Legal indemnification

gprellwitz

gprellwitz

Touchdown! Greaser!
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Grant Prellwitz
A flight school I'm looking at has the following "Covenant Not to Sue, Liability Release, and Assumption Of Risk Agreement". Would you sign it, and is it enforceable? Basically, it seems to say that even if we're negligent, you can't sue us.

I, _________________________________, herby affirm that I am aware that flying and activities associated with flying have inherent and unforeseeable risks which may result in serious injury or death. I understand and agree that neither my instructors nor xxxxxxxxxx, LLC, nor any of their respective employees, officers, agents, contractors, or assigns, (hereafter referred to as “Released Parties”) may be held liable or responsible in any way for any injury, death, or other damages to me, my family, estate, heirs or assigns that may occur as a result of my participation in flying aircraft, flying in aircraft, flight instruction, aircraft rental, aircraft operations, ramp operations, or any associated activities involved with these activities, (hereafter referred to as Flight Activities), or as a result of the negligence of any party, including the Released Parties, whether passive or active.

[...]

I understand the terms herein are contractual and not merely recital, and that I have signed this document of my own free act and with the knowledge that I hereby waive my legal rights. I further agree if any provision of this Agreement is found to be unenforceable or invalid, that provision my be severed from this agreement; however the remainder of this agreement shall then be construed as though the unenforceable provision had never been contained therein.

I, _____________________BY THIS INSTRUMENT AGREE TO EXEMPT AND RELEASE MY INSTRUCTORS, xxxxxxxxx, LLC AND ALL RELATED ENTITIES AS DEFINED ABOVE FROM ALL LIABILITY OR RESPONSIBILITY WHATSOEVER FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH HOWEVER CAUSED, INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE.

I HAVE FULLY INFORMED MYSELF OF THE CONTENTS OF THIS LIABILITY RELEASE AND ASSUMPTION OF RISK AGREEMENT BY READING IT BEFORE I SIGNED IT ON BEHALF OF MYSELF AND MY HEIRS.
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Without knowing Illinois law (statutory and case), it would be impossible for anyone (even a real lawyer) to tell whether it's enforceable, but I would not sign it -- if they give me a bum airplane, I'm not willing to let them skate.
 
I had to sign one in order to fly USAF Aero Club aircraft. Just another extension on me not being able to sue the government if something goes wrong. I just kind of excepted that Uncle Sam owns me on and off duty. With that said, since the aircraft are USAF owned, they are maintained IAW DoD regs. We also have more restrictive policies than any other local flight school. Has it's pluses and minuses.
 
Ron Levy said:
Without knowing Illinois law (statutory and case), it would be impossible for anyone (even a real lawyer) to tell whether it's enforceable, but I would not sign it -- if they give me a bum airplane, I'm not willing to let them skate.
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Actually, it's not Illinois. This is for a rental place while I'm on vacation. Good point about it being state specific, though.

I also don't know if they're having a renter sign it as opposed to a flight student. Not that I think they should have anyone sign it. I don't think that they're planning to be negligent, of course; I just don't like the idea of a company being so arrogant as to have a customer sign something saying that they can't be sued if they are negligent.

And I don't think that this company is at all unique in this practice. I suspect that their insurance companies or their lawyers probably have them put that sort of language in there under the theory that if you don't ask for it, you won't get it.

As consumers, what are we to do? Theoretically, we could just walk away from these companies or re-negotiate the contract, but there's no way the clerk behind the desk is going to allow you to modify the contract, so walking ends up being the only option. And if all the companies have comparable weasel language, you're left without a source for whatever it is you're trying to get; an airplane rental in this instance.
:mad:

Edit: I should mention that the company that has this example agreement appears to be well respected. That would make it even harder to walk away over this.
 
