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Liability waivers have a lot of standing in court, they just aren't a blanket exemption from liability like some believe. Under the law of tort, prior to injury
by voxic11 3y ago
Liability waivers have a lot of standing in court, they just aren't a blanket exemption from liability like some believe. Under the law of tort, prior to injury, the specific risk must have been known to and appreciated by the plaintiff in order for primary assumption of risk to apply. Liability waivers serve to establish that the risk was known and appreciated.
For instance in CA
> Releases and waivers of liability are usually enforced in California. They are considered contracts that, if properly drafted and executed, are recognized as valid agreements that limit your rights.
> There are four ways to challenge the validity and binding effects of a release or waiver of liability:
> ... Gross negligence or recklessness: The California Supreme Court recently held that releases are valid only to protect defendants from being sued for negligence. They are invalid if you can prove that the other party's conduct was more than negligent, e.g., gross negligence or recklessness.
https://archive.ph/20120911003148/http://www.sports-injury-lawyer.com/PracticeAreas/Attacking-Waiver-of-Liability.asp#selection-230.0-230.2 https://archive.ph/20120911003148/http://www.sports-injury-l...
- ramesh31 3y ago>... Gross negligence or recklessness: The California Supreme Court recently held that releases are valid only to protect defendants from being sued for negligence. They are invalid if you can prove that the other party's conduct was more than negligent, e.g., gross negligence or recklessness. That's the key here. Regardless of acceptance of risk, gross negligence cannot be excused. If this were a legit operation using a certified vessel, we'd be having an entirely different conversation. But what Rush was doing is the very definition of recklessness.
- voxic11 3y agoWe don't know for sure yet why the sub imploded. Its still possible that it was due to some design or manufacturing defect no one foresaw, in which case recklessness would not apply. But I agree it most likely imploded due to one of the design defects that Oceangate was warned about and recklessly ignored.
- dragonwriter 3y ago> There are four ways to challenge the validity and binding effects of a release or waiver of liability: You only include gross negligence/recklessness, but two of the others also potentially would apply here (jurisdictional issues aside): * Fraud or misrepresentations, and * Products liability: A valid release does not prevent you from pursing a case against the designer, manufacturer or distributor of a defective product.
- voxic11 3y agoYeah the products liability one is especially interesting. > Under a strict liability theory, the plaintiff merely needs to prove: - the defendant manufactured, distributed, or supplied a product; - the product was defective; - the defect caused injury to the plaintiff; and - as a result, the plaintiff sustained damages.
- jacquesm 3y agoThe second is why I think Spencer Composites is in big trouble.