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Old 03-09-10, 03:24 PM   #1
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release from Liability waiver form

I recently built a dirt jump section in my back yard - the kids are already starting to flock. Is there a generic form that I can have parents sign that will keep me from being at fault in the case of an injury? Any advice will be appreciated.
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Old 03-09-10, 03:31 PM   #2
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The only legal advice I give on the internet is don't take legal advice from the internet! Talk to a lawyer to see what can be waived and what precautions you need to take.
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Old 03-09-10, 03:37 PM   #3
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The waiver form recommended by the League of American Bicyclists for their affiliated clubs can be seen here:
http://www.bikeleague.org/members/cl...ple_waiver.pdf

I'd also check with your home owner's insurance agent to see if you're adequately covered and/or if there's some additional coverage you might want to obtain. They may also have a preferred waiver form. The waiver can't prevent people from suing, but it can make it more difficult for them to win as long as there's not gross negligence on your part that results in an injury.
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Old 03-09-10, 03:57 PM   #4
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You may also have to consider things like ensuring you have proper fencing to keep people out who you don't want in. If I recall correctly, there is a concept calle 'attractive nuisance" that is often applied to pools, and if you don't have precautions to prevent trespassers, you could be liable.

I have friends whose approach is.....know the parents and don't let kids play whose parents are of the suing mentality. probably not good legal advice.....but is may be practical
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Old 03-09-10, 06:57 PM   #5
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When State Farm started cancelling homeowners policies in Florida, we went looking for new insurance. To get it, we had to take the diving board off our swimming pool, otherwise we could not get insurance. It's the same with trampolines. I'll bet it's the same with self-built dirt bike jumps.

Laws and insurance rules vary significantly between states. The only person who can give you an answer to your question about waivers you can rely on is a lawyer in your state. I also expect that your homeowners insurer will be very, very unhappy, waivers or not. You very well may be told that waivers will not protect you, and your insurance will not cover you.

The trouble with squirtdad's response is as follows: If a kid gets hurt, he's going to need care, and possibly expensive care. Whether the kid belongs to a neighbor who you know and is not likely to sue isn't the point. Their health insurance (or Medicaid, depending on their circumstances) is going to have to pay. Regardless of whether the parents want to sue, their health insurer may look to you or your homeowners insurance for subrogation. Health insurers get a lien against a 3d party who may be responsible for an injury, and regardless of whether the insured (the kid's parents) want to sue, if they want their insurance to pay for the injured kid's care, their insurer might go after you.

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Old 03-09-10, 07:22 PM   #6
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Keep in mind that regardless of what waivers are signed, anyone can still sue you for anything. Doesn't mean they'll win, but you never know, and it's a pain either way.
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Old 03-09-10, 08:38 PM   #7
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Keep in mind that regardless of what waivers are signed, anyone can still sue you for anything. Doesn't mean they'll win, but you never know, and it's a pain either way.
If people are suing because there are depressions on their trails...

I would say put up a fence asap... parents have a history of going bananas if their kid gets hurts doing something stupid and there is a twisted way it is your fault.
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Old 03-09-10, 09:50 PM   #8
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In addition to running it by a lawyer, check your states "Recreational Use" and "Assumption of Risk" laws. That may provide you some defense. But then again, an "Attractive Nuisance" law may be a big hammer against you.
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Old 03-10-10, 06:52 AM   #9
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why can't people take responsibility for their own actions? society sucks.
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Old 03-10-10, 10:40 AM   #10
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Thanks for all the responses - I have talked with a lawyer and the big issue is the "attactive nuisance" law. I'm still digging for info.
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Old 03-10-10, 02:37 PM   #11
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My advice as a personal injury lawyer is get rid of the jump. Some kid gets hurt and ends with a controller in his mouth to move his wheelchair and I guarantee you will be sued and liability waivers are fairly easy to get around.
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Old 03-10-10, 03:03 PM   #12
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My advice as a personal injury lawyer is get rid of the jump. Some kid gets hurt and ends with a controller in his mouth to move his wheelchair and I guarantee you will be sued and liability waivers are fairly easy to get around.
Probably good advice - but not the way I will go.
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Old 03-10-10, 03:22 PM   #13
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My advice as a personal injury lawyer is get rid of the jump. Some kid gets hurt and ends with a controller in his mouth to move his wheelchair and I guarantee you will be sued and liability waivers are fairly easy to get around.
I'll add to that. In some jurisdictions they are void as against public policy. Even parental indemnity clauses, which these liability waivers purport to be, are also, likewise sometimes unenforceable.

The OP may in addition find that his HO insurance may in the event of a claim, deny not only liability coverage, but defense of claim costs too.

IAAL, but not your lawyer, and the above is not legal advise.

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Old 03-10-10, 03:39 PM   #14
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you built it - you're responsible for it. if I were a kids parent I wouldn't sign it.
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Old 03-10-10, 03:56 PM   #15
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you built it - you're responsible for it. if I were a kids parent I wouldn't sign it.
That would be the idea - in my legally inexperienced mind the whole idea of a waiver is that the parents realized the risks, and only sign it if they thought it was OK for their kids to ride it - I don't what any kid riding it if the parent did not think it was a good idea.
I race DH, and so does my 15 yo son. I have to sign a waiver every time him or I race - basically stating that I understand the risks. When I go DH biking or snowboarding - I don't need to sign a waiver. Even at privately owned ski resorts - even for my kids. Every year in this area a few people die skiing or snowboarding - I don't hear of any law suits. All a bit confusing to me.

