Liability Concerns

[muttz]

If a cache is placed on private properrty with the owner's permission, and a geocacher is hurt while looking for the cache is there any precedent of liability to anyone's knowledge? In other words has anyone ever been sued because some moron twisted an ankle looking for a cache on their property?

 

Thanks

 

Muttz

[+hikergps]

Not that I have heard of, but people get sued everyday for non-specific activity related injuries. I don't think that geocaching would be lokked at any different than any other recreational activity in regards to property owner liability.

[+briansnat]

Anybody can sue anybody else for any reason. That said, I don't think there is any more liability if someone twisted his ankle looking for a cache on your property, than there is if he twisted his ankle delivering a package.

[CoyoteRed]

Research "Recreational Use Statute." It specifically takes care of such issues, but varies from state to state.

 

Here is a page with links to various states' statutes.

Edited December 24, 2006 by CoyoteRed

[+The Leprechauns]

Thanks, CR, for beating me to posting the link. It spared me having to write a "this is not legal advice" disclaimer.

 

I will add the other point I wanted to make. Geocaching has been going on for more than six years. It seems like every traffic ticket, bomb squad false alarm and angry neighbor encounter gets reported week in, week out in these forums, local forums, and on cache pages. Don't you think that if there had been lawsuits and insurance claims over geocaching injuries, we might have heard about it? People have died while seeking caches. People have broken limbs. But I've not heard of any legal action. That doesn't mean it hasn't happened, but you think we would've known by now if it had.

[+nikcap]

...

I will add the other point I wanted to make. Geocaching has been going on for more than six years. It seems like every traffic ticket, bomb squad false alarm and angry neighbor encounter gets reported week in, week out in these forums, local forums, and on cache pages. Don't you think that if there had been lawsuits and insurance claims over geocaching injuries, we might have heard about it? People have died while seeking caches. People have broken limbs. But I've not heard of any legal action. That doesn't mean it hasn't happened, but you think we would've known by now if it had.

 

I've often wondered about that.

Just how often does an injured cachers, angry property manager or private property owner try to file a lawsuit?

Sometimes this sounds like this is a weekly occurrence ... maybe I'm too cynical.

[+briansnat]

But I've not heard of any legal action. That doesn't mean it hasn't happened, but you think we would've known by now if it had.

 

Nor does it mean that it won't happen. In fact I'm sure its only a matter of time before it does. Its why I added my own disclaimer to my cache pages. I know that disclaimers are nearly worthless, but I think its better than having nothing at all.

[muttz]

I may have picked a bad time to reenter the sport as far as hosting caches. I see the concerns on Groundspeak about cachers being mistaken for suspicious people. That's what got me thinking about litigation. As a society we have not only become more afraid, we have gona absolutely nuts with the suing of each other.

 

I wanted to host a cache that would be placed at the edge of a property, with permission, right up close to the sidewalk so that it could be accessed by those in a wheelchair really easy. The propertyowner cleans the sidewalks in the winter to keep things safe, but I doubt that he would be willing to invite even the slightest possibility of litigation.

 

So, how about we introduce a bill that Geocachers have no recourse against property owners where caches are stored? The politicians could add a bunch of pork to it like money for sled dog racing in Nevada, and we would have a law. Or, maybe Groundspeak could add a Term-Of-Service that everyone agrees to by signing up, or continuing to log in after enactment that states, "By registering to use, or continuing to use, the facilities and data provided by Groundspeak you agree to not hold any property owners liable for any sort of damages or injuries sustained while in the act of hunting for a a Geocache on private property." Not much, but would be a further point to bring up if sued.

 

I don't have anything that I own yet that anyone could hold claim to other than maybe my $38.00 microwave from Wal-Mart.

[+Renegade Knight]

Research "Recreational Use Statute." It specifically takes care of such issues, but varies from state to state.

 

Here is a page with links to various states' statutes.

 

Nice link.

In Idaho if the landowner doesn't charge, they are not liable.

[+nikcap]

... So, how about we introduce a bill that Geocachers have no recourse against property owners where caches are stored

 

...

 

I don't have anything that I own yet that anyone could hold claim to other than maybe my $38.00 microwave from Wal-Mart.

