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Who is responsible? - Page 2

post #31 of 38
Bonni, Judd Nelson IS harsh. And you can watch all the Sex In The City you wish... Even though we all know John Hughs films are a much greater use of one's time.

So decisions like this are "no Biggie"? I digress. Every time one of these cases (the really frivolous ones. Don't get me wrong, If a wrong-doing has ocurred, someone has to take responsibility in court.) isn't thrown out at service level, it costs the ski area and its insurance company money. So guess what? The areas crack down on some really ridiculous levels. ie. Prices rise even further, runs are closed, signs clutter the countryside, and people's jobs are put on the line every time some dough-head runs into a lift tower.

Responsibility? No one takes responsibility any more! Not when you can make a little cake by NOT taking responsibility. It's disgusting. At what point do ski areas finally say "Guess what folks? Due to the sue-happy nature of our clientele, we have decided to close our doors and turn this place into a elk refuge. KEEP OUT. (trespassers will be sternly warned three times before being issued a written reprimand for tresspassing, at which juncture the trespasser(s) may file an appeal to the county court..blah, blah blah)"

Anyway, I think this has become a HUGE problem. So please don't try to tell us that these lawsuits or pending lawsuits are "no biggie". I'm in no panic, mind you, it's just that I am the sort of person who belives in taking personal responsibility for any and all of my actions. It's frustrating to see our business being handled so roughly by consumers and their lawyers. By the way, Gonzo, Very good points in your earlier post about this not being about ALL lawyers.

Do they honestly mean to tell me that the Area assumes all responsibility for everyone who CHOOSES to participate in a sport where anything can happen? That's pathetic. That's Chicken-sh##. That's irresponsible. Until the consumer's attitude changes in that respect (I know it won't) we can expect to lose a ton of priveleges on the slopes in the near future. Once that happens, who do we blame then? Let me guess... "the ski area just doesn't want our business. Buncha jerks."

Yeah right.

End of rant.
: Spag

[ August 04, 2002, 12:13 PM: Message edited by: Notorious Spag ]
post #32 of 38
Hah, personal responsibility is really easy to talk about until you are given a chance to not have to pay for a lifetime of medical bills. Not that I would wish anything like this on any of you, but think about the choice of:
1. Making your life a whole lot better (or even bearable) by suing the ski resort.
2. Making every other skiers' RECREATIONAL pursuit
just a LITTLE bit more enjoyable/affordable by not suing.

Guess what. I put most of the blame on the lawyers who have changed the legal culture for their own benefit. If all you "good" lawyers REALLY cared, none of these sharks would have a license. But you just keep on saying "well, I'm not in litigation...", while proudly belonging to an organization that fights for the "evil" lawyers to be able to do the things that you say you detest. And don't forget that many of your esteemed colleagues that defend these companies depend on frivolous lawsuits for their jobs.
Lawyers making more $$ for each other. You gotta love it!
Don't think that you can take the moral high road here.
post #33 of 38
Unless I am missing something, what the Court decided was that neither the parents nor the minor could validly waive the right of the minor to sue for damages, at all and in particular if he suffered injury resulting from negligence on the part of a third party- in this case say the ski area.

The comment from the attorney suggested that that was always the law in Colorado anyway- for your information it is also the law in the U.K.(where I live) in that no term of a contract can exclude or restrict liability ( and thus the right to sue) for damages for injury or death resulting from negligence.

This does nothing to increase the liability of ski areas for damages for injury or death- if they were not negligent then they are not liable, end of story. Thus I am not sure where the question- who is responsible?- comes from. If nobody was negligent then it was an accident and nobody was responsible. It was one of the risks of skiing and would be covered by the Skier Act referred to. If somebody was negligent and as a result this child was blinded then on what basis can it be argued that he should not be entitled to compensation, so long as the negligence is proved. All skiers assume certain risks going skiing, the case here presumably is that the injury was caused by a risk beyond that ie negligence.If not then the case seems destined to fail at trial,becuase of no negligence and the Act referred to.

