Groundspeak guidelines/disclaimer change

[+Al 7365]

Groundspeak have just changed the guidelines/disclaimer regarding owners responsibility for there caches it can be seen here.

 

It now states: ' Groundspeak is not in any way responsible or liable for caches or their placement. All aspects of your cache and its placement are your responsibility, and you may be held liable for any resulting consequences. '

 

Where as before the emphasis of the disclaimer was as I understood it to say that everyone cached at there own risk, for extreme caches disclaimers on pages reminding and re-enforcing this message. Now however it appears that cache owners are liable for any incidents/injures that may result from there caches. For normal caches these would be damage to property ect. but with this new guideline this would suggest that if anyone injured themselves on an extreme cache the owner would be liable.

 

For me this is very worrying and I have taken the step of disabling all my extreme and extreme(ish) caches until I can establish the consequences of this change. While all my caches have disclaimers this would appear to counter this, I do attempt to limit risk through use of PMO but this does not entirely stop the issue. I may archive my extremes as a result of this, does anyone have any thoughts on the issue?

[+mellers]

Well.... seing as you've asked for thoughts, rather than concrete evidence etc, my thoughts are that...

 

riders or no riders (from Groundspeak or individual COs), if someone gets injured doing a cache and decides to sue, it would be a nasty experience for all concerned. The existence of a rider isn't going to stop (on both ends of the scale) vexatious litigation or necessary compensation for injuries sustained if and when the worst might happen. I don't think the situation now is any different from that which is was before and if you feel that your riders protected you (legally) then, you should feel that they still do now.

 

The bottom line however, will be when something ever gets to actual lawyers and/or actual court. At which point judges start to consider the reasonableness of the situation and the reasonableness of the actions of all parties concerned. Each case would be considered on its own merits and riders or not, a case would have to be decided on what each person said and did in this unique situation. You can't possible guess what a judge would consider reasonable unless you know the ins and out of something which hasn't yet happened.

 

I don't think that disabling/archiving all a CO's extreme caches is an appropriate response to this amendment. I don't think you are any more or less legally protected now that you would have been. Legalities aside, if someone hurting themselves on one of your caches bothers you then YES, you should review them and archive those you think pose a danger to those who search for them.

[+Jonovich]

I totally agree that Groundspeak should not be held responsible for any claims resulting from injuries sustained whilst attempting a cache: -

 

" Groundspeak is not in any way responsible or liable for caches or their placement."

 

however I think it is wrong for the wording to go on and indicate that maybe the responsibility could lie on the shouilders of the cache owner: -

 

" All aspects of your cache and its placement are your responsibility, and you may be held liable for any resulting consequences. "

 

The responsibility should start and end with the cache finder.

 

If Groundspeak can place an exclusion as to their responsibilites, then under the same logic so can the cache hider. All my caches that I believe have the potential to cause the cache finder injury in their recovery, I have placed a "You cache at your own risk" disclaimer on. Maybe I should put it on ALL my caches?

 

Why the OP singled out extreme caches is interesting, can the logic that someone drowning doing an extreme kayak cache be differentiated from someone getting run over crossing a road to a phone box to retrieve a cache from inside it? In both cases the cacher was there because of the cache owners placement of the cache.

 

Jon.

[+MartyBartfast]

I would see this:

 

All aspects of your cache and its placement are your responsibility, and you may be held liable for any resulting consequences.

 

as a warning rather than a statement of fact. As Mellers said above in the event of anyone making a claim against either Groundspeak and/or a cache owner, the fact that it's written on a web page somewhere that you're not responsible is not a "get out of jail free" card and ultimately the liability will be decided by the court. So having this statement in the guidelines isn't making you any more liable than you were before, it's simply warning you that you can't rely on the discalimer on the cache page to necessarily absolve you of all responsibility.

[+ivanidea]

From my days in H&S, I know there is a law which means that 'unfair terms in a contract' can be voided if the contractee is trying to get out of their responsibility.

 

Also, the land owner is ultimately responsible for the safety and welfare of visitors (including uninvited).

 

But, it will be the courts who decide who is ultimately responsible, but if I was to sue somebody, I would choose the one with the most money (or assets), ie the landowner.

 

But to be on the safe side, check your household insurance also has legal cover as well.

[HugoRune1965]

I don't think that the terms and conditions actually change the liability as far as Groundspeak are concerned. It is more likely to be an acknowledgement that liability may be different in different countries and it is the responsibility of the cache owner to understand the possible consequences of cache placement in their particular juristiction.

[+The Growler]

If liability has changed, wouldn't caches placed prior to this change not be bound by it?

[team tisri]

Groundspeak have just changed the guidelines/disclaimer regarding owners responsibility for there caches it can be seen here.