 

That sounds like a good idea.

 

BTW, you got ripped off on the microwave, the same one is at BestBuys for $34.99!

[+EraSeek]

Research "Recreational Use Statute." It specifically takes care of such issues, but varies from state to state.

 

Here is a page with links to various states' statutes.

 

Nice link.

In Idaho if the landowner doesn't charge, they are not liable.

Same with Washington and New Mexico. Probably the same for most states. Good to know. Nice link.

[+TheAlabamaRambler]

I have caches where I could see this as an issue.

 

Examples:

Hide It And They Will Come #2 is on my front porch. (an owned primary residence)

Gone Campin' is in the woods on my property at Lay lake. (an owned recreational property)

Gone Fishin' is on private property at a friend's marina. (a privately-owned business serving the public)

 

None are particularly hazardous but, as previously noted, folks can sue over anything!

 

I would interpret Alabama Recreational Use laws to hold me harmless at all three based on my (admittedly limited) understanding of these three pertinent paragraphs:

Landowners are not required to keep their premises safe or to warn visitors of hazardous conditions, structures, or activities on their property. However, landowners cannot deliberately endanger people who enter for recreational purposes.

 

People entering and using privately owned lands for recreational purposes are responsible for exercising due

care in their use of the land.

 

This liability protection is not valid if the landowner collects fees or rent for the use of the land. Exceptions can be, but not limited to payment for land leased to a government agency that then manages the property or nominal gifts to the landowner.

 

At least I hope I read that right!

 

The one I would question is Gone Fishin - at the marina. He charges to store and launch boats, and charges campground fees for use of the land, so by my reading of that quote he could be liable for injuries sustained by cachers hunting my cache on his land IF they were paying camping fees, right?

 

Ed

[+Geofellas]

... sled dog racing in Nevada ...

 

Drat - you just solved my next puzzle cache

[+Confucius' Cat]

The propertyowner cleans the sidewalks in the winter to keep things safe, but I doubt that he would be willing to invite even the slightest possibility of litigation.

Well I don't have really good authority on it but it is my understanding that if you leave the snow as it falls, the snow is an "act of God" under the law and the property owner incurs no liability. If however you shovel the snow and thereafter someone falls, it is now the property owner's responsibility.

 

I know this is wierd, twisted logic, but that is the current state of our litiguous society.

 

So perhaps your friend is unwittingly "inviting even the slightest possibility of litigation" already.

 

Liability, given the way law is practiced in the U.S. today, is really anybody's guess.

 

I really like the disclaimer on the Circle K Polar Pop cups (this is probably a regional thing) "CAUTION: CONTENTS EXTREMELY COLD" Is it real, or a joke?

[+TheAlabamaRambler]

I really like the disclaimer on the Circle K Polar Pop cups (this is probably a regional thing) "CAUTION: CONTENTS EXTREMELY COLD" Is it real, or a joke?

 

I have seen that on cups for frozen drinks the convenience stores here in the South sell as well. I suspect that has to do with drivers reacting poorly when it spills in their lap. It would be interesting to know.

 

On an opposite tack notice that coffee cups often have "Contents extremely hot" or some such obvious warning.

 

One famous lawsuit that started this was a drive-through restaraunt served coffee, a woman splilled it in her lap, reacted poorly and had a wreck.

 

The basis of her favorable decision was not that she was a klutz or that the restaraunt shouldn't serve coffee to drivers, but that the restaraunt used coffee makers that produced higher than normal temperatures.

 

Since most all restaraunts serve coffee at about the same temperature, cooler than that required to scald or burn the drinker, it was ruled that this created a reasonable expectation on the part of coffee drinkers that if spilled the coffee would not actually damage them.

 

In this case the super-heated coffee exceeded that expectation and in fact did damage the woman. It was further found that this was an ongoing problem which the restaraunt chain was aware of and chose not to address.

 

I'm no attorney, so that's my lay understanding.

 

So, as it relates to us cachers, I would think that we have a reasonable expectation that there is nothing in the cache or on the cache hunt that will hurt us THAT THE OWNER IS AWARE OF and fails to fix or warn against.

