How about the contracts at ski hills and the like.
There are often extensive clauses about the sport being dangerous, etc, etc. Then they claim no liabilility even if negligent.
This looks like a contract. Is it enforceable? (I’m thinking about the “even if negligent” part.)
That’s just under 2 seconds at 70 MPH, the typical speeds on interstates in my area. That is the textbook minimum safe following distance. If you are following more closely than that, a rock may be the least of your troubles.
If a rock comes loose from his load, it is going to also be initially traveling at the same speed as you and the truck then it is slowed by air resistance then hits the pavement. If you are following right on his bumper and it hits your car, it would hit with roughly the same force as if you were standing still and someone dropped it straight down.
I had a broken windshield from a rock but it came up from under a truck’s rear tire, which can slingshot it out at high speed. The truck bore no liability and my insurance paid it under comprehensive.
If you can travel 70 mph, then you might have the room to stay back 200 feet.
http://law.campbell.edu/lawreview/articles/28-1-107.pdf
Here’s a review of some recent cases, showing that some waivers are enforceable, and some aren’t. State laws and the specific wording of the waivers are key factors into deciding what can be enforced and what can’t.
Not sure about where you are, but what I’ve read generally is that the obligation is to forsee and prevent any injury that might arise in the general course of people going about their business. For example, a sign is useless against children too young to read - so a dangerous dog (or tiger, or bull) must be properly protected (e.g. decent fencing) against a child wanting to pet the cute doggie. Similarly, a hole warning “big hole, beware” doesn’t absolve you, but a fence making it difficult to climb over and fall in is probably enough to absolve you.
(There’s a legal expression “attractive nuisance”)
IANAL but from what I’ve read, it’s the usual “reasonable man” defence. If it’s an unusual hazard, it must be protected against. There’s the famous case of the kids on the roof of a school in California(?) who fell through a glass skylight _ it had been painted over so they did not see it as walking on a sheet of thin glass. Trespassing was irrelevant - they knew people got up on the roof, they should have had had appropriate warnings and precautions (what if it had been the phone or cable guy?)
I remember a lawyer acquaintance who discussed this - basically said what this thread is saying. You cannot make someone sign away your liability for negligence. What it does is have the skier acknowledge “yes I know this sport is dangerous”. When he does a Sonny Bono, he (or his heirs) can’t say “you enticed me, I didn’t realize this could happen.” It’s a hill, at some points there are going to be trees, it’s standard in the business. The ones in the main ski run have been removed (we hope). It’s a fast sport, if you can’t control yourself, there’s nothing the ski hill can do to remedy that except warn you not to exceed your capabilities, which a reasonable man should understand anyway. But if the chair falls 60 feet off the lift due to mechanical negligence - the hill will be liable no matter what the signage.
Burton Snowboards, for example, won a case against a fellow (his estate) a while ago. the guy took a jump, off the run I believe, and ended up head-down in 10 feet of snow unable to extricate himself and suffocated. The disclaimer he signed when buying the snowboard exonerated Burton. Basically, “you know this is a risk, there’s nothing we can do to stop you, so you accept the risk”.
Actually that case was an adult burgler and the key element was that it is illegal to paint over a school skylight and thus the district performing an illegal act made it liable.
As I read Telemark’s article,
It depends on the state and often on the specific verbiage (for example, if negligence is not mentioned, they can be held responsible, so therefore, by specifically mentioning it and having me initial it they are pretty well covered, and
The guys at the last resort I went to must be up on all this. I think I’d have to argue intentional harm to have a chance at getting a claim on them.
New question: If Telemark, skiing recklessly, slams into me or mine, can I sue HIM?
IANAL, but I believe Briney could have used a gun to protect himself, but not to protect his property, and since he wasn’t even there obviously it’s not being used to protect himself. Iowa does have Castle Law, where there is no duty to retreat, but that still doesn’t mean you can shoot people to protect your property.
Also, there are sometimes that emergency personnel like firemen or police might have to enter property despite the owner not being there, and a booby trap doesn’t distinguish between burglars or firemen or drunk people wandering into the wrong house accidentally.
But there have probably been other threads that discuss this further, with people who know a lot more about it and legal matters talking about it.
Are these signs on the trucks so large that they can be read from 200 feet back?
Indeed.
Is it legal to boobytrap your own property?
Legal to build a killer robot for home defense?
Is it legal to booby-trap your own property? (Yes, this is a separate thread from the first one.)
As a law-talkin’ guy, I will say that spring guns - with or without signs - are about as close as you can get to things which are “always illegal everywhere,” though in fact there are a couple of jurisdictions where they are at least theoretically legal. I feel fairly confident in saying that even in those jurisdictions you would be liable to anyone injured by one.
It can go against you in a dog bite case if your dog isn’t properly leashed/muzzled. The warning signs on the back of a gravel truck serve the same purpose. If you tailgate and the truck has to stop short, the odds of gravel being ejected from the truck increase despite being properly secured.
It’s a matter of not being able to claim you knew of no danger.
Thanks for posting this. I see these signs on the highway and they are usually on the back of trucks that pretty much are deliberately dropping rocks on the road. In fact, I did get a windshield crack from one and I have never fixed it.
ETA: I don’t know what the 200 feet has to do with anything because they are flying off the back off the truck and bouncing all over the place.