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gprellwitz said:
A flight school I'm looking at has the following "Covenant Not to Sue, Liability Release, and Assumption Of Risk Agreement". Would you sign it, and is it enforceable? Basically, it seems to say that even if we're negligent, you can't sue us.
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1. Sign the agreement.
2. Preflight thoroughly
3. Don't crash.
 
I wouldn't sign it. The ability to sue for damages is not just there to provide you with a way to get compensation in case something happens, but it's also there as a deterrent for the other party so that they have a motivation to do things - in this case, aircraft maintenance - as good as they can.

-Felix
 
When faced with such documents, I usually stroke through the parts I don't agree with and sometimes add stuff I think is necessary. No one ever notices but I'm not sure where that puts you legally.
Someone once told me you cannot sign away liability for certain things such as gross negligence. Need an attorney to answer that.
 
You have two choices.

Sign and fly.

Don't sign and don't fly.

Their plane - their rules
 
Greg: I routinely scratch things out and initial them! Drives them nuts. I agree it's over reaching but it is for negligence. Most releases I've have seen still allow action for gross negligence, willful misconduct, etc. Waiving simple negligence might be in line with that. A release is different than an indemnification. I'll let the legal beagles chime in, but you are not agreeing to indemnify any party from what I see; just releasing them.

I would strike the sentence that says you waive your legal rights. IMO, you are agreeing to limit your rights a bit, not to waive all of them.

In the end, it forces you to have an attorney review if they won't take it with modifications you make. That's what I tell them: if you want me to sign this with out these changes, I will have to have my attorney review it; who should he call with his comments? That will bring things to a head very quickly because it may cost them something for an attorney to call their attorney.

I have not attended a Beech proficiency course because they insist on a waiver, indemnification, being a named insured and something else I don't recall. The agreement was drafted by a non-attorney. So, should something happen, it will be in a different state than the one in which I reside and the agreement is enforceable in a third state. My attorney said it probably was not enforceable, but think of the mess I'd be in on top of dealing with what ever caused the claim. I told them to purchase their own insurance; they weren't getting any part of my coverage. I know an attorney that attended. He said it wasn't enforceable and signed. If we all just sign and don't object, they'll just keep doing what they wish.

Best,

Dave
 
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"When faced with such documents, I usually stroke through the parts I don't agree with and sometimes add stuff I think is necessary. No one ever notices but I'm not sure where that puts you legally.
Someone once told me you cannot sign away liability for certain things such as gross negligence. Need an attorney to answer that."

Being that I am not a lawyer and do not give legal advise. I would agree with the above statement we still have the right to ammend contracts and if they don't agree I don't have to use their services.

Seems to me its your money and you can spend it anywhere you want without strings attached.

Having said that, I wonder how they can get around Federal Law Title 49 U.S. Code Part 91. They cannot delagate their responsibilites to you. I would contact an aviation lawyer and have them give you advise before signing such a document.

Just one man's opinion.
 
Or, just sign "Greg Prellwitz"!!

"I didn't sign that, Greg somebody did!"
 
Not much different than you sign on nearly any activity like diving.

Remember, Gross Negligence is never waived, it can't be, and even if you sign this, your heirs may still be able to sue on common negligence.
 
Let'sgoflying! said:
Or, just sign "Greg Prellwitz"!!

"I didn't sign that, Greg somebody did!"
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Interesting option, Dave. I've never had anybody "verify my signature" against my ID, or even really look to see or read what I sign on forms like these.

I bet you could sign "I refuse these terms" in cursive, and they'd never notice. :) Wonder how that'd work out for them if they pulled the document out and tried to use it in some legal action?
 
I'd look 'em in the face and ask why YOU should indemnify them if THEY improperly maintain the airplane, fail to perform required checks, or otherwise are grossly negligent. Ask to see all the logbooks at the outset.

Personlly, I'd either strike out the objectionable portions (I routinely rewrite agreements), or I'd walk.
 
wsuffa said:
I'd look 'em in the face and ask why YOU should indemnify them if THEY improperly maintain the airplane, fail to perform required checks, or otherwise are grossly negligent. Ask to see all the logbooks at the outset.