 

In Alabama the law is that a dangerous condition in infrastructure - say a big pothole or broken sidewalk, must be reported to the proper authority and that authority must have reasonable time to address (block off or repair) the issue before they can be held liable. So, the first guy that gets his wheel torn off in a sinkhole is out of luck, but the tenth guy, several days later after the authorities have been notified and failed to act, can recover damages.

 

For the cache that is on my front porch, then, if I knowingly had a defective step, had ignored it and not mentioned it in the cache listing, and a cacher broke his leg falling off of it, I would think I would be liable.

 

Alabama law, as quoted in my previous post, seems to say otherwise.

 

Who knows? The law may well be what the most convincing attorney in a courtroom says it is!

[+Confucius' Cat]

Who knows? The law may well be what the most convincing attorney in a courtroom says it is!

I think that is exactly the case. Laws start out as legislative action or "common law" (which means simply "the way things have always been" - and common law is not valid in a lot of places).

 

Then, since no two people can agree on what a series of words written on paper actually MEAN, the reality of the meaning evolves over time with decisions that are made by various courts in response to various cases.

 

So a convincing attorney who is well versed in the rules of the game can get just about anything past the judge- sometimes.

 

Then other judges rule based upon the previous judges' rulings and on it goes, like the telephone game, until the reality of the law bears little resemblance to the original legislative intent- or to common sense.

 

On a practical note however, it is really HARD to find a lawyer that is willing to take on a "crackpot" case. I suspect that is the major factor that keeps our society from going totally in the gutter lawsuit-wise.

[+TheAlabamaRambler]

On a practical note however, it is really HARD to find a lawyer that is willing to take on a "crackpot" case. I suspect that is the major factor that keeps our society from going totally in the gutter lawsuit-wise.

That, and the fact that plaintiffs and defendants often have no great assets! Suing po' folks never made an attorney wealthy. In the grand scheme of things, many of us geocachers would not be worth suing.

 

Then, plaintiffs often want attorneys to take their case at the attorney's risk and expense, so they are not in debt if the case is lost. That means attorneys want precedent - they need to be convinced they will win before investing their time and money in the case. Quite a lot of negligence and liability never makes it to court because neither side has any money, or there is no precedent that assures the attorney he has a good case, and few attorneys can work for free... if at all possible they want to KNOW they will prevail.

 

As far as I know there is no precedent for geocaching liability yet, so attorneys are likely loathe to take on such a ground-breaking case in the absence of a well-heeled plaintiff or deep-pockets defenndant!

 

At least that's how I would think, were I an attorney!

 

I have no doubt that such litigation is on the horizen, however. Once an injured cacher wins a a liability or negligence suit against a hider or property owner and sets a precedent - watch out! Others will rapidly follow.

 

Ed

Edited December 24, 2006 by TheAlabamaRambler

[+welch]

Research "Recreational Use Statute." It specifically takes care of such issues, but varies from state to state.

 

Here is a page with links to various states' statutes.

 

Nice link.

In Idaho if the landowner doesn't charge, they are not liable.

 

Interesting... what is the they did charge, who are they liable for?

 

Say a park charges a fee to place a geocache (can't think of any off hand, but somewhere, one might), would they be liable to the cache placer? What about to the people that go looking for the cache??

(Or would that all depend on whatever the state and local laws were? )

[+Confucius' Cat]

I have no doubt that such litigation is on the horizen, however. Once an injured cacher wins a a liability or negligence suit against a hider or property owner and sets a precedent - watch out! Others will rapidly follow.

 

Ed

FEEDING FRENZY!

 

Say a park charges a fee to place a geocache (can't think of any off hand, but somewhere, one might), would they be liable to the cache placer? What about to the people that go looking for the cache??

(Or would that all depend on whatever the state and local laws were? )

In the case of a state park... the deep dark secret is that a state is soverign. They can only be sued if the state ALLOWS the suit. So I doubt that any liability would be allowed to "sneak in" because of a placement fee.

[+michigansnorkelers]

I DID break my leg geocaching.

 

It was at a local Metropark.

 

After the xrays, MRI and Physical Therapy, my insurance company sent me a form asking all kind of questions regarding how and where I did this. They further wanted to know the insurance company covering the property. This information was mandatory to settle my medical claim.

