, these passing cars were COLLIDING with your bikes. Didn't they stop? Did you take their tag numbers down and report them as a hit-and-run? Something isn't quite matching up in your story -- there's a lot of holes where I would expect to hear a different reaction than what you did.
> We thought the solution would be to pull in as far as possible, but
> were too close to the driver ahead to do so enough.
That means (ahem) you were _already_ pulled forward as far as reasonably possible and, as you said, any closer would be too close.
> The driver in
> front of us had approximately 3m of space to move forward,
That's really not very much room. From the driver's seat, the other driver probably couldn't see ground between his front end and the car in front of him, and many drivers are reluctant -- rightly -- to get any closer to other cars in line than that. You are _not_ supposed to get right up within a millimeter or so of the next guy's bumper; that's how accidents, and/or road rage incidents, happen.
> so as we
> were unable to get out of the car and ask him to do so due to the
> traffic on the other side,
What about on your curb side? Wasn't it safe for your passenger to get out and walk along the shoulder to go talk politely to the fellow in front, with the line of stopped cars being between her and the moving cars as a buffer?
> I used the horn together with hand
> gestures to signal him to move forward.
There is no universally recognized "signal" in that situation. You're not on a steamer at sea, where the captain ahead of you could ask the first mate, "now, there's that otgher boat overtaking us and she just sent a signal. What did two short blasts of the ship's horn followed by one long one mean, according to the Manual of Rules of the Road?" and the mate would look it up in the book and say, "Sir, that means they have lepers aboard and are requesting quarantine" or whatever. All the other driver "interprets" youro honking and gesturing to mean is, that you are impatient, and are angry at _him_, when he's in the same, stationary and becalmed boat as you are.
> He didn't. So after a few more
> bashes to the bikes, we tried the horn again as I tried slowly pulling
> in as far as I could.
Which probably alarmed the guy in front of you a good deal, since (as you said above) you were already in just about as far as you could without risk of hitting him.
> Again, no response. A few more beeps to the horn
> later, he emerged angry and shouting a fair number of threatening
> obscenities to which we responded in the manner any normal person
> would.
And what manner would that be? Were you apologetic, or did you curse back?
> He claimed that we had bumped into his car, which as far as we
> could tell was not the case.
"As far as we could tell" isn't legally enough to overcome an assertion by the other party that you DID hit his car. All that means is, you didn't hvae the opportunity to observe well enough, so that your testimony on that issue would be worthless in finding out what really happened.
> Needless to say, there was certainly no
> damage.
That's not the issue. Invading his safety cushion of space around his vehicle, to the point you maike any contact with it at all, is the issue. Why weren't you directing your efforts more at stopping the folks who kept doing that to YOU, by hitting your bikes, than to forcing the innocent guy in front of you to move when he obviously already felt he had pulled up as far as he normally would go?
> After some abusive and obnoxious behaviour on his behalf,
What was the behaviour on _your_ behalf, other than the honking and gestures? What exactly did each of you say to each other? That is what the magistrate is going to want to know, when this comes to trial.
> he then
> exclaimed he was going to take my number plate, and I assumed he was
> doing this to make a false insurance claim. But I've since received a
> letter from the Welsh police today informing me that they intend to
> procecute me for careless driving...
I don't know what the elements of that offense are under Welsh law, but around here, localities are passing laws against "aggressive driving" that often criminalize excessive honking and/or gestures even if there is no other offense. If, in conjuction with that, the facts show that you pulled forward too soon so that your rear was still sticking out into traffic, and/or that you pulled too close to the one in front so that your cars made contact, that may well be enough to support the charge. You will have to ask a local solicitor about the peculiarities of local law, to be sure.
> Does he have a leg to stand on?
Yes. It's not the other guy, it's the Crown, that is concerned about your behaviour under the circumstances. Two wrongs do not make a right, so regardless of the reason, the Bobbies don't want you honking and making gestures at a fellow motorist in a way that is quite likely to lead to a breach of the peace.
> And what steps should I take next?!
Either pay the ticket fine, if that is an option, or find a good barrister to go to court with you, or go by yourself, explain the situation WITHOUT casting any blame or aspersions on the other fellow, and throw yourself on the mercy of the Court.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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