Personlly, I'd either strike out the objectionable portions (I routinely rewrite agreements), or I'd walk.
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My signature looks a lot like "declined" from time to time.
 
Sorry Grant! Don't know where in the world Greg came from; eyes looking down at shoes and shuffling side to side.

Best,

Dave
 
I sign the damn things without reading them.

In most places they aren't enforceable anyways, especially the parts like "Hold harmless for gross negligence blah blah."

Usually a waiver is a pretty good sign that you are about to have fun.

If the poo hits the fan, I really can't imagine anyone waiving a liability waiver in my face. Spend your effort on figuring out whether you will need to sue in the first place (does the place follow the rules, is the maintenance up to snuff?) and forget about the silly waiver. No crash=no need to sue.
Life is too short to be a pain in the ass about a stupid waiver like one of those.

The above ain't legal advice, and I ain't your lawyer. Do whatever the hell you please, but don't blame me.
 
It will not stop a lawyer from filing, he may not win but it will not stop them from trying. By the way EAA has the same type of form for Young Eagles.

Dan
 
Henning said:
Remember, Gross Negligence is never waived, it can't be, and even if you sign this, your heirs may still be able to sue on common negligence.
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Henning is correct. In general, an exculpatory contract cannot waive anything beyond "ordinary negligence," and you cannot waive the rights of anyone but yourself. In addition, it is of little value unless insurance is not available to the operator, and liability insurance is available to FBO's (you'll note that most of the skiing waivers offer you insurance at extra cost). See Chapter 7 in J. Scott Hamilton's "Practical Aviation Law" for more.
 
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As a sort-of-unrelated aside, a waiver you sign is not binding on your heirs should the worst happen.
 
KennyFlys said:
Aren't they interchangeable? Both are country boys, fly small airplanes and live in plains states that grow corn? :)
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Probably true during Ragweed season for me Ken! Seem to be making a lot of typos right now.

Best,

Dave
 
I note that you snipped some stuff in there with (...). Is there any Consideration in the waiver? If not, it is invalid in all of the states where I've ever had to deal with any contracts. (44)
 
GigG601XL said:
I note that you snipped some stuff in there with (...). Is there any Consideration in the waiver? If not, it is invalid in all of the states where I've ever had to deal with any contracts. (44)
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I think the "consideration" is that they let you fly their airplanes.
 
Ron Levy said:
I think the "consideration" is that they let you fly their airplanes.
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In so many words:
In consideration of being allowed to participate in Flight Activities, I hereby personally assume all risks of Flight Activities, whether foreseen or unforeseen, that may befall me while I am participating in these activities. I further release, exempt, and hold harmless the Released Parties from any claim or lawsuit by me, my family, estate, heirs, or assigns, arising out of my participation in Flight Activities including both claims arising during any course of training or after I receive my pilot certification(s).
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So if I wrote an agreement that read:

I ________________ agree to never sue Nick for anything

Signed:
_______________


Would it not be legal?
 
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SkyHog said:
So if I wrote an agreement that read:

I ________________ agree to never sue Nick Brennan for anything

Signed:
_______________


Would it not be legal?
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Sure, nothing illegal. It's not binding, nor does it meet the tests of being a contract since there is no consideration, but yeah, it's legal.
 
Henning said:
Sure, nothing illegal. It's not binding, nor does it meet the tests of being a contract since there is no consideration, but yeah, it's legal.
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How about this:

In consideration of being alive, I _______________ agree to never sue Nick for anything, ever.

Signed:
________________________
 
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SkyHog said:
How about this:

In consideration of being alive, I _______________ agree to never sue Nick Brennan for anything, ever.

Signed:
________________________
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Try,

In consideration of $1.00, I _______________ agree to never sue Nick Brennan for anything, ever.

Signed:
________________________
 
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