Legally speaking: The reason for the age limits
MikeTJumps
Workshop and Robert L. Feldman, their lawyer. For those of you who will take
the time to read the entire posting, you will find out that the Relative
Workshop has already spent over one million dollars in getting past lawsuits
dismissed dealing with folks that could legally contract for Tandem services.
The warning is clear: Underage tandems will expose the manufacturers and the
association to much greater liability and financial damages.
Mike Turoff
(This was a note from TK to a person asking why such a thing was necessary.)
Note from T. K. Donle:
I received your email through Mike Turoff. He felt I should answer your
questions, because it was I that petitioned the USPA Board of Directors on
behalf of Relative Workshop to create a more respectable age limit for tandem
skydivers. I've attached two letters, one from Bill Booth our company
president, and the other is from our tandem attorney, Robert Feldman. If you
take the time to read those letters, you'll have a real good idea why USPA made
the responsible decision to change the age limit.
Here is a short list of why the age limit was put at "age of majority." There
is no particular order in this list of reasons, I'm just slamming them down as
I think of them. Your questions are similar to ones we heard at the Board
Meeting. Once you're educated on the subject, I think you'll agree that we
made the right decision.
1) Without a legal waiver, no one is protected from a lawsuit getting out of
control. Remember, anyone can sue anyone in the USA, anytime they wish for
whatever reason. How expensive the lawsuit is to defend depends on whether
there is a valid waiver, and if the plaintiff has a good reason to sue in the
first place. The discovery portion of a lawsuit, when all defendants and the
plaintiff are subjected to depositions by defense and plaintiff's attorneys is
what really costs money. Keep in mind that attorneys charge from $225-$350 per
hour. If RWS is sued outside of Florida, we have to pay for two attorneys.
2) Who needs to be protected? The Dz, the instructor, the owner of the
equipment, the pilot, the owner of the aircraft, the owner of the airport, the
manufacturers of all the equipment used, and USPA. These are the typical
defendants in every tandem lawsuit.
3) RWS has spent $1.1 million on tandem defense since 1986. We have never
been to court, and we've never settled out of court with a plaintiff. This
money was purely for covering the cost of our legal defense. Essentially
defending every Dz and instructor's right to make tandem jumps.
4) Waivers are not legal when signed by anyone who is not of the "age of
majority."
5) Parents and legal guardians cannot waive the rights of a minor. So
parental consent for a minor to make a tandem parachute jump makes the waiver
"invalid."
6) If you don't have a valid waiver, any lawsuit is prolonged, thus costing
the defendants a ton of money. Ask any decent lawyer and he/she will tell you
that you stand very little chance of winning a suit when a minor is involved.
Judges and juries are very sympathetic to kids when they injured or killed.
When a kid is injured, he/she can defer the lawsuit, meaning normal statute of
limitations does not apply. The kid can sue you when they reach the "age of
majority."
7) USPA has had an age limit for parachuting since the beginning of time. We
just upped it to make more sense in the litigious society in which we live.
8) As a manufacturer, I have my neck in a noose every time my gear is used on
a tandem jump anywhere in the USA. Not only my neck, but the necks of our 50
employees.
9) If we have one tandem lawsuit involving a minor, we will be forced to close
our doors.
10) Liability insurance to cover these types of lawsuits can cost us
$150K-200K per year. We choose to remain "self-insured" knowing that one
lawsuit will make purchasing insurance the following year impossible.
11) USPA paid $336K for insurance this year.
12) USPA had a $200K insurance hike from what it was 5 years ago.
13) USPA can handle one "lawsuit from a minor" because insurance would pay it.
But when the 2nd suit comes its way, you can kiss their $3.5 million in net
worth away in a heart beat.
14) Without USPA backing us, government regulation, both federal and local,
will eat us up. DZs would close by the dozens, and soon it would be hard to
find a nice place to jump. Because we'd all be outlaws.
15) I don't trust DZs to make the right legal decision for themselves, never
mind my interests.
16) BSRs are about SAFETY, both for the jumper and the SPORT as a whole.
17) Other types of learning disciplines don't attract nearly the number of
lawsuits that tandem does. Why? Purely because in tandem, we don't give the
student the training, knowledge or responsibility to save his/her own life. We
do that in other disciplines and it's the student's responsibility to save
their own butt, and that's the major difference that many jumpers don't
realize.
18) PIA doesn't protect manufacturers, they are purely a trade association.
It's not in their agenda to create age limits.
19) USPA convinced the FAA not to put an age limit on tandem. I feel that was
a big mistake. USPA's reason for that? They didn't want to create more
federal rules regarding any type of parachuting. So I'm glad USPA made the
right decision to put this age limit in place.
20) Many on the USPA Board gave the same arguments you put forth. But after
they were educated to the risks involved, they voted 18-1 to pass the "age of
majority." Believe me, they did the right thing.
21) Kids should not be jumping from aircraft. They don't possess the maturity
to really understand the risks. Let them go to wind tunnels if they wish to
feel the sensation of a skydive.
22) Any parent that allows their kid to jump from an airplane is doing it for
the "ego boost." And they're just plain irresponsible!
Well, hopefully you're starting to get the picture. If you have more
questions, please send them my way. Our company has been working for almost 30
years to make skydiving safer and more enjoyable "for adults." Kids have
enough neat stuff to play with these days, let them play. When they get old
enough, if they still want to jump, hopefully we'll still be here to assist
them in that effort.
Best regards,
T.K. DONLE
Vice President
Tandem Program Director
The Uninsured Relative Workshop, Inc.