This isn’t legal advice, but in the US at least, I’m pretty sure you can’t disclaim away negligence in that context with the truck. There are other circumstances where a warning should be sufficient to remove liability (e.g. “wet floor” signs against slip and fall claims).
BUT such a sign might be factored in to determine the negligence of the plaintiff. In most states, if the court finds that the plaintiff contributed to the negligence to cause the harm, the plaintiff recovery will be proportionate to the amount of negligence of each party. E.g. Plaintiff’s caused 20% of the harm, defendant 80%, and 100K damages. Plaintiff recovers 80K.
But the stuff about such a signed being factored in, don’t know if there’s any case law to support it so please don’t take my word.
45 states, to be specific, but in most of those the plaintiff’s recovery will be eliminated entirely if the plaintiff is either 50% or 51% or more at fault.
Many states including mine have special statutes allowing ski resorts to disclaim liability for risks inherent in skiing, including snow conditions and maintenance.
If you fall in the lodge because of wet snow, that’s not usually exempt.
Sure it does, Its a step to reduce risk.
Its a physical risk reduction, in the same way as fences, gates , or other physical barriers … its a sign saying “don’t come any closer unless authorised”.
Many times a court has said "you should have put up barriers and signs, so pay punitive damages ".
You seem to be referring to retail law, such as signs saying "no returns in any circumstance. ". There may be legislated circumstance where the return has to accepted. The return does not have to be accepted in many circumstances, so the sign is mostly right…
However a sign that is totally fake, such as a “warning, Building is nuclear active stay clear” could be taken as a crime and as a wrong that can be subjective to actual and even punitive damages.
More whargarble!
I think this is the issue that the OP revolves around. Skiing can be dangerous. Ski hills attempt to groom their runs, but often can’t fix everything all the time:
Rocks will pop out of the snow
Snow groomers may leave unusual ridges
Slaloming skiers will leave deep grooves, moguls, etc.
Skiers will often find interesting paths around trees, over small cliffs, and other dangerous paths
Other skiers may build jumps.
Other skiers may run into you.
Skiers who exceed their capabilities or have an oops will argue (since much money is involved) that the particular hazard that did them in was caused or foreseeable by the hill operator and should have been corrected; but some hills cover several square miles and they cannot correct every individual effect that they, the skiers, or mother nature have created. Either don’t allow skiing at all, or make the law exempt these issues.
This is the grey area - it’s not “real” negligence, but the fact that correcting every issue requires superhuman effort and in some cases defeats the purpose of the sport, so the law recognizes this and says this action is not negligent.
Other than this exception - I’m curious in what jurisdictions you can sign away your right to sue if the other party is grossly negligent? I can see the skiing exception - this is a known component of the sport - car crashes and flying tires in auto racing, fly balls (and bats) in baseball, etc.
Where the risk is serious and recurring, like pucks in hockey, operators have tried to compromise with nets, but it will be a sad day when baseball stadiums are covered with giant nets or Nascar stands are behind huge thick wire nets capable of restraining several dozen pounds travelling at 200mph. (yes, there are fences up to a certain height)
but failing to maintain the ski lift and the chair falls 60 feet to the ground? Wide open holes where people travel, no warnings? Etc.? Obviously and normally avoidable with proper controls? Can you sign that away?
AFAIK, every single jurisdiction holds that contracts which disclaim negligence (and gross negligence, recklessness, or intentional acts) are void as against public policy.
Skiing is an exception because of the special statutes were meant to cut lawsuits off at their knees. Failing to property maintain miles of hillside may or may not be negligent, but the ski slopes would have to defend against every injury, thereby putting them out of business. However, falling from an improperly maintained ski life is not a risk you assume when skiing. These statutes are an exception to the general rule.
The other things you mention are part of the standard of care you owe to invited visitors: warning against open holes that aren’t readily visible, or repairing them. So long as those “proper controls” are those that are considered what a reasonable person in that situation would institute, then any contract purporting to disclaim them are void against public policy.
Foul balls at a baseball game are a good example. Reasonable stadium owners put nets up behind home plate so someone isn’t killed. They don’t put nets up all around the ballpark because customers demand better visibility (and a chance to catch foul balls). Everyone entering a stadium knows this and assumes the risks inherent in watching a baseball game.
If some drunk pukes all over a stadium bathroom floor and it is left sitting for hours and I fall in it, that is not a risk that I reasonably assumed when I attended the game. The stadium owes its patrons a duty to monitor and clean up the restrooms. Putting up a sign that says “Not responsible if you slip on drunken puke left for hours” doesn’t make it so. Making me sign a contract or printing it on the back of a ticket stating that the stadium is not responsible for slipping in drunken puke is void against public policy because it is in the interest of everyone that the stadium act with due care in keeping the bathrooms clean.
The problem I have with the “not responsible for objects thrown from roadway” signs on those dump trucks is that the majority of the time, those “objects thrown from roadway” are falling out of the back of the truck onto the road because the load of gravel or whatever isn’t properly tarped, and then the rocks that fell out of the truck are kicked onto your car by the rear tires of the truck.
Often times as well those “stay back 200 feet” signs aren’t legible until you’re within 200 feet as they are small, and even then a truck that’s slowly dropping it’s load of rocks or gravel onto the road can easily kick those rocks over 200’ onto your car, chipping your windshield or paint.
I HATE being behind those things. I wish they had their own special lane that they couldn’t deviate from.