Question for a Legal Eagle Concerning Liability for OWS

Leonard_Jansen

Is anyone on this forum a lawyer? If so, could you weigh in on the following:

Is it possible to draw up a contract that is absolutely incontestable and absolves everyone of responsibilty for me (or anyone else) if I drown, get hit by a boat, eaten by sharks (OK, there are no sharks in PA, so maybe large carp.), etc, etc, etc while training in the open water on public property?

The inability to use public lakes for training by responsible adults is absurd. There is ONE frickin' public lake in the entire state of Pennsylvania where you can swim as you please without getting fined or arrested. ONE. I am seriously thinking of trying to approach my state congressman/senator and try to get some sort of change in the laws that would allow more open water access. However, I'd like to have some idea of what legal mechanisms could be put in place to prevent liability issues, since I am certain that will be a huge sticking point.

Any other ideas appreciated, especially if you know of any other state/area in the US that allows more OW access and how they have it set up.

It's time to take back OUR public, paid-for-by-taxes lakes.

Thanks,
LBJ

IronMike

At the state park I swim at here in northern VA, you can swim in the lake as long as you're not having an "event." If you are organizing an event, then you have to fill out forms and pay. I don't think it is much. My masters team had an "event" a couple weekends ago and the charge per swimmer to cover the swim training and snacks and water was only $6.

Isn't Ken (?) from Arizona on this forum a lawyer?

I'm with you. We need to approach local government to lobby for this sort of thing.

I just learned from my level 1 and 2 coaches clinic that as long as all swimmers are USMS members and at least one has "line of sight" of all personnel, then USMS insurance covers your activity. One of the instructors mentioned that his club buys the lifeguards USMS memberships and has even bought kayak volunteers USMS memberships so that the insurance requirements are met!!

loneswimmer

Bloody hell. I just get in the sea and swim wherever and whenever I please. I already considered myself lucky to be a sea swimmer, but hadn't realised how hard it could be find suitable open water not patrolled by those who believe we can't be trusted with our own safety. The freedom of the sea is constrained only by my own ability and experience and judgement. The very thing I wrote on my blog was Open water swimming is an individual expression of freedom.

This adds nothing of value except an expression of sad solidarity.

At least one of the forum members is a US attorney who visits the forum every few weeks to catch up. Possibly he'll add his excellent views when he next visits.

oxo

Sorry to hear about PA. Does that apply to PA lakes within federal lands? FWIW, similar pains are being expressed at swimclub.co.uk

I thought the problem was not just the individual, but the individual's relatives and insurance companies suing other entities.

ChickenOSea

It's crazy that we have to watch out for police if we don't swim in designated areas in designated times...

IronMike

At Mason Neck state park here in NoVA, there are no designated swim areas. Which is probably a blessing because then they'd have to patrol them. I've been swimming there weekends for about 3 weeks, and have mentioned to all the rangers there, whether at the car entry check-point, or the visitor's center, that I'd be swimming in the lake. None of them cared. And everytime I get out of the water, there are a couple rangers on the beach (I think renting PFDs to kayakers) and none of them cared that I'd been swimming. The most I've gotten was "How was the water?" and "How far did you swim today?"
Thank God!

oxo

The only altercation I've encountered occurred while swimming in Crater Lake. It was the ignorance of the concessionaire in this case, licensed by National Parks Service to operate the boat tours. The infuriated 60yo motored out to me with an empty boat and blocked my way, claiming I needed a permit to swim. No truth in that at all. But now that I think about it, I was also blocked from swimming in Loch Katrine in 2011. http://wildswim.com/loch-katrine-the-trossachs but that just lead to a beautiful swim in Loch Achray, and on another occasion was advised I needed to get explicit permission from the National Mountain Centre to swim Llynnau Mymbyr, which I did.

oxo

New Hampshire, swimmers right-of-way legislation that was passed in 2010

http://www.nhliberty.org/bills/view/2010/SB362

evmo

Leonard_Jansen wrote:

Is it possible to draw up a contract that is absolutely incontestable and absolves everyone of responsibility for me (or anyone else) if I drown, get hit by a boat, eaten by sharks (OK, there are no sharks in PA, so maybe large carp.), etc, etc, etc while training in the open water on public property?