Note from Robert L. Feldman:
Law Offices
ROBERT L. FELDMAN
8900 SW 107th Avenue
Suite 203
Miami, Florida 33176
Telephone: 305 - 598-4841
Telecopier: 305 - 598-4842
____________
Board Certified Aviation Lawyer
9 July, 2002
Board of Directors
United States Parachute Association
1440 Duke Street
Alexandria, VA 22314
Re: Risks of Permitting Minors to Make Tandem Parachute Jumps
Dear Members of the Board:
I am an attorney, certified by the Florida Bar in Aviation Law. I am also a
life member of USPA and hold a D license. I practice a significant amount of
parachuting injury defense on behalf of drop zones, instructors and parachuting
equipment and component manufacturers.
One of my clients, The Uninsured Relative Workshop, has called to my attention
that there will be a discussion at your meeting in July about the position of
USPA towards tandem parachute jumping for tandem passengers under the age of
eighteen. Because critical consideration of this matter has arisen only since
the revision of FAR Part 105, I feel that, in our litigious society, it is
important that you understand the ramifications of any decision you might reach
that approves, or further that does not explicitly ban, such parachuting
activities for minors.
As all of you are aware, before a tandem passenger is permitted to jump, he or
she is required to sign one or more waiver and assumption of risk agreements.
These agreements, sometimes signed after the prospective jumper views a video
explaining the dangers of tandem parachute jumping, state that parachuting is a
dangerous activity which might result in injury or death to the participant,
and that in exchange for being permitted to make a parachute jump, they
expressly assume the risks inherent in such activities and further agree not to
sue any of the
named released individuals (e.g. the drop zone owner, the supplier of airlift,
the aircraft owner,
Board of Directors
9 July, 2002
Page Two
the land owner, the tandem instructor, and the equipment manufacturers.) Many
of these documents also include a covenant not to sue that provides that the
participant will not sue any of the named released individuals.
When a student is injured or dies during a tandem jump, it is not unusual for a
lawsuit to result. These lawsuits, in most cases, are for negligence,
negligent supervision, and if a death results, for wrongful death. In the
injury cases, the plaintiff typically seems to develop amnesia as to any facts
indicating that it ever crossed his or her mind, prior to the parachute jump,
that he or she might be injured in participating in the parachuting activity.
In defending these lawsuits, the goal of the defense attorney (and their
clients) is to make the lawsuit go away as quickly as possible, with the least
amount of financial damage to the defendant. Lawsuits that must be defended
through trial and appeal stages can often cost well over $100,000.00 in
attorneys' fees and litigation costs, exclusive of the amount of damages that a
sympathetic jury might assess. The waiver and assumption of risk documents
provide good defenses to offset the allegations of the plaintiffs' complaint.
Those documents and the covenant not to sue serve to discourage the plaintiff's
attorney, who is usually working under a contingency fee agreement where the
attorney receives a percentage of the amount of money they recover, from
continuing to fight a case where they might lose more than they recover. The
contract not to sue, if upheld in the trial, might enable the defendant to
recover not only the amount of any judgment assessed against it in the
principal case, but also the defense costs and attorney's fees it paid out or
owes. In many instances, when a plaintiff realizes that continuing to
prosecute their case may cost them in the end, they drop or settle their case
at an early stage.
The risk of permitting persons who have not yet reached the age of majority to
make tandem jumps is that such persons are below the age where they are able to
enter into binding contracts, except for necessities. And parachuting
activities will never be construed as necessities. This enables the waiver,
assumption of risk and covenant not to sue contract to be voided and the
protection that the contract affords to be negated. A signature of a parent or
legal guardian is of no help because courts have held that such persons cannot
contract away the legal rights of the minor.
I will leave it to the attendees at your meeting to describe their experiences
in defending lawsuits with valid waivers and to your imagination as to the
potential liability exposure that might result
without them, enough to put tandem equipment manufacturers out of business.
But it is not just the actual jump participants and manufacturers who are at
risk, should minors be permitted to jump. As you are aware, USPA is often a
named party in these lawsuits. Thus, the entire future
Board of Directors
9 July, 2002
Page Three
of sport parachuting and skydiving may be jeopardized by the thoughtless greed
of those who
would seek to permit minors to jump to increase their profits.
There are other factors to be considered as well, such as the level of maturity
and responsibility of younger persons, their ability to appreciate the dangers
involved in making a parachute jump and their appreciation of the requirement
of complying with the instructions of their instructors to further their
safety. These factors may increase the risk of an accident occurring in the
first place.
I urge you to vote to not permit minors to participate in any kind of parachute
jump activities, tandem or otherwise and to affirmatively take a position that
minors may not participate in parachute jumping of any kind whatsoever. This
regulation should become part of the BSR's. The future of the sport is at
stake.
In your consideration of this matter, I will be happy to answer any questions
you may have. If I did not have other commitments, I would have attended your
meeting in person, but I may be reached on my cell phone, when I am not
traveling or in meetings. Mr. T.K. Donle, of The Uninsured Relative Workshop
has that number.
Thank you.
Sincerely,
Robert L. Feldman
D-2673
RLF/ljf
TANDEM JUMPING WITHOUT WAIVERS
Every drop zone I've been to requires each and every person who boards an
aircraft to sign an Assumption of Risk Agreement. We do this because
experience has taught us that these "Waivers" are often the only protection we
have in case of a lawsuit. Simply put, they are the only reason we can still
skydive in the USA.
