Dangerous Campgrounds

[RespondingBack]

http://blog.civiliansguidetolawyers.com/2013/01/24/sticky-business-non-negotiable-adhesion-contract-arms-race/

Let's see if this thread gets deleted.

I've noticed that more and more campgrounds give you a release to sign upon registering. The release is usually in tiny print, may be part of your registration form or a separate paper, and full of boilerplate legalese. As each campground will have a different release form, it's hard to know what it covers, especially subject to various state laws. Also, the release will not specify the exact claim you are releasing.

I can understand some rationale for a release, such as assuming the risk of using the swimming pool (know how to swim) without a lifeguard, hiking on trails in the boonies, using a kayak, etc. But let's take some of these releases to their extremes.

1. Release. The release may have you (and your estate, on behalf of your visitors, etc) release (waive) any claims you may have against the campground, owners, employees, etc. for:

A. Assumption of risk activities like using swimming pool, using weight equipment (and spraining a shoulder), hiking on trails, using ATVs, etc.

B. Negligence by the campground. For example, miswiring shorepower or the swimming pool so you get electrocuted, running a campground truck into your RV, not removing dead trees which fall on your RV, filling in a sinkhole and having you park on top of it, letting your credit card information and other personal information get posted all over the Internet, etc. Besides negligence, the release may try to cover other acts, perhaps far-fetched, like an ax-wielding employee (campground hires anybody), etc.

C. Contractual obligations. You waive any claim for reimbursement because there is no electrical, no hot water, nothing works, etc.

2. Hold Harmless, Defend and Indemnify

This is where the forms become really fun. The campground now turns you into their insurer. Not only have you released your claims against the campground, but you must defend the campground, insure their losses, etc., from anyone who files a claim against them--like:

A. You and Family Members

Despite signing the release, you sue anyways on the theory that the form is unenforceable as against public policy, an adhesion contract, etc. While part may be unenforceable, maybe the other parts of indemnity are not.

B. Your Invitees/Visitors

Your friends come and visit, and slip on the swimming pool decking which the campground employees just spilled oil. Your friend sues campground, and campground sues you to pick up the tab.

C. Your Own Insurance Company

So you slip and fall, and get your own health insurer to cover. Or the dead tree falls on your RV, and your RV insurer pays you.

Then, your insurance companies seek reimbursement from the campground. And the campground seeks their attorney fees, costs, etc., from you.

In addition, your insurance companies may be irked at you, saying you had no right to obligate yourself and your insurance companies under the campground form release (and maybe your insurance companies won't cover you).

D. Third Parties.

Somebody else sues campground, and campground thinks you should be responsible to defend them. For example, you are parked in the dry camping area and run your generator during the posted allowable times. Unbeknownst to you, there is a town ordinance prohibiting a certain noise at a certain time, and town fines campground big-time for this 100th violation on an escalating scale.

These forms may be compounded by mandatory arbitration (biased toward campground) and inconvenient state locale/jurisdiction. Different state laws will enforce these forms to various extents.

This is not just an issue with campgrounds. Other businesses (hospitals, docs, stores, repair, etc.) May have boilerplate fine-print release and indemnity type language which attempts to take away your rights and then turn you into their insurer.

How about this far-fetched example--a car repair shop botches up a brake job and you lose brakes and get into an accident and hit another car. Not only does the car repair shop expect to keep the brake repair payment, they expect you not to sue for the damage to you, your passengers, your car, but also to defend and insure them against the other car you hit.

Taken to the extreme, every business would have a form saying you waive all your rights against them, and agree to be the deep-pocket insurance company.

[sowego]

Most RV parks do have you sign something but I've never read such a lengthy statement. But, most of us who travel long or short term realize the campground will not be held accountable for "damages" of any kind and do protect their own investment/liability...it's just the way it is.

Unless someone intends to harm someone, damage goods and doesn't pay attention to what's going on...are we going to lose sleep over it? If we think a resort or campground isn't safe or we can't keep from damaging their property then we have the right to leave and it's best to do so before we check in!

It's tough but that's life!

[wintersun]

SRT wrote:
Do you wonder why the cost of some products are what they are...??? That's to cover the insurance that the manufacturer must carry if and when they are sued. Wonder why medical products/procedures are expensive? Check out all the ads on the TV by lawyers trolling for business. This country has lost some of it's being personally responsible - "Stupid is, as stupid does..."

