Response to Waivers by Gary Eaton

The BLOG posted at the end of this message is the only one that I found about Releases and Preflight Passenger Briefings.

I do not have the capability to conduct a current research of Oregon Court of Appeals Decisions.

However, to start a search you might ask your local attorney to check out these cases and determine if the decisions are still valid:

Mann vs Wetter 785 Pac. 2nd 1064; Or. App. 1990

Landren vs Hood River Sports Club, Inc. 2001 U.S. Dist. LEXIS 21515

I believe that these decisions hold that: The Oregon Courts have ruled that waviers relating to sport activities are not against public policy. Since sport businesses do not provide an essential public service, any economic advantage in bargaining that a small business may have over customers will not create unequal bargaining power since customers have a multitude of alternatives.

"A wavier is governed by the principles of contract law and will be enforced if there is ( 1 ) no violation of public policy [ GBE: Like California Public Utility Code 5513 ] or ( 2 ) if the wavier is not adhesionary".

Source: "WAVIERS & RELEASES of LIABILTY, Sixth Edition

by Doyice J. Cotten and Mary B. Cotten

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Beth Miller and I agree that a formal Passenger Briefing could be very important in the defense of an injury claim. I advise each pilot to create his/her own briefing statement [ for example there is a difference of opinions about should the Paxs face forward in the direction of the flight, face backwards, or lean the side of their body against the leading side of the basket.] The important consideration is to be thorough and consistent. Yes, any Defense Attorney would advise you to have the Pax sign the printed Briefing Statement and have the signature witnessed and Notarized -- that's a bit too much for me ! There is a sample Pax Briefing at the IMC web site. Yours will be better ! Do not attach it to, or incorporate it into the Release Agreement.

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It is my personal opinion that the Release Agreement promoted by John M. Griffin and The Schantz Agency will not prevail at a Motion for Summary Judgment or at Trial. To my knowledge, the TSA thing has never been tested by a Court of any State.

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BLOG on the Willamette Aerostat Society site:

Monday, April 14, 2008

Waiver's

There has been much discussion recently about the use of, requirement for, waiver forms to inform passengers of the risks associated with a Hot Air Balloon flight. Many great suggestions have been made about the content and use of waiver forms.

Now, there is a new wrinkle being bantered about; the need to have passengers read, understand, and sign a form that they have been given a pre flight briefing. My question is this necessary ? [ GBE: YES ! Both from a Legal Defense point of View and from our moral obligation to inform the passengers about the risks inherent in our sport. The later comes from my dear friend Christine Kalakuka. ] What practices would/do you follow to insure passengers receive a comprehensive briefing prior to the flight?

[GBE: some might advise that this should be on the Balloonists' Web Site. I do not think that this would be necessary. ]

Let's hear your comments. To prime the discussion, here are a couple thoughts I have.

Have a checklist for the format and content of the briefing and use it when briefing passengers. The items to cover may vary from balloon to balloon or pilot to pilot. Having a consistent presentation that is documented may help in your defense. You should hear the oral Pax Briefing by Kim and Dave Lynch -- WOW - very thorough and always very consistent.

Determine the time to conduct the briefing(s) and make it consistent with all flights. We all are familiar with the pre liftoff briefing, but is this the best time to insure the passenger's attention. Should the briefing be held before they approach the balloon and the pre liftoff briefing used to review the material?

Have the passengers PRACTICE the landing position --- AGAIN -- until they do it before the pilot completes the Order: " Prepare for Landing" !

Have witnesses other than passengers to your briefing. This again may help in your defense with an impartial documentation of who said what when. Try to eliminate the Jokes and distracting comments. Assume that this will be on Video and the Judge and the Jury of the Victim's Peers will hear everything !