Over the winter the SBCSA consulted with an attorney to create a new waiver & release of liability for channel swims under our sanction. Possibly it could be adapted to serve the purpose you describe.

In consideration of being allowed to participate in any way (including without limitation by observing, swimming, kayaking, paddleboarding, or otherwise supporting) in a swimming event (the “Swim”) in the ocean waters in the vicinity of the Channel Islands of Southern California or other designated waters (collectively, the “Channel”) observed and recorded by the Santa Barbara Channel Swimming Association, a California nonprofit corporation (“SBCSA”) for the purpose of sanction, verification or authentication by SBCSA, or events and activities related to the Swim (including without limitation entering or exiting any body of water from or near any ladder, vessel, dock, land formation or otherwise, with or without assistance), the undersigned, for himself or herself, and his or her personal representatives, assigns, heirs, distributees, guardians, executors, administrators and next of kin, and each of them:

1. Hereby releases, waives, discharges and relinquishes any action or cause of action and covenants not to sue SBCSA, its directors, officers, members, agents (including without limitation persons assigned to observe or assist the Swim), servants and employees (the “Releasees”) from all liability to the undersigned for any and all loss or damage, and any claim or demand therefor on account of injury or damage to person or property or resulting in death, whether caused by the negligence of any of the Releasees or otherwise.

2. Hereby agrees to indemnify and hold harmless the Releasees and each of them from any loss, liability, damage or cost, including without limitation court costs and attorney’s fees, any Releasee may incur resulting from claims, demands and causes of action of every kind, known or unknown, directly or indirectly arising from any action or proceeding brought by or prosecuted for the benefit of the undersigned and related in any way to the Swim, whether caused by the negligence of any of the Releasees or otherwise.

3. Hereby assumes full responsibility for any risk of bodily injury, death or property damage arising out of or related in any way to the Swim, whether caused by the negligence of any of the Releasees or otherwise.

4. Hereby acknowledges that the Swim is inherently dangerous and involves the risk of serious injury, permanent disability, death and property damage. The undersigned assumes full responsibility for and risk of bodily injury, permanent disability, death and property damage, whether due to the negligence of any of the Releasees or otherwise, including negligent rescue operations or procedures of any of the Releasees.

5. Hereby acknowledges the extreme difficulty involved in the Swim, including without limitation the risk of exhaustion or hypothermia, even for a well-conditioned athlete. The undersigned acknowledges that participation in the Swim should not be undertaken unless the undersigned is in excellent health and is fully trained and conditioned for the strenuous task of the Swim in the open ocean at water temperatures significantly below normal human body temperature. The undersigned acknowledges that SBCSA has no duty before, during or after the Swim to assess or evaluate the training, physical fitness, then-current mental or physical capacity or condition of the undersigned or to offer or provide any medical assistance or other aid to the undersigned. The undersigned assumes full responsibility for and risk of bodily injury, death or property damage (including without limitation as associated with the adequacy of the physical fitness, training and conditioning of the undersigned as well as any medical condition of the undersigned, acute or otherwise), whether due to the negligence of any of the Releasees or otherwise, including negligent rescue operations or procedures of any of the Releasees.