Guess you have not figured out that the medical industry enjoys double the profit taking of the same industry in Canada or Europe. Congress actually mandated that the US government could not make bulk purchase agreements with the drug and medical companies as is routinely done in Canada.

Blaming lawyers are an easy way to get people to ignore the real crooks in the medical industry and their lackeys in Congress and the FDA. If companies behaved responsibly there would be no need for attorneys as their would be no victims or families of victims to sue - think about it for a minute or two and then go take a nap.

[Jloucks]

This quote, here. AAaannnndd done.

Ron3rd wrote:
Attorney in So Cal here; Those are called "exculpation clauses" and don't work if they are negligent in any way. You can't "contract away" your own negligence.

Assumption of risk is another issue, but still does not work if the other party is negligent.

[ol_Bombero-JC]

Responding Back to "RespondingBack":

Your thread starting post wasn't worth reading in it's entirety.

Whatever your agenda is (if there is one) hope you are enjoying the discussion you initiated.

But - here ya go - I'll agree with you.....

YIKES! - The sky *IS* falling!..:(

Soooooo........duck and cover...;)

.

[JJBIRISH]

Things like this are often agreed to and never seen or known about… they are contained in a master policy or master agreement in some mythical office somewhere that you have never been to and that you will never see, or will have to jump through loops to see…

They could all be removed from a CG registration form with a short clause saying you agree to all rules and regulations of the CG that are in effect at the time of registration and amended from time to time… and may be poster in the office somewhere or in the ultra-fine print of the CG map, rules, and regulations…

This is a part of your everyday life and most don’t even know it… you go to the doctor you agree to make payment not collected from your insurer no matter who is responsible for the payment…
The entire thread is about something that isn’t going to change and is so common it becomes insignificant in the grand scheme of things…

Don’t like it, simple solution… don’t sign it, protest it, then drive down the road and do it again… before you know it you will be at your destination and on your way back again…

[mich800]

Nearly 100% of the points above occur in all lawsuits. If you decide to sue you will need to defend or attack on all these fronts whether it is in a waiver or just presented as a defense. I think we are getting all wound up about nothing. In business lawsuits which I have had the been involved in are always attempting to undo contract for various reasons. And with respect to attorneys fees it is not some carte blanche. Some contract stipulate if you sue the loser pays attorney fees not some obtuse you pay for everything on the legal side. Good luck defending that language.

[RespondingBack]

Didn't realize I had taken a position on the tent example. I thought I was pointing out where claims of responsibility might be (e.g., none because Act of God, some on some parties for not moving or not controlling tent, and question mark on campground as couldn't think of one). But as the tenters and campground were both apparently sued by the downwind laughing parties, if the tents had signed some form with a defend, hold harmless, and indemnify, the tenters would be paying for the campground's defense in addition to their own. Maybe that's fair if the tenters were at fault and campground had no responsibility. Or maybe not fair to tenters as campground should foot its own costs against possibly frivolous lawsuit.

As to golf cart example, would you still be fine with paying for your friend's damages even if you were snoozing in your RV when this happened and your friend was not drunk? The form doesn't say you have to be responsible for causing or contributing the incident--just that you indemnify for the damages.

Why not dispense with all these forms, and just adopt a policy that no one is liable for their negligence. Campgrounds won't be liable for their negligence (except maybe gross negligence). You won't be liable for your negligence.

It will just be a matter of life is not always fair that you might get injured by someone's negligence and they don't have to pay (which in real life, often happens as the negligent party may have no resources--thus, the mandatory minimum insurance for drivers, etc.).

[RespondingBack]

It was your friend who was electrocuted in campground swimming pool. Your friend's estate sues campground and wins.

Under the form agreement you signed, the campground expects you to lay their attorney fees and the "lottery" payoff. You don't pay the campground right away, so they send to collection agency. Or they decide to sue you. You cross your fingers (having read your own insurance policies and understood them) and believe your insurance company will help you out and not say not covered--contractual dispute.

Lots of what ifs, and will probably never happen to anyone reading this. So why have these forms?

[RespondingBack]

Recently saw a news item where family kid was electrocuted in family swimming pool. Apparently, some in-pool lights had corroded.

If this had happened at a campground swimming pool, would you consider this one of the risks you and your kid had assumed by using the swimming pool (assumption of risk)?

Would you consider it the responsibility of the campground to check that in-pool lights had not corroded?

If yes, would you consider the campground negligent for not checking (or checking and not doing a good job of checking), or grossly negligent?