However, there is a growing group of DZ operators who have determined that
they are no longer going to make everyone who jumps sign a valid waiver. I am
of course talking about those operators who are planning to take up "under-age"
students on tandem jumps on a commercial basis. (Having the under-age student,
both parents and grandparents, and all other living relatives sign a "waiver"
will NOT make it valid)
Some of these operators have told me that it is a risk they are willing to
take. Good for them! The problem is that the risk they take is not theirs
alone. If anything goes wrong, many other people and organizations will also be
sued… and I don't feel anyone has a right to risk my business, or PD's or
USPA's for
that matter.
For instance, a single lawsuit involving a USPA Tandem Master, jumping a
Cypres equipped Vector tandem, with a PD reserve, and a Strong main, with no
valid waiver, would most likely result in the end of Relative Workshop, PD,
Strong Enterprises, Airtec, and USPA. Plus, of course, the foolish Drop Zone
that was willing to "take the risk." If you haven't yet been sued for
$10,000,000, then you don't have the right to say that this is unrealistic. It
is not only realistic, it is a near certainty. Think what would happen to our
sport with all those companies gone.
And then there's the problem of the cute, giggling, 16-year-old girl, who
after her jump reports to mommy, " that big ugly man touched my boobies."
Behavior that might be overlooked as simply "flirting" with an adult student
now becomes felony child abuse. Add children to the close physical contact
necessary to make a tandem jump, and there is little doubt that this type of
situation will result.
But won't I pass up a lot of money by not taking kids up on tandem? In
the long run, the answer is NO. Face it. Most people make only one jump in
their lifetime. Whether they make it at 16 or 18 doesn't make you any more
money. Besides, unless daddy owns the DZ, very few children can afford to keep
jumping anyway. And one single lawsuit will cost you more than the profit
gained from a lifetime of taking up children on tandem jumps.
The risk is simply much greater than the reward. Fight the temptation,
and please make the right decision for all of us.
Blue, Clear, and Calm Skies along with safe dives from
Mike Turoff, Instructor Examiner
Livendive
why tandem manufacturers want an age limit, and as a TI, I don't consider
myself all that "uneducated" on the subject. My point was that liability is
not a safety issue, it's a legal issue. Given that, such a requirement has
no business being in the Basic *Safety* Requirements. Those are our (the
jumpers') standards for safe skydiving. As much as I detest the thought of
mandatory AADs, such a requirement would have more business in the BSRs than
does this one.
TK lists all the other people who get sued and states that this requirement
protects them as well. The fact is that the only people protected by this
requirement are the tandem equipment manufacturers. As a TI, I haven't
taken any underage students, nor has anyone else at my home DZ, and I don't
think the DZO would allow it even if we wanted to. We protect ourselves
with this self-imposed requirement. We could choose not to do so with or
without this legal-speak being in our BSRs. This requirement does not
protect a tandem instructor, a DZO, or a pilot. Their decision as to
whether they allow minors to jump is what protects (or doesn't protect)
them.
TK mentions how much money RWS has spent on legal defense since 1986 and how
much each lawsuit costs. I sympathize, but that doesn't make this a
*safety* issue, it's an economic issue.
TK mentions that waivers are invalid if signed by a minor, and that
parents/guardians can't waive the minor's right to sue. While I understand
this, it doesn't make this a safety issue, it's a legal issue.
TK talked about insurance costs and USPA's ability to absorb only one
lawsuit, which aren't safety issues, they're economic issues.
A great one...#15, TK mentioned that he doesn't trust DZ's to make the right
decisions for themselves, much less himself, apparently not realizing that
BSRs carry absolutely no legal weight. RWS would get very little to no
protection from the fact that a DZ was violating a BSR that has nothing to
do with safety. If a minor tandem student dies in an accident that would
have killed them regardless of age, RWS will be sued for the accident, not
the age of the student. With this BSR, DZ's still have every legal right to
make decisions TK doesn't like.
An even better one...#16 "BSRs are about SAFETY, both for the jumper and the
SPORT as a whole." How the heck does a legal limit make for SAFETY for the
jumper or the sport as a whole. There is zero SAFETY difference between
taking a 16 year old and taking an 18 year old. There might be economic and
legal differences, but those are not safety issues. Actually, TK concurred
with my point here by saying "BSRs are about SAFETY", and should be able to
understand that this age limit is NOT about safety, and thus has no business
in the BSRs.
TK mentioned that other types of student training don't attract the number
of lawsuits that tandem does, because in tandem they're relying on somebody
else while in AFF, S/L, and IAD, they're relying on their training. I
completely agree with this, however that does not make a legal issue become
a safety issue, nor does it make this age limit add in any kind of safety
factor.
TK said that PIA doesn't protect manufacturers, they're purely a trade
association. I'm not sure he realizes that the purpose of a trade
association is to protect and promote the interests of its members. Now
USPA on the other hand is not (supposed to be) a trade association, it's
supposed to be an association of jumpers. This requirement in the BSRs does
nothing for the jumpers, and should not have been imposed by the USPA. The
fact that it was speaks volumes about what USPA has become...a trade
association.
The bottom line is that while I agree we shouldn't be taking children on
tandems, I agree for legal reasons, not safety reasons. This requirement is
not safety related and has no business being in the BSRs. Additionally,
this requirement does not protect jumpers, it protects equipment
manufacturers, and as such would have been better somehow handled by PIA
than by USPA.
Blues,
Dave
(posted to rec.skydiving and forwarded to TK)
"MikeTJumps" <miket...@aol.com> wrote in message
news:20020719125750...@mb-md.aol.com...