I did talk with an attorney - I will put up a couple signs - and a barrier to make it unridable when we are not home. Also, I will call my HO insurance and ask advice.
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Old 03-10-10, 03:59 PM   #16
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most waivers are tolerable - but I've heard of some that state the manufacturer is not liable even in the event of defective workmanship. or int he event where an employee supervising plays a role - some waivers say the company is not responsible even if an employee is not properly trained. just too ludicrous
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Old 03-10-10, 04:05 PM   #17
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Oh - and the attorney suggested no waiver.
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Old 03-10-10, 04:09 PM   #18
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One piece of advice. DO NOT accept any money. In some other situations, for instance storing a friend's bike, if yuo do it for free you assume minimal obligations. But if you charge, even just one dollar, the rules change if something happens. If you do go with legal documents having it explicit that you are not accepting funds might help if things go bad.
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Old 03-10-10, 05:50 PM   #19
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T When I go DH biking or snowboarding - I don't need to sign a waiver. Even at privately owned ski resorts - even for my kids. Every year in this area a few people die skiing or snowboarding - I don't hear of any law suits. All a bit confusing to me.
.
Check the fine print on the back of the ticket......you will find that it is covered with legalese...... and the last time I bothered to read such, it was a waiver basically that by buying the ticket and using the facility you are waiving liability.
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Old 03-10-10, 05:59 PM   #20
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When State Farm started cancelling homeowners policies in Florida, we went looking for new insurance. To get it, we had to take the diving board off our swimming pool, otherwise we could not get insurance. It's the same with trampolines. I'll bet it's the same with self-built dirt bike jumps.

Laws and insurance rules vary significantly between states. The only person who can give you an answer to your question about waivers you can rely on is a lawyer in your state. I also expect that your homeowners insurer will be very, very unhappy, waivers or not. You very well may be told that waivers will not protect you, and your insurance will not cover you.

The trouble with squirtdad's response is as follows: If a kid gets hurt, he's going to need care, and possibly expensive care. Whether the kid belongs to a neighbor who you know and is not likely to sue isn't the point. Their health insurance (or Medicaid, depending on their circumstances) is going to have to pay. Regardless of whether the parents want to sue, their health insurer may look to you or your homeowners insurance for subrogation. Health insurers get a lien against a 3d party who may be responsible for an injury, and regardless of whether the insured (the kid's parents) want to sue, if they want their insurance to pay for the injured kid's care, their insurer might go after you.
Kerlenbach is right on with his point of view (I think he is an attorney).

Waver, Schmaver... it will not make one bit of difference. If someone gets hurt and they decide to sue you will still have to hire a lawyer to defend yourself. And the waiver will make little difference.
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Old 03-10-10, 06:01 PM   #21
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the way our local ski area acts is very risk averse. When my kids have fallen during a supervised skiing session, they have been transported off the mountain and gone to the emergency room. I'm just glad the ski areas out in Utah never saw any of my falls, I had some real bell-ringers.

To add on to the insurance aspect of the question. There has been a lot of discussion in the custom framebuilding community about insurance. A lot of hobby builders think that they are only building for friends and waivers should suffice. However, friend or not, if one of our customers has a serious injury and needs significant care, there is some responsibility for us to have insurance to help provide that. Which makes framebuilding a really expensive hobby.

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Old 03-10-10, 06:06 PM   #22
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My guess (not a lawyer) is it would be very different if you hadn't created this jump. If some neighbors kid got hurt on a hill in your yard it would be covered by your HO insurance. But now you are responsible for this 'hazard'. Yes, it will be the kid's parent's insurance company that sues you big time- they have the big lawyers.
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Old 03-10-10, 06:13 PM   #23
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I'm curious how people that have half-pipes in their backyard handle this issue. Maybe they just ignore it.
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Old 03-10-10, 10:32 PM   #24
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I'm curious how people that have half-pipes in their backyard handle this issue. Maybe they just ignore it.
You're probably right. And probably nothing bad will happen. But sometimes it does, and when it does it gets very bad.

lary lama asks, "why can't people be responsible for themselves?" I wish it were that simple.
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Old 03-15-10, 02:29 PM   #25
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My advice as a personal injury lawyer is get rid of the jump. Some kid gets hurt and ends with a controller in his mouth to move his wheelchair and I guarantee you will be sued and liability waivers are fairly easy to get around.
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I'll add to that. In some jurisdictions they are void as against public policy. Even parental indemnity clauses, which these liability waivers purport to be, are also, likewise sometimes unenforceable.

The OP may in addition find that his HO insurance may in the event of a claim, deny not only liability coverage, but defense of claim costs too.

IAAL, but not your lawyer, and the above is not legal advise.

zac
I have to mirror these attorney's thoughts. The chance of something happening is slim, but the liability is astronomical. The calculus is not in your favor. I will also mirror zac's disclaimer that I am an attorney, but not your attorney, nor licensed in your state, and the above is not legal advice.
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