If just ordinary negligence by campground, then you'd be fine that campground is not liable?

[bigdogger]

RespondingBack wrote:
Understand a public policy balancing of who should be responsible for what (example of tenters in high winds posted earlier: Act of God so nobody should be liable, partial fault of laughing downwind suing folks for not moving and putting themselves in harm's way, partial or entire fault of tenters for not having control of tent even in high winds, partial fault of campground for not doing something?).

These forms attempt to absolve campgrounds of any responsibility (which apparently may not work in some cases). But, here are some issues where the forms still are problematic even if they don't absolve campground (a chess game--distract from merits of case).

1. You will have to get court to invalidate part of the release/waiver you signed.

2. In states that make the distinction between ordinary and gross negligence, and that prohibit waiver if gross negligence, you will now have the burden of proving whether the negligence is ordinary or gross.

3. You will also have to find a way not to be paying the attorney fees and legal expenses of the campground, if they are billing you under the form agreement and sending to collection agencies.

4. Under the sample agreement another poster kindly posted, as an example, your visiting friend was hit by a campground golf cart driven by a campground employee. Despite your signing the form agreement waiving your friend's claims, he sues and wins against campground. Campground then turns around, and asks you not only to pay their attorney fees and legal expenses, but the payment to your friend (per the form agreement you signed).

Discussion to date has focused on whether the campground was negligent or grossly negligent, and whether campground could still be liable regardless of form signed.

Not much discussion as to whether your signed agreement to defend, hold barmless and indemnify campground would naturally be invalidated as well, especially with regards to indemnifying campground against third parties, like your friend hit by a golf cart or third parties like the example posted earlier of downhill laughing folks who sued the other folks trying to take down their tent in high winds and the campground. In that latter situation, if the tent folks had signed something like that sample form posted here, they could be paying for the campground's attorney fees and legal expenses, and any damages the campground is liable.

5. Nothing mentioned here re mandatory arbitration, which is also often in favor of the party specifying the arbitration. Some forms may specify mandatory arbitration, etc., and then you have even more hurdles.

It sure looks like you are going to have to make some changes to your lifestyle to avoid these onerous waivers. Don't think businesses are going to give them up voluntarily and I doubt legislation to make it easier to sue people and businesses would be a politically popular stance.
In your examples, if a campground employee ran into someone with a golf cart and caused injuries, they should be sued. Whether or not there is additional liability depends on what happened. If they ran into your friend because you and he were in a drunken fight and you shoved him into the road, the park has every right to mitigate their damages by suing you. If a tent camper loses control of his tent in a windstorm and it hits another camper, how is the park responsible for any damages? Hence the reason for the waivers, it would demonstrate to the court (should such a stupid lawsuit make it that far) that the park put the tenter on notice that winds do occur in the great outdoors (again, like any idiot didn't already know that). That such a waiver and notice was necessary in the first should be considered ridiculous. But your post indicates you think that such a lawsuit would have merit, so you are supplying your own proof that waivers are needed.
In my opinion, it should be hard to sue businesses and people. We would all benefit I the long run

[RespondingBack]

We will all vary in our opinion as to who is more responsible and should be liable. Not to get too side-tracked:

Postings about re product liability and costs. Should GM be responsible for deaths and injuries caused by faulty ignition switches? Or should the bankruptcy absolve them of any responsibility (after all, only cost the American public couple billions of dollars). Should it be buyer beware--get an engineering degree and take car apart to make sure it works-go buy another car from another manufacturer you trust more? How about third parties injured by the GM car who didn't buy the GM car? Who was in the best position to know these ignition switches were faulty (and the fact that GM engineers apparently testified in earlier lawsuits that there were no issues)?? By the way, according to ??? it was really the car owners' fault as they should have known not to use big heavy keychains.

Do regulations decrease costs of products and harm to society, as manufacturers have to meet certain standards (like reporting defects) and buyers and third parties can rely on those standards?

Shouldn't we deregulate American ferries to increase competition and reduce fares? Ignore what happened to the Korean ferry with lax government and industry oversight.

Under federal law to encourage oil drilling (really to protect oil companies), BP was limited to only a small percentage of what they "voluntarily" paid on its oil spill liability in the Gulf.

Back to the thread, who is in a position to know more about the campground and its operations and conditions? Does it make sense for campgrounds to be able to waive even their ordinary negligence which harms a camper (we're not talking about the Darwin award campers but where campground was negligent, just not grossly negligent)?