What it might do is mean that ski areas cannot get cases dismissed pre trial so they may be involved in more legal costs etc, consequently more insurance costs and so on. Presumably that is a situation that affects any number of other businesses in different areas of life/leisure

The answer to this -and the issue about what is known as "long arm" jurisdiction ie suing in Texas in respect of an injury in New Mexico- is get the law changed if you dont like it and if you can get enough support. If you have a legal system which promotes and encourages the type of claims referred to in previous posts then you likely can only change that by the Legislature making things more difficult for claimants. But you have to assess whether making things "more difficult"for claimants is a good thing, since I doubt that all those who might suffer under whatever rules were brought in would be undeserving

Dont blame the lawyers- their job is to act for clients and operate in the law as it is, not the way they think (or anyone else thinks) it ought to be. If you dont like the result try to change it and if you cant, well thats one of the "problems" of a democracy.

By the way the four year point about minors and getting out of contracts works over here as well-in Scotland at least- and came to Scots Law from Roman Law, so it has been around for upwards of 2000 years !!
post #34 of 38
Colin speaks quite wisely and factually. Some questions come to mind. True or false:

(1) (a)No on ever should be allowed to sue anyone else.
(b) Especially, people should never be allowed to sue any ski area, because ski areas NEVER do anything wrong and they bear NO responsibility for anything. Other businesses, of course, are different, so it might be ok to sue the living crap out of them.

(2) If a person is truly wrongfully damaged in any way by anyone else who has done something illegal, they shouldn't ever complain about it, much less file a lawsuit, because that would be whining and selfish.

(3) The profession of law should be discontinued entirely.

(4) We'd all be much better off without lawyers.

(5) No decent, self respecting person ever needs a lawyer.

(6) Most things about the legal system we don't like are the fault of lawyers, and other kinds of people bear no responsibilty for it.

(7) Since law is just common sense anyway, or at least it OUGHT to be, and any idiot knows what it is and why, there's no reason to pay any attention to those fools who have studied law, including the evolution of law from the time of the ancient Hebrews, Greeks and Romans, through the Civil Law based codes of Europe and the State of Louisiana, or the Common Law of England and the codes of 49 of the 50 United States based upon that Common Law.

(8) Lawyers all stick together. They never fight each other. They never file complaints about each other with their respective state's Professional Conduct Board.

(9) All lawyers, or at least most of them, agree on most things about legal matters. The only reason we have trial courts and courts of appeal is to provide employment for lawyers, not because there's any real disagreement or because their respective clients have any real disagreement. After all, they're all so stupid that there's nothing else they could do to earn a living.

(9) Lawyers - all of them or at least most of them - being the sleaze bags they are, have managed to become very, very rich. There's no such thing as a smart middle class lawyer. This especially applies to the huge majority of plaintiffs' lawyers, who take mainly bogus cases and then use a corrupt system to wring some money out of them. They seldom, if ever, represent anyone who has a legitimate claim, as having a legitimate claim is not morally possible.

(10) For the most part, having a legal system is a waste of time, because it rarely does anything worthwhile. It was better when kings ruled by divine right and no one really had to think much about it. Our forefathers really screwed this up when they decided that legitimate governments rule only with the consent of the governed.

(11) Anyone who's not a lawyer has absolutely no responsibility for anything legal whatsoever, so anyone who's not a lawyer should not lift even a little finger to participate in the process at any level - it's much mmore convenient to whine about it than actually to give of your time and effort to make it better in any degree, even though our forefathers, in rejecting the rule of King George III pledged their lives, their fortunes, and their sacred honor. Boy, were they suckers, or WHAT?! HA!

(12) Any stupid complaint that goes to court will be decided in favor of the stupid idiot that filed the complaint, while legitimate claims always get the heave-ho. The fact that a stupid complaint has been filed says it all - never mind waiting to see if the system works at all!