 

It now states: ' Groundspeak is not in any way responsible or liable for caches or their placement. All aspects of your cache and its placement are your responsibility, and you may be held liable for any resulting consequences. '

 

Where as before the emphasis of the disclaimer was as I understood it to say that everyone cached at there own risk, for extreme caches disclaimers on pages reminding and re-enforcing this message. Now however it appears that cache owners are liable for any incidents/injures that may result from there caches. For normal caches these would be damage to property ect. but with this new guideline this would suggest that if anyone injured themselves on an extreme cache the owner would be liable.

 

For me this is very worrying and I have taken the step of disabling all my extreme and extreme(ish) caches until I can establish the consequences of this change. While all my caches have disclaimers this would appear to counter this, I do attempt to limit risk through use of PMO but this does not entirely stop the issue. I may archive my extremes as a result of this, does anyone have any thoughts on the issue?

 

Turning legalese into plain English based on my (non-legally qualified) understanding it reads something more like this:

 

If you attempt a cache and hurt yourself along the way don't blame us, make sure before you start that it's safe. If you think it's safe go for it, if you think it's beyond your abilities give it a miss.

 

If you set a cache and someone does something boneheaded attempting to find it they may sue you. If you place a cache on someone's land without their permission they may sue you.

 

If you want to take the boneheaded suing of someone else for consequences of what I freely chose to do you could end up with all sorts of silliness. If I reach for a cache and take an eye out on the branch I didn't notice, is that your fault as the cache setter or my fault for not looking what I was doing? How would the situation be any different if I noticed a wallet someone had dropped and poked my eye out bending to retrieve it?

[+MartyBartfast]

If liability has changed, wouldn't caches placed prior to this change not be bound by it?

 

Liability is decided by law, and in court if it goes that far, not by what Groundspeak decide to put on their website. Putting this statement on the website makes no difference to the legal situation and merely acts as a reminder/warning to cache hiders.

[+Jonovich]

Liability is decided by law, and in court if it goes that far, not by what Groundspeak decide to put on their website. Putting this statement on the website makes no difference to the legal situation and merely acts as a reminder/warning to cache hiders.

 

And as a reminder to particularly loathesome individuals out to make a buck or two, that they maybe able to claim for that toe they stubbed on a fence post in the general vacinity of a cache or two....

 

Jon.

[+martlakes]

The actual disclaimer on the cache page hasn't changed. So the bit the OP quotes is really just reminding you that if **** happens don't expect Groundspeak to bail you out. This is presumably, how it's always been.

 

The cache page disclaimer is worth "who knows what" in terms of legal help, however, it does point out that there are dangers out there, which might be useful in a court case.

 

AFAIK there is in fact plenty of legal stuff that means you can't sue a landowner over the normal and natural hazards that a reasonable person would expect to encounter while out for a walk on their land. Yes, they probably need to fence that old mineshaft, but no, they don't have to fence that cliff. We know this from the fact that every cliff isn't signed and the courts aren't full of cases of people tripping over a root or stone.

 

How all of that relates to someone looking for a cache, I've no idea cos I'm not a lawyer. I know there was one nasty case a few years back, which didn't go anywhere in the end, but caused the CO a lot of grief.

 

All I can tell you is I have a lot of caches out, and I hope I'm not going to get sued! Mind you, I don't have much dosh anyway!

[+RichieCactus]

I agree with the latter posts

 

eg "AFAIK there is in fact plenty of legal stuff that means you can't sue a landowner over the normal and natural hazards that a reasonable person would expect to encounter while out for a walk on their land. Yes, they probably need to fence that old mineshaft, but no, they don't have to fence that cliff. We know this from the fact that every cliff isn't signed and the courts aren't full of cases of people tripping over a root or stone."

 

I have studied law (many years ago - mostly contract stuff) but I'm pretty sure (in the UK anyway) the law is not there to give idiots reasons to sue reasonable people. For example, if I say to you "Hey - you must climb Ben Nevis, its a great view"... and you climb and injure yourself - then thats your responsibility. People must take responsibility for their own actions. Similarily with an extreme cache - you are taking on something at your own risk (imho). I guess there could be a case against you if you set a 1/1 rated cache on the edge of a precipice with no warnings... but even then the CO did not make you go and look for it.

 

The thing that worries me a little bit - if every cache page has to get plastered with Legal Disclaimers and such like !!

 

rgds

 

RichieCactus

 

ps: re-enable those caches Al - theyre on my ToDo list for this summer !! ;-)

[+Kryten]

If I remember correctly there has already been litigation in the UK by someone who broke their ankle while (allegedly) attempting to find a cache. The action failed because it was impossible to prove that the injury was uniquely the result of searching for a cache and could equally have been the result of going for a walk in the country. One day however somebody will make a claim that sticks.

