Skip to content
Question for a Legal Eagle Concerning Liability for OWS
Leonard_Jansen
Charter Member
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
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
“Moderation is a fatal thing. Nothing succeeds like excess.” - Oscar Wilde
Comments
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!!
We're all just carbon, water, starlight, oxygen and dreams
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.
loneswimmer.com
I thought the problem was not just the individual, but the individual's relatives and insurance companies suing other entities.
Thank God!
We're all just carbon, water, starlight, oxygen and dreams
http://www.nhliberty.org/bills/view/2010/SB362
<blockquote>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.</blockquote>
To see this waiver & release in context, see our application package for solo swims (PDF).
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).
I'm not very popular around here; but I've heard that I'm huge in Edinburgh!
...anything worth doing is worth overdoing.
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.
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
“Moderation is a fatal thing. Nothing succeeds like excess.” - Oscar Wilde
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.
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
“Moderation is a fatal thing. Nothing succeeds like excess.” - Oscar Wilde
"I never met a shark I didn't like"
Also swimming in rivers is perfectly legal here. Not sure what the rules are elsewhere. Perhaps grab an escort kayak and hit the Schuylkill.
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