. . . and finanlly, true ot false:

(12) The public schools should teach even less about law, government, legislation and the legilative process, World History, and American History than they do already, because then more people could be even more ignorant about those subjects than they already are and could feel even more righteous in reacting with more emotion than curiousity and thought to any occurence involving any legal process or proceding.

In keeping with policy and procedure suggested by WTFH on another thread, I hereby designate and identify this post as SARCASM, perhaps humorous to some, and hopefully encouraging some thought, but with no intent actually to piss anyone off - JUST KIDDING! I'M A KIDDER!

[ August 04, 2002, 04:49 PM: Message edited by: oboe ]
post #35 of 38
Notorious Spag--
John Hughes rules. "The cheeks cannot hold the smoke, That's what it is..."

I have not seen even one episode of "Sex and the City". I don't have HBO, or whatever it's on. I don't like that "taco faced" Sarah Jessica Parker anyway. :

I'm like Cher. I haven't even got a last name, SCSA, let alone two of them.

As for my opinion on this subject. Nope. Not going there yet. (thank god, some of you are saying)

So much for my "time off" ...
post #36 of 38
Thread Starter 
Good points, Colin. But let's discuss your one statement:

I am not sure where the question- who is responsible?- comes from
Perhaps waivers are, as many suspect, merely meaningless documents that carry no legal weight whatsoever. If so, then the Colorado court's decision really is moot. I know, though, that that is NOT the case.

IF there are ANY rights that can legally be waived by signing a binding document, and if this is important protection to enable an outfitter, resort, or professional to do their job, then SOMEONE has to bear the responsibility, wouldn't you say? We now, according to the ruling, have two classes of people--"adults," who can take on responsibility for themselves and waive certain rights to sue others, and "minors," for whom NO one can take on that responsibility.

I do know that waivers have been extremely important in many law suits in Colorado, where they have repeatedly proven to hold up. Contrary to common belief, the courts HAVE recognized their validity. And I know that there have been some real problems that have arisen simply because a waiver was improperly signed--such as the tubing hill accident at Keystone two seasons ago. I have attended management meetings with Peter Rietz, the attorney identified in the article above, in which he described case after case where a waiver has been the legal saviour for a resort or other business in a law suit.

So apparently, it IS important, as a professional or as a business, to be protected by a waiver. This decision in Colorado may simply affirm (as I suppose most Supreme Court decisions do) what the law has been all along. Either way, it asserts that this important protection is NOT AVAILABLE from minors. Certain rights are waivable by responsible parties. But for minors, no one is, or can be, responsible!

If no one is able to waive whatever rights CAN be waived, and outfitters/pros must therefore take on significantly GREATER risk when dealing with minors, then I think we can expect many opportunities for minors to vanish! At the very least, the costs of those opportunities will have to skyrocket, to cover the risks.

Sorry--you must be at least 18 years old to participate in life. That is unfortunate.

So that's where my question comes from. I think it is a legitimate question, rhetorical though it may be.

Best regards,
Bob Barnes

[ August 04, 2002, 06:29 PM: Message edited by: Bob Barnes/Colorado ]
post #37 of 38
The general subject of "waivers' is fascinating, and more so in this case where parents may not waive rights for their children.

All waivers of rights are not the same, and for a person to waive rights, the person must know what they are. Minors are deemed not competent to have and responsibly exercise that knowledge. The parents can waive the PARENTS rights, but not the child's rights. But there's more:

There are case where certain formalities are required in order for rights to be waived. For example: In order to reduce overhead, it is convenient for employers to lay off employees who are the most highly paid. Frequently, employees with greatest tenure and seniority are earning higher wages or salaries than employees with less tenure and seniority, so it's convenient and economical to lay them of first for the greatest savings. It just so happens, though, that most of these employees also are OLDER than the others earning less. Thus, laying them of first has the adverse impact of discriminating against OLDER workers - forbidden under federal law and also the laws of some states. So, how to solve the problem?