6. Hereby acknowledges that conditions in the area where the Swim will take place may at any time of the year include gale force winds; strong and rapidly building storms; dense fog; great and swift seas; strong currents; pounding surf; treacherous rocks and reefs; kelp; and potentially dangerous marine animals (including without limitation jellyfish, stingrays, sharks, sea lions, seals, whales, sea urchins, swordfish, dolphins, sea otters, barracuda, eels, and scorpion fish). The undersigned acknowledges that portions of the Channel are major maritime shipping lanes, subject to heavy use day and night by commercial vessels of great speed, tonnage and size (including without limitation speed boats, container ships and oil tankers). The undersigned assumes full responsibility for and risk of bodily injury, death or property damage (including without limitation as associated with the conditions in the area where the Swim will take place, such as the conditions mentioned in this paragraph), whether due to the negligence of any of the Releasees or otherwise.

7. ______ [Acknowledge with initials - Swimmer only] Hereby acknowledges that the undersigned has previously hired a vessel to escort or assist in the Swim. The undersigned has invited one or more SBCSA observers to be guests aboard such vessel during the Swim and hereby acknowledges that neither such observers nor SBCSA (and its invitees if any) shall have any responsibility for the actions of such vessel, its captain and crew or any other invitee of the undersigned, including without limitation actions associated with navigating or piloting the vessel and feeding or providing medical assistance to the undersigned. The undersigned assumes full responsibility for and risk of bodily injury (including without limitation dismemberment by boat propeller), death or property damage associated with the hiring of such vessel and the actions of its captain and crew (including without limitation the actions mentioned in this paragraph), whether due to the negligence of any of the Releasees or otherwise.

8. Hereby acknowledges and agrees that: (i) any Swim is the sole responsibility of the undersigned; (ii) the undersigned is completely responsible for taking or implementing any and all precautions and measures appropriate or advisable for any such undertaking, including without limitation maintaining adequate insurance related to such undertaking; (iii) there is no role or responsibility whatsoever for SBCSA or any of the Releasees in this regard; (iv) the undersigned is participating in any Swim upon the sole initiative of the undersigned and is not responding to any advertisement or promotional activities of SBCSA or acknowledgments or awards that have been offered or may be provided by SBCSA in connection with any Swim; and (v) the undersigned is absolutely free to undertake a Swim without any involvement of SBCSA whatsoever, and has elected to involve SBCSA solely to determine whether any Swim meets the requirements, if successful, for inclusion in the official records of SBCSA. SBCSA disclaims any and all duties or obligations of any kind, including without limitation any duty or obligation to maintain any insurance against risk of injury to the undersigned, and the undersigned expressly acknowledges the absence of any such duties or obligations, hereby affirmatively waiving any such duties or obligations as well as any inference of the same.

9. Hereby acknowledges and agrees that: (i) the undersigned has had adequate time to review this Waiver and Release of Liability; (ii) the undersigned completely understands this Waiver and Release of Liability and the concepts contained herein; (iii) the undersigned has had an opportunity to have counsel review this Waiver and Release of Liability; (iv) SBCSA has been available to answer any questions from the undersigned related to this Waiver and Release of Liability and the Swim; and (v) all such questions have been answered to the satisfaction of the undersigned. 10. Hereby agrees that this Waiver and Release of Liability is intended to be as broad and inclusive as is permitted by the laws of the State of California and that if any portion hereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect.

I HAVE READ THIS WAIVER AND RELEASE OF LIABILITY, FULLY UNDERSTAND ITS TERMS, UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING IT, AND HAVE SIGNED IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT.

To see this waiver & release in context, see our application package for solo swims (PDF).

Walter

LBJ:

A genuine assumption of risk, sometimes evidenced by a so-called waiver like the one SBCSA uses, is enforceable against adult individuals engaged in inherently dangerous activities in lots of jurisdictions, probably including Pennsylvania. Of course that wouldn’t make legal what is illegal; it would only be part of an argument that the risk is lower than perceived.

But are you sure that perceived risk of expensive litigation is the reason for the ban anyway? Perhaps it’s perceived risk of contamination or concern for actual safety of the swimmers (rather than merely the potential expense of injury or death). No need to answer - it might as well be a rhetorical question because, whatever the reason for the policy, I’m virtually certain that the problem faced by Pennsylvania's would-be lake swimmers is not legal, but political.