> sued. and I don't feel anyone has a right to risk my business, or PD's or
MikeTJumps
section in the SIM that is something on the order of "Here are the legal
aspects of skydiving." We do have the BSRs which are as near to that as the
association can make it. In the USPA's by-laws, 16 is the minimum age for
skydivers. Thus, even though the BOD had the best of their intentions to grant
waivers for people such as people like Mike Mullins, Jessie Farrington, and
Marty Jones, it would require a change in the by-laws which also means that the
proposal must be on the BOD meeting's agenda before the meeting, not brought up
during it as a motion.
We tried to accomodate things but ran into the legal snafu that the situation
just mentioned created.
Now, how about getting what you propose on the agenda for the next meeting and
see where and whether or not you can make some headway.
D16842
Bill Booth took his minor child for tandems. Some pigs are more equal than
other pigs?
Tom B
Tom Buchanan
>tandems, I agree for legal reasons, not safety reasons. This requirement is
>not safety related and has no business being in the BSRs. Additionally,
>this requirement does not protect jumpers, it protects equipment
>manufacturers, and as such would have been better somehow handled by PIA
>than by USPA.
I think you missed the point. We need USPA in order to jump, just like we need
airports and dropzones, and equipment manufacturers. Without USPA, the FAA will
be all over our sport with insane regulation.
A single legal action without a valid waiver will overtax the resources of
USPA, and as T.K. mentioned, make it impossible for the organization to obtain
any level of insurance. Heck, a single settlement against USPA could exceed
insurance coverage and gobble up all the organizational resources. Without
USPA, our ability to skydive would be heavily curtailed, and it would hurt
every single one of us.
You are correct that a BSR will not prevent a tandem instructor someplace from
taking a minor, but a written and mandatory BSR will make it far easier and
cheaper for USPA to distance itself from the jump and defend the case in the
discovery phase.
You are also correct that an age limit isn't necessarily a "safety" issue. Yet
it is a survival issue, and should be a mandatory requirement under USPA. Maybe
we should rename the BSR's the Basic Survival Regulations. Or perhaps we should
make an effort to remove the age limit from the BSR's and move it to the USPA
constitution or membership agreement. While you may not like it as a BSR, it
clearly does belong as a mandatory requirement. I suspect, however, that you
would still abject to an age limit in any form.
Now, for just a moment, think about the world without a skydiving age
limit...at least one crazy money hungry operator would no doubt open a
concession aimed at children. Tandem would be promoted as a "carnival ride" to
kids, and if the dropzone had an accident, the owner would probably disappear
and run, but USPA and the manufacturers would be stuck holding the empty money
bag. I don't want some creep putting my organization or ability to skydive at
risk. Sure, it can happen anyway, but at least a clearly worded BSR provides a
healthy level of insulation.
The BSR is important to the survival of the organization, and that clearly
protects jumpers as much as manufacturers. Look, we need to start thinking
about our group interests above our own interests. WE, not ME.
Tom Buchanan
Instructor (AFF, SL, Tandem)
etc.
MikeTJumps
Was it in the US?
Rhonda Lea Kirk
>Bill Booth took his minor child for tandems. Some pigs are more equal than
>other pigs?
What gives you the idea that Bill did that?
rl
p&m
Livendive
paragraph of the student training section "As most children do not have the
maturity level necessary to make wise decisions while skydiving, the life
experience necessary to understand risks, nor the legal ability to waive
their right to sue, all dropzones and instructors should limit jumping to
those students who are 18 years of age or older."
This would provide the insulation you seek while not contaminating the BSRs
nor giving preferential treatment to one particular set of equipment
manufacturers. We may see a distinction between BSRs and recommendations,
but I consider it *extremely* unlikely a jury would, as both are really just
non-enforceable recommendations based on industry standards. I would say
that the group member pledge would be an even better place for this, but I'd
like to see the group membership program dismissed, which would remove the
holding spot for this "requirement."
Blues,
Dave
"Tom Buchanan" <tom...@aol.comJunkfree> wrote in message
news:20020719161227...@mb-fl.aol.com...
Rev Jim
"Livendive" wrote
#15, TK mentioned that he doesn't trust DZ's to make the right
> decisions for themselves, much less himself, apparently not realizing that
> BSRs carry absolutely no legal weight.
>
> Blues,
> Dave
I'm not sure what side of the fence I'm sitting on here, but that one
statment cought my eye.
Question for Jimbo. Will this effect operations in your state? I know you do
not jump there, but if I understood all that happened with Mr. Hawkes, the
BSRs are now treated as law in Nevada. Correct me if I am wrong. Does this
also mean that if someone were to find out that Mr. Hawkes put up underage
tandems (after the effective date of the new BSR's, of course), that we
would have recourse to strip his DZ of its group membership?
Anyone want to volunteer to slip a 17 year old past the defenses?
Rev Jim
Falco98
news:20020719155852...@mb-mu.aol.com...
Who says he can't? I think he'd feel relatively safe from liability
claims...
Rhonda Lea Kirk
> > Bill Booth took his minor child for tandems. Some pigs are more equal
> than
> > other pigs?
>
>
> Who says he can't? I think he'd feel relatively safe from liability
> claims...
Um...you aren't taking into account the mother of his child.
Joseph Walther
"Rev Jim" <isky...@charter.net> wrote in message
news:ujh3lrm...@corp.supernews.com...
Walther responds...
I have heard a great deal about Michael Hawkes. I have no first hand
knowledge of what he did or does. I do not know him and I make no judgments
about him. However, if his state has established a statute (weight of law)
that prohibits people below a certain age (18 ??) from jumping, simple
culpable negligence has been replaced with negligence per se. Simply put, it
means that if someone below this age jumps and is injured, there is no need
to prove that negligence caused the injury. Negligence is established simply
by permitting someone to violate the statute.