 

When I phoned them explaining that it happened at the Metropark, they said that the park has no liability, and that was the end of it. However, if it were private property, they would go after the owner's insurance company.

 

So, it doesn't matter what the injured party says, their own insurance company is likely to go after the property owner in such a case.

 

BTW, my insurance company asked for this information 4 months after the injury.

[+Confucius' Cat]

BTW, my insurance company asked for this information 4 months after the injury.

Wow! A QUICK response for an insurance company.

I have had to offer evidence to support lightning damage claims over 2 years after the event.

[+Renegade Knight]

...Interesting... what is the they did charge, who are they liable for?

 

Say a park charges a fee to place a geocache (can't think of any off hand, but somewhere, one might), would they be liable to the cache placer? What about to the people that go looking for the cache??

(Or would that all depend on whatever the state and local laws were? )

 

I'm not an attorny, merely subject to all the laws attorneys argue about. Thus I think it works like this. If you charge for an activity that means you are providing a service and that the property is fit for that purpose.

 

That's the simple version. A ski resort would have a different standard for the Bunny Slope and the Advanced slope. If someone charged for geocaching...that would be a new thing.

[+Prime Suspect]

 

That's the simple version. A ski resort would have a different standard for the Bunny Slope and the Advanced slope. If someone charged for geocaching...that would be a new thing.

Ski resorts are a bad example. In many places (the entire state of Colorado, for example), ski slope operators are completely protected from being sued for deaths or injuries.

[+Right Wing Wacko]

We have just started this discussion within the Board of our local Geocaching Association.

 

What happens if someone gets hurt at one of our events? If I understand the law, the board of directors can be held individually liable for any damages.

 

We started a search for what they call "Board of Directors Insurance", but the monthly premiums are more than our total annual budget.

[+Confucius' Cat]

We have just started this discussion within the Board of our local Geocaching Association.

 

What happens if someone gets hurt at one of our events? If I understand the law, the board of directors can be held individually liable for any damages.

 

We started a search for what they call "Board of Directors Insurance", but the monthly premiums are more than our total annual budget.

So much for Geoevents... Goodbye, we'll all miss you... Chalk up another victim to the insurance/lawsuit industry.

 

I think you are probably right that the liability issue is real. I have run into this in "offshoot" church event proposals. Unless the church itself officially sponsors the event, the liability would have been squarely on MY shoulders.

 

You might want to check out Special event insurance. This link is just one of the first I found in a Google® search and is not to be considered an endorsement.

 

Another way around this might be to rent a hall. Then the hall's insurance (or your purchase of special event insurance through the hall) would cover the liability. In any case this would be discussed with the hall beforehand and if you like what you hear, you rent.

 

I also believe if you hold the event at a restaurant you would be covered.

 

On the plus side, most likely the individuals' homeowners' insurance will cover personal liability as a last resort (and perhaps a "rider" could be purchased relatively cheaply).

 

<edit speeeeeeling corrrrected and redundundundundancy removed>

Edited December 26, 2006 by Confucius' Cat

[CoyoteRed]

We have just started this discussion within the Board of our local Geocaching Association.

 

Check out the GGA website. The organizational structure they used insulates "those in charge" from such issues. We copied it for the SCGA.

[+Bud]

Research "Recreational Use Statute." It specifically takes care of such issues, but varies from state to state.

 

Here is a page with links to various states' statutes.

 

Nice link.

In Idaho if the landowner doesn't charge, they are not liable.

 

Wonder if placing a Subscribers Only cache on your own property would increase your liability then? You as the lister would be making that determination, and someone would have to pay to obtain the coordinates, hence, paying to enter your property on that particular task.

[CoyoteRed]

Wonder if placing a Subscribers Only cache on your own property would increase your liability then? You as the lister would be making that determination, and someone would have to pay to obtain the coordinates, hence, paying to enter your property on that particular task.

 

INAL, but I highly doubt it. The statues refer to charging for the use of the land, not charging for the access to data on a website that refers to an object on that land. I'd think it clear this is not an issue.

[+Bud]

Wonder if placing a Subscribers Only cache on your own property would increase your liability then? You as the lister would be making that determination, and someone would have to pay to obtain the coordinates, hence, paying to enter your property on that particular task.