In other words, you need a lobby, not a lawyer. I hope you get one because not being able to swim in a lake in Pennsylvania in these United States is straight bullshit (in my professional opinion).

david_barra

IronMike wrote:

Isn't Ken (?) from Arizona on this forum a lawyer?

A defence attorney.... save the favor for when you end up in a holding cell wearing nothing but a stars and stripes speedo.

bobswims

evmo wrote:

2. Hereby agrees to indemnify and hold harmless the Releasees and each of them from any loss, liability, damage or cost, including without limitation court costs and attorney’s fees, any Releasee may incur resulting from claims, demands and causes of action of every kind, known or unknown, directly or indirectly arising from any action or proceeding brought by or prosecuted for the benefit of the undersigned and related in any way to the Swim, whether caused by the negligence of any of the Releasees or otherwise.

This is a very important provision that provides essential protection for SBCSA. I required it in every agreement where my client sought protection. It also holds a potential financial risk for the person signing it. Does everyone have personal liability policy? Probably not.

bobswims

In response to the original question, I would need to know more. Are you talking only about public lakes? If so what is the policy behind the laws prohibiting their use? Does it apply only to swimming? Is it only a liability question, or is there some other public health reason?

LSjswims

As an attorney, I would have to agree with evmo, bob and walter. Walter's comment is the most relevant, though, I think. Any competent lawyer can draft a solid waiver and release, but getting the powers that be to accept / trust it? That takes building relationships and all that jazz. Maybe talk to the CIBBOWs folks? They swim in the ocean all the time.

courtneypaulk

I'm a lawyer as well...and I think the main issue is getting the appropriate public jurisdiction who owns the lake the agree to any waiver of their liability. SBCSA is a private body - so I think the comparison is a bit apples/oranges. Also, are you sure it isn't an access issue? Health Department Regulation? What is the reason given for why you would be fined?

Leonard_Jansen

Thanks for everyone's input.
To respond to several questions/comments:
@courtneypaulk - As to why you would be fined: Because it's the rules - simple as that. I honestly don't think that there is much more behind it. I friend of mine was fined $300 for swimming 3 feet upside the ropes of an area. She was doing so because the roped of area was wall-to-wall people. The park ranger told her she was "endangering herself."
@evmo - I will take your document to my sister-in-law (a lawyer in PA) and see what she thinks in terms of PA law. Thanks.
To those saying it's a lobbying issue - I agree. The reason I asked the question in the first place was to try to bring something forward that might reassure our congresscritters that if someone drowned, PA wouldn't be sold in a sheriff's sale to pay the bill.
@oxo - Apparently, all federal lakes are governed by something called "Title 36." In looking this up, it is applied differently by different agencies. Interestingly, the Army Corps of Engineers states that it IS legal to swim in their lakes at you own risk EXCEPT if the head of the ACE district decides differently. The one lake in PA where you can swim (Blue Marsh Lake) is ACE governed by the Philadelphia district. Raystown Lake (highly desired) is also ACE, but in the Baltimore district and is no swimming allowed. It makes me wonder if lobbying the various ACE districts might not be a better firat step and then tackle the state parks, etc. I have not yet found a basis for the state laws, but am looking.

-LBJ

oxo

fwiw ...

Via wikipedia, here is list of 140 PA lakes ...

ntl4.com/PA_Lakes.wikipedia.2013-06-26.txt

Via PFBC, here is a list of about 120 lakes annotated with the governing body (DCNR, ACE, PFBC, NonPFBC, FirstEnergy) ...

ntl4.com/PA_Lakes.PFBC.2013-06-26.txt

... the latter being scraped from the href's in PFBC's link list. The giant reservoir in PA/WV is the one anomaly in the PFBC list in that Cheat Lake is managed by First Energy.

First Energy swim rules.