Speeding, for example, is negligence per se. There is no need for discussion
or trial. Along civil lines... If a roofing contractor gets the contract to
install the roofs in a housing development and there is an ordinance that
states that the shingles must be installed with a 6-nail pattern and the
roofer decides to use a 4-nail pattern. The roofer is negligent per se, end
of discussion.
>
> Anyone want to volunteer to slip a 17 year old past the defenses?
Walther responds...
I wouldn't advise this. The DZ need only take reasonable precautions to
prevent this. This does not have anything to do with relative rights. Now
you are into the criminal arena.
Regards and blues,
Walther
JimBo
>From: "Joseph Walther" jlwal...@comcast.net
>> > BSRs carry absolutely no legal weight.
> Question for Jimbo. Will this effect operations in your state? I know you
>do
>> not jump there, but if I understood all that happened with Mr. Hawkes, the
>> BSRs are now treated as law in Nevada.
The USPA BSRs are law in Nevada.
As for Michael Hawkes.....if anyone follows the rules.....he does.
I'm sure there are people that would want to argue this point about him...but
knowing him personally....I have always found that Hawkes is squeaky clean in
this respect.
If anyone would suspect an underage customer and want to see a birth
certificate....it would be him.
See Mikey....I dont "always" slam you .:o)
jim
D-10154
Humanitarian.
Man small... why fall ? Skies call... thats all.
Falco98
news:ce31ee47.02071...@posting.google.com...
> > claims...
>
> Um...you aren't taking into account the mother of his child.
In such a case, that would be for the tandem master and the child's mother
(and other family members) to worry about.. it's not as if bill did
something illegal though.
Rhonda Lea Kirk
>(and other family members) to worry about.. it's not as if bill did
>something illegal though.
It isn't _illegal_ to take a minor in the US, period, now that the FAA has
changed the rules. And it was never illegal in most other countries in the
world. It was and still is, however, a violation of the agreement between the
purchaser of the tandem gear and the tandem manufacturer.
The issue isn't compliance with law, it's liability, i.e., the difference
between criminal prosecution and a civil action. The concern is not about
people going to jail, but about losing everything one has worked for because of
an adverse monetary judgment.
If Bill were to take his daughter and something went wrong, then her mother has
a civil cause of action that could bankrupt the dropzone where the jump
occurred, the RWS, and other interested parties.
Although the gear manufacturers have legal recourse in the form of a breach of
contract lawsuit should a tandem master take a minor, they appear to be seeking
a further deterrent by asking USPA to amend the BSRs. If that happens, USPA
will then have the power to impose sanctions (in the form of pulling ratings)
against the tandem master in question.
(Purely as an aside, I asked Bill one day about taking the progeny and he told
me he didn't.)
rl
Posted and mailed
mo ghile meer
>It isn't _illegal_ to take a minor in the US, period, now that the FAA has
>changed the rules.
how old wer ewe when yew broke yer fumar city girl?? ;-*
"denn da ist keine Stelle, die dich nicht sieht
Du muBt dein Leben anern"
Rhonda Lea Kirk
Rhonda Lea (that would be me, Jimmy) has never broken her femur. You're
thinking of Rita, I think.
For that matter, I've never broken anything except every car I own, a couple of
hearts and a bone or two in my foot.
rl
posted and mailed
Tandmterry
>For that matter, I've never broken anything except every car I own, a couple
>of
>hearts and a bone or two in my foot.
>
What do you say WE take a Limo out to dinner?
Terry
Rhonda Lea Kirk
Nice try. :)
Darren G
This isnt a response to Mike T's post per se but more a general
comment on the comments on this thread. I am at a bit of a
disadvantage because I havent practised in insurance defence for a
long time and I havent done any research into this question since it
first popped up a few days ago.
First of, I agree with most of the comments that have been made about
this. In particular, having once been aggressively harangued by a
court registrar to settle a case where the plaintiff was a minor
(actually, her "next best friend" but lets not get technical) I agree
the "cuteness" factor can influence a court. However that factor
usually comes into play because there is insurance in place. Where the
defendant is uninsured, facing bankruptcy and jobs are at stake that
advantage is reduced markedly (the "Uninsured Relative Workshop"?).
There is also a big difference between little six year old Suzy
getting backed over by a truck while playing with her dolls and Peter
the 17 year old Punk who wants to do a jump to impress his mates. Ive
also been pressured to settle cases involving injured young women (one
was a 19 year old single mother)so these factors dont just apply to
minors. In fact I once defended a case where an old korea veteran fell
in a shop and was badly injured. That one was settled almost solely
because of the "sympathy" factor we were anticipating. My point here
is that minors are not the only ones that the courts will bend over
backwards to help.
The age of a jumper will never per se, be a factor in a negligence
action. The minor's ability to make decisions and cope with a jump are
all factors that may make an accident more likely and may affect a
negligence action but they may also be factors in cases involving
adults too. Age is irrelevant here. If the person doesnt understand
what theyre signing or has difficulty following instructions (ie
language issues)then those factors can affect the situation too.
Again, its going to depend on the actual circumstances and these
factors dont just apply to minors. If safety procedures arent properly
in place and all encompassing you can get blindsided from anywhere.
While recognising that the statements relating to the waiving of
minor's rights is roughly in accord with my recollection of the old
precedents, I still have my doubts about the inability to waive the
minor's rights. However, this is something I would have to check up
on. Off the top of my head I believe there are probabaly various
precednts from the common law world that would help here. The problem
in the USA may be that USA lawyers rarely use foreign cases while
Australian and other lawyers will often rely on cases from other
common law jurisdictions.