Some companies try to solve that problem by offering "buy out" packages to people they hope will accept the offer and leave - thus, if planned right, saving the company money. However, companies who try this tactic also have lawyers who say, "Offer the buy out pacakage in exchange for a waiver of the employees' rights to sue for discrimination". Courts have decided that these waivers, signed by adults waiving their own rights, aren't worth the paper they're printed on . . . UNLESS the emloyee signing the waiver knew (a) exactly what rights he/she was waiving and (b) the actual value of the "package" being offered. Thus, some of us legal types have been asked to prepare documentation that accomplishes that and conforms with federal regulations. After the person signs the documentation, they then have to wait a period of time before they're allowed to sign and accept the actual "buy out package" - and then, they still have a certain number of days in which to change their minds! WHEW! That's quite a procedure , , , but, if followed properly, it does protect the employer in case the employee later sues for discrimination.

Sooooo . . . what does this have to do with the case in question? This: There are situations where decisions must be made on behalf of minors. One example (and there are others) is when a juvenile or other person deemed "not legally competent" is involved in a legal procedure - such as appearing in court at the age of sixteen when charged with a crime. In addition to seeing that the minor has a lawyer, the court also appoints a "guardian ad litem" - a guardian for the purposes of the litigation - to act on behalf of the child in, for example, choosing to accept a "plea bargain" and enter a guilty plea in exchange for a lighter sentence.

In other words, in some cases, there is a process in place for the protection of the interests of the child or other "incompetent".

Obviously, this process would be thoroughly impractical for use in waiving the child's rights to sue the ski area, so ski areas may not depend upon using the "waiver" mecahnism to protect themselves. Bear in mind, now, that a valid "waiver" gives up LEGAL RIGHTS THE PERSON ACTUALLY HAS. So, the person must actually have a legal right to sue the ski area in order to waive that right. So, how can ski areas be protected against suits brought by child skiers who are not allowed to waive their right to sue?

At least three methods come to mind.

First: If you can't prevent the child from suing, then prevent the child from winning by NOT VIOLATING THEIR LEGAL RIGHTS - exercise that degree of care required by law.


Third: Lobby the state legislature to limit the circumstances in which a plaintiff can recover from a ski area for damages sustained while skiing there. In Vermont, many plaintiff's lawyers will not take most cases against a ski area brought to them because of the limitations enacted by the Vermont legislature. However, there are some forms of negligence for which a skier may recover. One example is when the lift system fails and injures the skier [or other person]. The skier [or oher person] presumably has no control over that, while they should have control of their skiing.

The odd thing about this whole issue of parental waiver of rights and parental consent, is that who is for, and who is against, sometimes depends upon what is being consented to. I am wondering if the person(s) who decided that parents can't waive their childrens' rights to sue a ski area might also think that the child should be allowed to have an abortion even without parental notification, let alone parental consent. Apparently, some believe that the minor child is legally competent to make that decision, notwithstanding the serious family religious concerns about that subject.

It's all so imperfect, and justice is an ideal defined differently by different people. I don't think that the ski areas will be unduly burdened by this decision, that parents may not waive the child's right to sue; but whatever the decision had been, I know I would have felt uncomfortable with it.

[ August 04, 2002, 08:45 PM: Message edited by: oboe ]
post #38 of 38
Something else comes to mind, Bob. You have said that no one is responsible for the children - but that's not so. The parents are still responsible for the children - they have legal duties which they owe to their children, and they have legal rights regarding control of their children. When they miserably fail to exercise their legal duties, then their legal rights can be extinguished in a court of law, and the affected children can be removed from their "care and control".

One possible solution to this problem of waivers: In addition to having the parents sign waivers for themselves, also have them sign an acknowledgement that they are responsible for allowing their children to participate in the sport of skiing with its inherent risks and PROMISING TO INDEMNIFY AND DEFEND THE SKI AREA FOR ANY LAWSUIT BROUGHT BY OR ON BEHALF OF THEIR CHILDREN. That would be a condition of allowing the children to ski there. Check this out with the legal types at the resorts and see how it flies.
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