[+keehotee]

If I remember correctly there has already been litigation in the UK by someone who broke their ankle while (allegedly) attempting to find a cache. The action failed because it was impossible to prove that the injury was uniquely the result of searching for a cache and could equally have been the result of going for a walk in the country. One day however somebody will make a claim that sticks.

 

AFAIK that one didn't even make it to court......

[+Simply Paul]

AFAIK that one didn't even make it to court......

Correct, but it was a very stressful business for the cache owner and left a very bad taste in their mouth. You'd hope courts would always consider whose choice it had been to put themselves at risk, but you can't be sure that's the situation. Hence the insurance Mega events are pretty much obliged to have, to protect those running them.

[+niknrich]

It would be interesting to find out how the authors/publishers of walking books/magazines get round this issue. If I'm following a walking route from a book and slip and injure myself, do I have the right to sue the author/publisher, even if they had written a disclaimer in the book about tricky terrain, suitable clothing etc?

 

If it's a case of being responsible for your own actions and looking where you're going, and no I couldn't sue, then surely the same principle should apply to geocaching...?

 

There is legal precedent for the 'look where you're going' stance: you can't sue your local council if you trip over an uneven paving stone and hurt yourself, because no council can ever ensure that 100% of all the paving stones in its area are completely level, 100% of the time. In H&S legislation you are responsible for your own safety, first and foremost.

[+MartyBartfast]

It would be interesting to find out how the authors/publishers of walking books/magazines get round this issue. If I'm following a walking route from a book and slip and injure myself, do I have the right to sue the author/publisher, even if they had written a disclaimer in the book about tricky terrain, suitable clothing etc?

 

I wonder if the difference is in the nature of the "no win no fee" scumbag lawyers?

 

If I broke my leg while out for a walk and had to pay for a solicitor to take it to court for me then I wouldn't do it due to the likelyhood of failing and ending up with a huge legal bill.

 

If I approach a "no win no fee" solicitor to take on a publishing house then they know the publishers will have their own team of lawyers and the claim is therefore likely to fail and so won't take on the case 'cos they would be out of pocket. Even if they did try it on then a letter from the publishers legal department would probably stop it at the first hurdle.

 

If I approach a "no win no fee" solicitor to take on Joe Cacher, then they might think they're in with a chance of scaring poor old Joe witless who might settle out of court rather than face the risk going all the way, losing and ending up liable for the compensation and all the costs. Even if Joe decides to fight it's likely to cost him a good few quid to pay his solicitor to tell them to hop it.

[+Flyfishermanbob]

Hence the insurance Mega events are pretty much obliged to have, to protect those running them.

 

Not strictly true , The insurance for Perth was a prerequisite for the use of the premises, it didn't cover any of the "side-events" held during the week, and was only valid on the day of the event

Mega 2014 will be the same .

 

 

[+HEADLANDERS]

I really can't really see how the situation with geocaching is greatly different from other outdoor adventure activities suck as hill walking and rock climbing. I don't recall hearing about any claims for injury in such activities against the landowners or publishers of climbs. The situation would of course be very different if a cacher placed a cache on private land without the owner's permission which tectonically requires trespassing to reach it.

[+McDeHack]

So I shall state in the future. " The cache owner will not accept any responsibility for damage to property or person whilst in the search for this cache. You do so at your own risk."

P.S. I wonder if I could get insurance for this?

Edited May 9, 2012 by McDeHack

[+HEADLANDERS]

As discussed above a 'disclaimer' in itself can offer no protection against a potential claim if it should it ever go to litigation. However, I personally believe that a short and succinct 'disclaimer' placed at the foot of each cache description by the CO would have it's main value in reminding the cacher to take care and also read any warnings given in the cache page itself about particular hazards in the location. Perhaps it would be good if someone with the necessary knowledge could draft one appropriate for the region in standard form for others to use.

[+MartyBartfast]

So I shall state in the future. " The cache owner will not accept any responsibility for damage to property or person whilst in the search for this cache. You do so at your own risk."

 

 

Others have also previously included something along the lines of "The details on this page are for information only and are not an invitation to search for this cache" although often in more 'legalese'.

[+solletjes]

... If I reach for a cache and take an eye out on the branch I didn't notice, is that your fault as the cache setter or my fault for not looking what I was doing?...

 

Or the fault of the one who planted the tree, or the bird who dropped the seed of that tree, or the person who set free the bird that dropped the seed, or the local authorities who did not remove the tree or even decided to leave it there, or...?

 

I guess we should get rid of lawyers and these sueing practices, and just be careful what we do.