This brings me to the "foreign" question. Without checking the
operational regulations I am pretty sure that the minimum tandem age
in Australia is 14. I have no idea what the limits are in other
countries. If PD et al are so concerned about their liability are they
pursuing this issue overseas? As far as I know, theyre not. Can they
get wiped out by a case in a foreign jurisdiction? If so, then the
USPA position doesnt solve this problem for USA jumpers.
Personally, I am all for our sport being protected as much as
possible, wherever its carried on. I am not pushing a position here,
just trying to bring some points out for consideration. I do think
that an informed and measured consideration of the issues is best and
I am, frankly, not sure that theres not a little alarmism creeping in
here. I think the legal risks are being overemphasised a little bit.
The fact is that like skydiving theres always legal risks. Minimise
them but dont lock yourself in your houses to avoid them.
Oh, and for those of you who want to really panic about legal risks,
how about this? The High Court of Australia is curently hearing an
appeal from a USA online publication which defamed an Australian
businessman. So far the position is that Australian defamation laws
apply to the internet because the defamation was "published" online in
Australia. This makes the Bill of Rights freedoms inapplicable and
opens everyone on NGs to some pretty tough defamation laws if anyone
has a mind to pursue it. Because this is the first international case
on the issue the USA government is appearing in the case. How many of
you guys reading this are going to panic and stop posting? Id say not
many, because the risk of anyone taking action is probably pretty low.
Again, my point is minimise your risks but dont throw the baby out
with the bathwater.
Just my 2 cents worth.
Blue skies
Darren G
ps I dont agree with the statement that "kids shouldnt be jumping out
of planes" if "kids" means anyone under 18. Ive seen loads of "kids"
jumping out of planes perfectly safely. As a "kid" the Australian Army
entrusted me with some very dangerous (and sometimes expensive)
equipment and put its faith in me not to kill myself or anyone else
with it.
Darren G
Before I get jumped on by everyone, let me amend a statement in my
previous post: "Ive seen loads of "kids" jumping out of planes as
safely as its possible to be". :oP
Blues
Darren G
mo ghile meer
>Rhonda Lea (that would be me, Jimmy) >has never broken her femur. You're
>thinking of Rita, I think.
>
>For that matter, I've never broken >anything
oops sorry I had trouble seperating the 3 Jans also, must have something to do
with not understanding women. I guess ewe fly a canopy & flare better than
Rita...I'll note that so I kin tell yew apart. ;>
mo ghile meer
>Before I get jumped on by everyone, let me amend a statement in my
>previous post: "Ive seen loads of "kids" >jumping out of planes as
>safely as its possible to be". :oP
>Darren G
>
yeah I'll bet....its the flying under canopy
after 10 or 15 min of gear fear that causes them to relax & git "the sheeps got
its "head up its ass syndrome!" <bfg>
David Hayes
mainly the fact that tandem jumping is now 'legal' and not
'experimental'. Federal law does not dictate an age limit, therefore
we are not 'liable' for taking up kids on tandems, whether they can
sign a waiver or not.
Prior to that change, a large part of why RWS and other manufacturers
were being sued was because they effectively 'OWNED' the tandem
program. They applied for the exemption and took responsibility for
the program, training and deployment. They had to answer for it to
the FAA, hence they would obviously be named in any actions or
lawsuits involving the program.
Since July, 2001, they are now simply suppliers of the equipment, they
do not own the program. They are freed of much, if not most of the
responsibility of any given tandem skydive made anywhere in the world.
I have found (some) manufacturers to be pretty self-serving over the
years, interested in only protecting their butts when the poopy hits
the fan, and more than willing to hang tandemmasters and DZ's 'out to
dry' if they feel the need to. I expect this attitude also drives the
push behind there adamant stance towards 'underage' tandems.
If you are negligent in your duties and someone gets hurt, then you
will be likely sued in the USA, minor, child, adult, black, white,
jewish, or islamic, it really does not matter. Waiver or not, there
is little protection.
Insurance, the lack of it, the cost of it, the legal climate in the
USA and the existing tort laws are a ^%#$^!@$@!! plague in this
country, I agree. But the very risk of being sued is NOT a reason for
me to stop doing business unless I think that risk is excessive. And
I do not in the case of tandem jumps.
Any lawsuit can wipe out a lifetime of savings, so again that in
itself is NOT a reason to stop doing business.
I expect that in a couple years, taking kids on tandems will be as
common as roller coasters. Statisically, some kid may die doing a
tandem some day, and sure I do not want to be dealing with that
either. Roller coasters still exist today, and kids still die on
them.
Kids still fly airplanes despite 10 year-olds dying in horrible plane
crashes. I will continue to offer tandem jumps to the group of my
customers that I feel fit my market.
Faulty legislation that allows frivilous lawsuits is not a reason to
stop doing business either - which is what I feel the core problem is
in the USA. Until insurance costs and the court system brings this
country to a screaming halt, I expect that will not change either. It
may hurt, but it is not a reason to NOT doing business.
Contracts that allow you to sue for legal costs may be part of the
answer, whether they can be enforced or not, they are a deterrent to
such frivilous actions.
And the other main part - DO NOT BE NEGLIGENT IN YOUR DUTIES.
treat each customer like you would your own mother or brother or
sister, stop worrying about age limits and other such things that are
now legal.
TK
David Ferree
>>What do you say WE take a Limo out to dinner?