 

INAL, but I highly doubt it. The statues refer to charging for the use of the land, not charging for the access to data on a website that refers to an object on that land. I'd think it clear this is not an issue.

 

INAL either, but if a simple person such as me can obfuscate this interpretation of paying to access land, imagine what could happen in the hands of a professional.

[+D@nim@l]

Here is some PA specific information which may interest you.

 

PA Rec. use of land and water act or thislink

[muttz]

Hey I was wondering . . .

 

Since this topic got many more replies than what I was expecting . . .

 

I'm not gonna be liable for like any carpal tunnel or stuff for those who were quotin' and typin' and quotin' and typin' am I?

 

I mean like, I really like my microwave (Refer to earlier post by me).

 

Anyhoo, I would wager that there are countless scenarios that we could conjure to discuss the possibilities of litigation. I was the tiniest bit astonished at the amount of conversation my original post caused. Litigation must be on our minds, or in the back of our minds.

 

I would say that there is probably more risk to having litigation come from a friend or family member falling while on our property than from a cacher. Previous posts indicating questions being asked by medical insurance companies wanting to know the details of an accident are an indicator of the possibility of such an event.

 

Say your sister Bobby Jo and her husband Bubba Joe slip on your basement stairs going down to the big freezer to get another bag of ice for the beer cooler. Now Bubba Joe fell on Bobby Joe causing an internal injury to her uterus where it resulted in her having to have a hysterectomy. Now Bobby Jo can't have any more kids, and she thinks that eight really wasn't enough. However, she loves you and would never think of suing you. Well, she'd go after your other brother who has a real job, but the incident didn't happen at his house. So you feel relieved. Then her medical insurance company goes after you to pay for her hysterectomy.

 

Now that was supposed to be funny. Let me tell you a true one so you all know why I posted the original question:

 

Years ago I was friends with a guy who had four brothers and one sister. One of the brothers was a drug using alcoholic. The family had one vehicle with insurance. They all lived in the same house with their parents.

The drug using drunk was out with a friend of his. They were both drunk and high riding around in his friends car. His friend wrecked. Neither were really hurt bad, but the friend had no insurance.

The drug using drunk sued his brothers insurance company. The family had one vehicle and one of the brothers had initiated the insurance on their one family vehicle.

Since the drug using drunk was a licensed driver and living in the same house the court determined that he could get money from his brother's insurance company even though neither his brother nor the family vehicle had anything to do with the accident.

He got enough money to buy some junk he wanted and a brand new motorcycle. That incident of insanity has always stuck with me.

[+Cardinal Red]

Here is some PA specific information which may interest you.

 

PA Rec. use of land and water act or thislink

 

Yes interesting reading. That was definitely written by Lawyers. You're protected from liability unless you're not. Did you notice the part about it has to be available to everyone. If you indicate ONLY Geocachers are allowed on your property, you could be inviting trouble. Gives a whole new meaning to a sign I have noticed near a local creek. No Trespassing. Fishermen Welcome.

[+Cardinal Red]

A search for the word "liability" in the UK Forum would find some discussion of an Injury Claim against a cache placer and at some point the landowner. Eventually it all came to nothing but certainly caused some unease for those involved. Is this thread discussion US specific, and the UK incident has no bearing here? Or nobody else read about it and that is why it has not been mentioned before? If anyone is interested I'm sure I could track down some links.

[muttz]

. . .Is this thread discussion US specific, and the UK incident has no bearing here? Or nobody else read about it and that is why it has not been mentioned before? If anyone is interested I'm sure I could track down some links.

 

I didn't find that when I was looking for posts about this subject. As far as this being US specific I would say no. I think this is turning into a general discussion of liability concerns from all of our ranks throughout the world. As for me, I'm interested in all data on the matter. Knowledge is power eh? Or at least a good illusion of power.

[+Cardinal Red]

Here they are then:

 

Black day just got Blacker!

 

UK Injury Claim

[+Confucius' Cat]

Hey I was wondering . . .

 

Since this topic got many more replies than what I was expecting . . .

 

I'm not gonna be liable for like any carpal tunnel or stuff for those who were quotin' and typin' and quotin' and typin' am I?