Who is in a better position to get the insurance (can one even buy insurance to cover your indemnity of campground?)? Why does it make sense for campers to become insurers of the campground against the camper's claims, the camper's visiting friend's claims, third party claims of folks suing campground and campers?

[RespondingBack]

Understand a public policy balancing of who should be responsible for what (example of tenters in high winds posted earlier: Act of God so nobody should be liable, partial fault of laughing downwind suing folks for not moving and putting themselves in harm's way, partial or entire fault of tenters for not having control of tent even in high winds, partial fault of campground for not doing something?).

These forms attempt to absolve campgrounds of any responsibility (which apparently may not work in some cases). But, here are some issues where the forms still are problematic even if they don't absolve campground (a chess game--distract from merits of case).

1. You will have to get court to invalidate part of the release/waiver you signed.

2. In states that make the distinction between ordinary and gross negligence, and that prohibit waiver if gross negligence, you will now have the burden of proving whether the negligence is ordinary or gross.

3. You will also have to find a way not to be paying the attorney fees and legal expenses of the campground, if they are billing you under the form agreement and sending to collection agencies.

4. Under the sample agreement another poster kindly posted, as an example, your visiting friend was hit by a campground golf cart driven by a campground employee. Despite your signing the form agreement waiving your friend's claims, he sues and wins against campground. Campground then turns around, and asks you not only to pay their attorney fees and legal expenses, but the payment to your friend (per the form agreement you signed).

Discussion to date has focused on whether the campground was negligent or grossly negligent, and whether campground could still be liable regardless of form signed.

Not much discussion as to whether your signed agreement to defend, hold barmless and indemnify campground would naturally be invalidated as well, especially with regards to indemnifying campground against third parties, like your friend hit by a golf cart or third parties like the example posted earlier of downhill laughing folks who sued the other folks trying to take down their tent in high winds and the campground. In that latter situation, if the tent folks had signed something like that sample form posted here, they could be paying for the campground's attorney fees and legal expenses, and any damages the campground is liable.

5. Nothing mentioned here re mandatory arbitration, which is also often in favor of the party specifying the arbitration. Some forms may specify mandatory arbitration, etc., and then you have even more hurdles.

[bigdogger]

RespondingBack wrote:
OP: Yes, I have seen these waiver and indemnity language at several commercial campgrounds in last year. If had not, wouldn't have started this thread. Seems like not too common yet or folks just haven't noticed the fine print.

No, will not mention their names (actually can think of only two at the moment). Have not tried a search on the web, but presumably might be able to find some published on the web.

On a somewhat humorous side note, have also seen automatic consent to having your photograph/video of you used for commercial purposes by an amusement park--you buy a ticket and enter. Language is broad and doesn't necessarily limit to a flattering portrayal of you for amusement park--could end up advertising laxatives for an "affiliate" of the amusement park.

I'm surprised I haven't seen any postings along the lines of (a) you should have read and understood the fine print, your responsibility (see those postings whenever folks complain about refund policies for reservations, warranties, campground policies, etc.), (b) you signed and agreed, so you should abide by those terms, etc.

Ultimately, these provisions may be things we can't do anything about (all in favor of more Walmart parking) unless federal or state laws abrogate these provisions, or courts toss them out. I believe makes it a more uphill battle to pursue claims.

Also don't like the whole concept of registering and signing a whole bunch of boilerplate, besides the waiver and indemnity.

What claims to you feel you will have an uphill battle pursuing? The law is very clear that any waiver you sign will not abrogate your rights to sue for Gross Negligence. I have seen a lot of people behaving stupidly at campgrounds, just like I have seen them behave stupidly everywhere else. Jrbirish's post lists a few things that everyone should know is stupid and dangerous, but people do anyway. I've watch people with metal handled brooms standing on top of their rigs, water hose blasting while they scrub away, all the time blissfully unaware that they are about two feet from making contact with the power lines that are 20 feet off the ground. If they should zap themselves into the afterlife, is that the park's fault? A waiver's purpose is not to defeat liability, it is to slow down the flow of people who think everything that happens is someone else's fault and who's first thought is to call a lawyer and try to win a jackpot in the legal system lottery.

[SRT]

Do you wonder why the cost of some products are what they are...??? That's to cover the insurance that the manufacturer must carry if and when they are sued. Wonder why medical products/procedures are expensive? Check out all the ads on the TV by lawyers trolling for business. This country has lost some of it's being personally responsible - "Stupid is, as stupid does..."