>
>Nice try. :)
Terry, the only way you're ever going to see Rhonda is if you track
her down and go find her yourself. I did that a couple of years ago
(and have the photos, naked and otherwise, to prove it), and it was,
to say the least, somewhat of a surprise to her. I wouldn't have
recognized her had I not heard her introduce herself to some people in
the cafe at the DZ where she was working (can't remember which one,
they're all alike in Florida). She's much better looking than her
photos I'd seen, which I thought were beautiful anyway. She's about
5' 6", 110 pounds, long brunette hair, really nice rack and perfect
little pear shaped butt. The best news is that she can't handle
drinking much at all, so for two or three beers you can have her naked
in her trailer in about five minutes.
Davy
Rhonda Lea Kirk
>her down and go find her yourself. I did that a couple of years ago
I am going to see him, Davy. I promised. And Karen promised to chaperone. Maybe
if you're really nice to me, I'll stop by and see you too.
>(and have the photos, naked and otherwise, to prove it), and it was,
Nice try.
>to say the least, somewhat of a surprise to her. I wouldn't have
He told me he was coming, but he's right...it was a surprise.
>recognized her had I not heard her introduce herself to some people in
>the cafe at the DZ where she was working (can't remember which one,
>they're all alike in Florida). She's much better looking than her
>photos I'd seen, which I thought were beautiful anyway. She's about
That gets you some points, even if it isn't true.
>5' 6", 110 pounds, long brunette hair, really nice rack and perfect
You need to add an inch and about 35 (this week)-40 (most of the time) pounds,
honey. And I was heavier then, I'm pretty sure. As for the rack, I own stock in
WonderBra.
>little pear shaped butt. The best news is that she can't handle
Y'know, I can't see behind me, but I'm pretty sure this is hallucinatory on
your part also.
>drinking much at all, so for two or three beers you can have her naked
>in her trailer in about five minutes.
I had one beer. I remember dishtinctly.
You are a piece of work, you know that? And I'm posting this, even though it
ought to be e-mail, because I'd like people to recognize me when they meet me
for the first time.
rl
David Hayes
David Hayes
MO SKYPIGS
>From: tkh...@tkhayes.com (David Hayes)
>
>A lot of things have changed in the legal field since July 2001,
>mainly the fact that tandem jumping is now 'legal' and not
>'experimental'. Federal law does not dictate an age limit, therefore
>we are not 'liable' for taking up kids on tandems, whether they can
>sign a waiver or not.
So you are saying that there is a federal law that dictates an age limit for
older jumpers? So this means that "all" persons whom visit your DZ do not need
to fill out, and or are not required to sign waivers?
>Since July, 2001, they are now simply suppliers of the equipment, they
>do not own the program. They are freed of much, if not most of the
>responsibility of any given tandem skydive made anywhere in the world.
So this means that the waivers that are "not necessary" at your DZ do not
include the section that releases responsibility of the manufactures of the
equipment that is used?
>I have found (some) manufacturers to be pretty self-serving over the
>years, interested in only protecting their butts when the poopy hits
>the fan, and more than willing to hang tandemmasters and DZ's 'out to
>dry
Let me see if I understand? These Rat Bastard manufactures build and sell
equipment that has "specific limits for its operation and use", and are so
lowly that they have a problem, if they are sued, when it is used "out side" of
its manufactured limitations, by persons whom purchase the equipment and have
no intent or concern for the use as long as it meets their "own" wants and
needs? It appears to me that both parties would be found very "self-serving"
>If you are negligent in your duties and someone gets hurt, then you
>will be likely sued in the USA, minor, child, adult, black, white,
>jewish, or islamic, it really does not matter. Waiver or not, there
>is little protection.
If you are "not" negligent in your duties and some one gets hurt, than you will
be likely sued in the USA, Minor, child, adult, black, white, jewish, or
islamic, it really does not matter. Waiver or not, there is "no" protection.
The question becomes how much of "your" time and resources are you willing to
spend to prove that you were "not" negligent, and of course you are willing to
cover the costs of all of the other entities that are named in the suit? These
self-serving businesses, organizations, owners, staff, etc?
> But the very risk of being sued is NOT a reason for
>me to stop doing business unless I think that risk is excessive. And
>I do not in the case of tandem jumps.
By all means run "your" business as you see fit, but make sure your decisions
and actions have consequences that only effect "your" DZ operations. Guess
what! in the legal climate that exists today you cannot do that!
>Any lawsuit can wipe out a lifetime of savings, so again that in
>itself is NOT a reason to stop doing business.
I agree, But exercising your right to run your business "within" the existing
rules, laws, and regulations, will minimize the chances of this lawsuit to
occur.
>I expect that in a couple years, taking kids on tandems will be as
>common as roller coasters. Statisically, some kid may die doing a
>tandem some day, and sure I do not want to be dealing with that
>either. Roller coasters still exist today, and kids still die on
>them.
If I recall on CNN this morning there is a group calling for a federal
investigation of roller coaster operations that to this date are believed to be
responsible for brain damage in over 50 persons. Yes, Roller Coasters exist
today! But tommorrow? after the Fed gets done? Who knows? I disagree that the
day will come in a couple of years when taking kids on Tandems is common place.
>Kids still fly airplanes despite 10 year-olds dying in horrible plane
>crashes.
Yes, and Cessna and all of the other manufactures get sued for these crashes!
Do you believe that the cost of a new aircraft is solely for the product? Ever
consider the fact that the bulk of the initial costs are to pay the companys
Insurance, and legal cost for these law suits when they occur? I believe that
if you offered Bill Booth and Ted Strong that you would be willing to pay
$100,000.00 each for the purchase of one of their Tandem rigs, that they would
become slightly less concerned about the age issue.
>treat each customer like you would your own mother or brother or
>sister, stop worrying about age limits and other such things that are
>now legal.
