I need a legal opinion on waivers.....


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Jayb
December 30, 2005, 02:22 PM
I'd like to hold an open house at out our local FOP range. (.22 cal rifles and handguns only) The FOP says their only concern is liability. My response was,"wouldn't a waiver take care of that?"

I was told that any waiver can be circumvented and/or prosecuted. Is that true?

If any of you are attorneys, I'd appreciate a response from someone in the know. You don't necesssarily have to post here, you can e-mail or PM me with what I need to know.

There is no current issue, I'm just trying to avoid one. :uhoh:

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JJpdxpinkpistols
December 30, 2005, 04:00 PM
I was told that any waiver can be circumvented and/or prosecuted. Is that true?

DISCLAIMER: I am not an attorney, nor do i play one on TV.

That said, I have dealt with legal stuff for years, and waivers are only as good as the paper they are printed on, once they make it to court.

If someone signs a waiver, that is a clear indicator that they were present, and agreed to the stipulations in that waiver (usually indemnification of the writer of that waiver).

Once the competent attorney gets hold of it, however, they can usually find holes big enough to drive a Mac truck through.

The problem is that waivers aren't constructed to deal with every possible situation.

I would say that consulting an attorney would be your best move. Find someone, pay the $$ to sit down and explain your liabilities, and perhaps look at your waiver and rewrite it to include portions of text that cover some of the more common situations.

Good Luck

<edited cuz I was a little fast at the trigg..., save button>

TexasRifleman
December 30, 2005, 04:03 PM
Waivers may or may not hold up in your state, but a waiver can NEVER insulate you from negligence.

All someone has to do is prove negligence and the waiver becomes worthless.

IANAL, but I used to give rides in WWII aircraft for "fuel donations" and had a waiver. An attorney friend of mine recommended that stop immediately.

His thought was that flying around in a 40+ year old airplane, giving rides to kids and old folks, was pretty much asking for a negligence claim if something happened. It's just too easy to convince a jury that you were negligent somewhere in some fashion.

So in your case it may be the same. Are you negligent in giving a gun to someone that has no training in their use? A jury might think so.....

rick_reno
December 30, 2005, 04:46 PM
The net might be a good place to get opinions - it's not a good place to get legal opinions.

Jayb
December 30, 2005, 05:44 PM
it's not a good place to get legal opinions.

you have a right to your opinion, but your response is not relevant to the question. Thanks

All someone has to do is prove negligence and the waiver becomes worthless.
if that's the case, then would it stand to reason that a negligence clause be inserted into the waiver would take care of that issue? I'm in no way arguing, I'm just asking 'cause I don't know.

MillCreek
December 30, 2005, 06:12 PM
Ah, waivers. Something that I deal with frequently in the context of my profession. The short answer to your question is that to get a definitive opinion on the efficacy of a waiver in Indiana, you will have to sit down with an attorney familiar with Indiana law.

The longer answer is that as a general rule, unless your state has statutory or case law to the contrary (rare, but does exist), a waiver is generally almost worthless from the standpoint of either preventing litigation, or acting as a defense in a negligence suit. As was pointed out earlier, if it can be proved that you were negligent in your actions, 'public policy' prevents you from being insulated from the consequences of your negligence by having the injured party sign a waiver before the negligent activity.

There are many exceptions to waivers, and again, in some rare cases, they can be upheld. As an example, here in Washington, the courts have upheld the waivers printed on the back of your ski lift ticket, but that took special legislation to carve out an exemption for the ski areas.

You would be better off asking the range owner if they carry liability insurance, and what could be done to have you covered under that policy. An example might be to rent the range from them for a day, but you would have to explore this with the range's insurance company.

Jayb
December 30, 2005, 06:17 PM
Millcreek,

Thanks for the information. You've given me a lead on some good questions to ask when I meet with an attorney.

TexasRifleman
December 30, 2005, 06:17 PM
if that's the case, then would it stand to reason that a negligence clause be inserted into the waiver would take care of that issue? I'm in no way arguing, I'm just asking 'cause I don't know.

Not negligence. You can't contractually protect against negligence. Negligence is usually a criminal act as well as civil. If you could, everything you bought, touched or used would have such a waiver, from toothpaste to automobiles.

If you could waive negligence, you wouldn't need product liability insurance, just make everyone sign a waiver before they purchase your product. Just doesn't work that way.

A waiver should protect against "accidents" but all it takes is a good lawyer to convince a jury that this accident was caused by negligence, thereby making it no longer an accident.

And, to make it worse, if someone dies or even seriously injured and negligence is found, you can go to prison if it's criminal negligence. And again, with guns involved the sharks would be out in full force trying to make that happen.

El Tejon
December 31, 2005, 09:08 AM
Negligence is not a criminal matter in Indiana (unless it rises to the level of recklessness).

Indiana is a very strong assumption of the risk state. "Dammit, boy, ya should of known." In addition, intelligent waiver is not an absolute shield to civil liability but excellent evidence as to both liability and damages.

Be aware there may be exclusion (of insurance coverage) issues as to your insurance. It is within your best interests to meet with an attorney who specializes in these matters. Tell him or her, what you want to do and bring the insurance policy with you.

Best wishes.

Dave Markowitz
December 31, 2005, 10:31 AM
Where a waiver can be useful is to assist proving that the signer was informed of certain risks and voluntarily assumed them. The precise effect of this will vary on a case-by-case basis and according to state law.

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