PFBC swim rules.

(old?) DCNR swim rules.

In my mind, at least, Title 17 Section 11.217 pertains only to DCNR lakes that have a 'designated swim area'. If a DCNR lake does not have a designated swim area, then 11.217 does not apply. But then, no one has ever called me a lawyer.

hope this helps.

Leonard_Jansen

@oxo - Nice! Thanks.

Perhaps I should start a religion based on long open water swims and then go after them for religious discrimination when they arrest me.

-LBJ

evmo

Equal protection under the law, baby - on land AND in water!

oxo

Given Jonathan Haidt's book, it already exists. All that's needed is the paper work.

Birmingham

Living/swimming in Vermont, I just go swimming. As far as I know, if there is access the water is open for any use. The only restrictions I know of are fish/game laws and the occasional motor boat ban. The State Police patrol boat regularly motors past me while I'm swimming, often beyond the No Wake Buoy. They have never said a word to me. In fact, I approached them one day on shore to complain about their lack of enforcement of the speed limit inside the buoy and they brushed me off. By now they know who I am, but have never said a word about where I swim, which is definitely outside of a well marked swimming area. They are just counting PFD's, writing $50 tickets to unprepared tourists. It looks like a pretty slack duty.

Sharko

Let's all agree then that swimming is indeed a religion and our church is the open water....I really think that it qualifies on so many levels....Sir Sharko will be your Tomales Bay pastor and baptize each of you who join us for the TBWSSA (Tomales Bay White Shark Swimmers Association) annual swim with the White Tippers on October 5th at Heart's desire beach!!!! Jump is at 9:30....

stevenc616

Just a thought on the PFBC rules...why not pull a swim buddy with a diver down flag attached? Then boats have to give you a 100' berth. You can assert that you are not swimming but just a diver looking for a better location.

sarah_q

I am in SW PA and dealt with this same issue. I went through the long process of getting a special permit through the park ranger office to do a long swim in a lake. It was a huge hassle. I did it for one day specifically but I bet you can get a permit that covers several months. Some park rangers are nicer than others so if you get shot down try again.

Also swimming in rivers is perfectly legal here. Not sure what the rules are elsewhere. Perhaps grab an escort kayak and hit the Schuylkill.

Fil

I'll fess up to being a lawyer (at least this week, maybe next) There are excellent releases, indemnifications, and covenants not to sue out there (Evmo's is the most exhaustive I've ever seen.) They won't prevent lawsuits trying to get around some aspect of the release and waiver. Then again, if it's a governmental entity expressing concern about liability, at least in Vermont, the state enjoys significant protection from suit under the doctrine of sovereign immunity. Vermont has a statute that has long insulated ski areas from most actions (again, not all). It could be used as a model, if needed.

I agree that lobbying is the answer. Media attention to the plight of open water swimmers in certain states can be very effective. Holding permitted events to demonstrate the numbers and the need can educate the public (and legislators) about the growth of this sport and the need to provide access. Swim ins to challenge these laws might also create public awareness of the ridiculousness of these restrictions and lead to New Hampshire like legislation.

In Vermont, as long as you are not using a fish and game access, swimming in our lakes is generally open to the public. There is a public trust doctrine that says something to the effect that these public waters are held in a sacred trust for use by the public. For organized aquatic competitions, we need permits, but so far, they have been easy enough to get. Lake Memphremagog, being an international body of water, does not require any state permits for us to hold Kingdom Swim.

Another BIG issue, I think, may be how to accommodate open water swimming in areas with large amounts of boat traffic. The lakes we swim in northern Vermont generally have light to no boat traffic, which is one of the reasons they're ideal for open water swimming (my plug). But where you have a lot of boats, how to balance shared use with safety, becomes a real issue. There are lots of ways to address that. But ....

I'm happy to work with anyone seeking to open access to lakes by open water swimmers.

Share the Lake.

Fil