If you injure or kill your customers, and they are of the age to legally,
understand and by their signature execpt the risks that are associated with
jumping, than this is one thing, But if you kill a innocent person that is
under this recognized age, than your ass is hanging "all" of the way out, if
you can do this without involving any other persons or entities associated with
the sport, than knock yourself out! But if you know that you cannot offer these
services without a concern of your actions causing risk or loss to others
remotely involved, than in my opinion you are being negligent to the sport,
manufactures, jumpers, USPA, PIA, and any person whom holds this sport near and
dear to their heart.
Until now to myself, the statement or name calling by jumpers of "Money
Grubbing DZO's" had little substance, maybe I should reconsider my train of
thought.
Tom Dolphin, D6919
skydiving rec
Darren G
> >
> >From: tkh...@tkhayes.com (David Hayes)
> >
> >A lot of things have changed in the legal field since July 2001,
> >mainly the fact that tandem jumping is now 'legal' and not
> >'experimental'. Federal law does not dictate an age limit, therefore
> >we are not 'liable' for taking up kids on tandems, whether they can
> >sign a waiver or not.
>
> So you are saying that there is a federal law that dictates an age limit for
> older jumpers? So this means that "all" persons whom visit your DZ do not need
> to fill out, and or are not required to sign waivers?
No Tom, I dont think TK is saying that.
>
> >Since July, 2001, they are now simply suppliers of the equipment, they
> >do not own the program. They are freed of much, if not most of the
> >responsibility of any given tandem skydive made anywhere in the world.
>
> So this means that the waivers that are "not necessary" at your DZ do not
> include the section that releases responsibility of the manufactures of the
> equipment that is used?
Again, thats putting words in TK's mouth based on a misinterpretation
of what he said before.
>
[snip]
>
> >If you are negligent in your duties and someone gets hurt, then you
> >will be likely sued in the USA, minor, child, adult, black, white,
> >jewish, or islamic, it really does not matter. Waiver or not, there
> >is little protection.
>
> If you are "not" negligent in your duties and some one gets hurt, than you will
> be likely sued in the USA, Minor, child, adult, black, white, jewish, or
> islamic, it really does not matter. Waiver or not, there is "no" protection.
> The question becomes how much of "your" time and resources are you willing to
> spend to prove that you were "not" negligent, and of course you are willing to
> cover the costs of all of the other entities that are named in the suit? These
> self-serving businesses, organizations, owners, staff, etc?
Im not sure what the point is thats being made here. However, from a
manufacturer's point of view either the equipment is faulty or its
used negligently. In the first case, the age of the passenger is
unlikely to make any difference to the manufacturer's liability. In
the latter case the manufacturer faces the possibility of getting
dragged into the case and wasting money on legal costs until the
plaintiff's lawyer works out that the manufacturer is a hard target.
Again, the age of the passenger is not necessarily going to make mauch
difference here.
>
> > But the very risk of being sued is NOT a reason for
> >me to stop doing business unless I think that risk is excessive. And
> >I do not in the case of tandem jumps.
>
> By all means run "your" business as you see fit, but make sure your decisions
> and actions have consequences that only effect "your" DZ operations. Guess
> what! in the legal climate that exists today you cannot do that!
Actually, if, just for an example, a DZO had sufficient assets or
arrangements in place to back it up, a DZO should be able to protect a
manufacturer by indemnifying the manufacture for its legal costs where
the manufacturer gets roped into legal actions. Problem solved. The
problem for the manufacturers is that demanding an indemnity up front
might affect sales and tandem rigs are already out there. As a result
there seems to be a push on to get "retrospective" protection.
However, an indemnity arrangement that meant anything would give DZOs
more discretion.
>
> >Any lawsuit can wipe out a lifetime of savings, so again that in
> >itself is NOT a reason to stop doing business.
>
> I agree, But exercising your right to run your business "within" the existing
> rules, laws, and regulations, will minimize the chances of this lawsuit to
> occur.
Isnt the issue whether the 18 yr limit should be a "law"?
>
> [snip]I disagree that the
> day will come in a couple of years when taking kids on Tandems is common place.
Depends what you mean by "kids". Ive seen quite a few 15-17 years olds
do tandems. Personally, I think 5yr olds etc. is wrong but thats just
my opinion.
>
> >Kids still fly airplanes despite 10 year-olds dying in horrible plane
> >crashes.
>
> Yes, and Cessna and all of the other manufactures get sued for these crashes!
> Do you believe that the cost of a new aircraft is solely for the product? Ever
> consider the fact that the bulk of the initial costs are to pay the companys
> Insurance, and legal cost for these law suits when they occur? I believe that
> if you offered Bill Booth and Ted Strong that you would be willing to pay
> $100,000.00 each for the purchase of one of their Tandem rigs, that they would
> become slightly less concerned about the age issue.
>
> >treat each customer like you would your own mother or brother or
> >sister, stop worrying about age limits and other such things that are
> >now legal.
>
> If you injure or kill your customers, and they are of the age to legally,
> understand and by their signature execpt the risks that are associated with
> jumping, than this is one thing, But if you kill a innocent person that is
> under this recognized age, than your ass is hanging "all" of the way out, if
> you can do this without involving any other persons or entities associated with
> the sport, than knock yourself out! But if you know that you cannot offer these
> services without a concern of your actions causing risk or loss to others
> remotely involved, than in my opinion you are being negligent to the sport,
> manufactures, jumpers, USPA, PIA, and any person whom holds this sport near and
> dear to their heart.
>
See my previous comments about indemnities. There could be other
arrangements that would do the trick too but I havent given this post
more than 5 minutes thought.
Blue skies
Darren G