 

I mean like, I really like my microwave (Refer to earlier post by me).

 

Anyhoo, I would wager that there are countless scenarios that we could conjure to discuss the possibilities of litigation. I was the tiniest bit astonished at the amount of conversation my original post caused. Litigation must be on our minds, or in the back of our minds.

 

I would say that there is probably more risk to having litigation come from a friend or family member falling while on our property than from a cacher. Previous posts indicating questions being asked by medical insurance companies wanting to know the details of an accident are an indicator of the possibility of such an event.

 

Say your sister Bobby Jo and her husband Bubba Joe slip on your basement stairs going down to the big freezer to get another bag of ice for the beer cooler. Now Bubba Joe fell on Bobby Joe causing an internal injury to her uterus where it resulted in her having to have a hysterectomy. Now Bobby Jo can't have any more kids, and she thinks that eight really wasn't enough. However, she loves you and would never think of suing you. Well, she'd go after your other brother who has a real job, but the incident didn't happen at his house. So you feel relieved. Then her medical insurance company goes after you to pay for her hysterectomy.

 

Now that was supposed to be funny. Let me tell you a true one so you all know why I posted the original question:

 

Years ago I was friends with a guy who had four brothers and one sister. One of the brothers was a drug using alcoholic. The family had one vehicle with insurance. They all lived in the same house with their parents.

The drug using drunk was out with a friend of his. They were both drunk and high riding around in his friends car. His friend wrecked. Neither were really hurt bad, but the friend had no insurance.

The drug using drunk sued his brothers insurance company. The family had one vehicle and one of the brothers had initiated the insurance on their one family vehicle.

Since the drug using drunk was a licensed driver and living in the same house the court determined that he could get money from his brother's insurance company even though neither his brother nor the family vehicle had anything to do with the accident.

He got enough money to buy some junk he wanted and a brand new motorcycle. That incident of insanity has always stuck with me.

Let me take the time to formulate a comprehensive reply to your thought provoking inquir... OUCH! MY WRIST! MY WRIST! Is there a lawyer in the house?

[+Alan2]

Here is some PA specific information which may interest you.

 

PA Rec. use of land and water act or thislink

 

Yes interesting reading. That was definitely written by Lawyers. You're protected from liability unless you're not. Did you notice the part about it has to be available to everyone. If you indicate ONLY Geocachers are allowed on your property, you could be inviting trouble. Gives a whole new meaning to a sign I have noticed near a local creek. No Trespassing. Fishermen Welcome.

 

Also, after reading it too, I wonder if geocaching can even be considered a recreational activity under the statute. There's no test case yet. The defending attorney will probably have to make the case that the cacher is basically "hiking" which is something more in-line what these acts were legislated for.

[muttz]

Because of the ambiguity my original question has evolved to wondering what we could do now before there is an incident that sets a precedent that may quite possibly be one that would greatly hinder or outright stop geocaching.

 

I have read every post in two current threads, and all of the posts in two threads about a UK incident. I realize that geocaching is a global sport or game. However, if there already exists local legislation that in any way specifically protects geocaching and its paricipants then that legislation could be used as an example for other jurisdictions.

 

And quite possibly if someone gets sued in Anytown, USA and there is a good piece of legislation in Othertown, USA, then the person from Anytown might be able to point out that other members who participate in the activity are already protected over there in Othertown. I don't have any idea if that could be an assist or not in a situation like that.

 

I suppose that it may be futile to be proactive because if something got enacted to protect those who place caches then someone else would want something to protect those who hunt the caches, and then we would be bogged down in endless bureaucracy. Then in areas where the activity was really popular they would probably have to have licenses to participate just like a hunting license for wild game.

 

I suppose that it should suffice to say that if one is out hunting a cache and finds it in a tree at the edge of a cliff, and then that cacher slips while reaching for the cache and breaks a leg right there at the edge of the cliff, then the cache placer happens along and discovers the unfortunate person with the broken leg writhing in agony at the edge of that cliff, I would say it wouldn't be wise for the cache hunter to say, "I'm gonna sue you!"

 

Edited to make the last paragraph a run on sentence 'cuz it's funnier.

Edited December 29, 2006 by muttz