Liability Insurance and cache placement

[+Common Blue]

First time user of the Forum so I will take this opportunity to say Hello all.

 

I have been planning placing some caches on land near my home belonging to a large country estate. I tracked down the Land Agents and requested permission to place a number of caches along a section of the Cleveland Way that runs through the said estate. They have replied today giving consent providing additional permission is given by the Forestry Commission who manage the woodland (which is not a problem). BUT stating also that the estate would have no liability for any accidents or injuries and that I should have appropriate insurance in place to indemnify the Estate. Is this a common requirement others have experienced? I certainly don't fancy coughing up for liability insurance on top of the cost of the caches and contents etc.

 

Any advice would be most helpful.

 

Regards

Common Blue

[+stijnhommes]

Ask a lawyer if posting a notice that says "searching for the cache is at your own risk" and if it would would indemnify the land owner.

If not, I wouldn't bother. I haven't had the problem come up yet, and chances are I wouldn't because people around here aren't at all litigious.

 

I always consider finding caches a liability for myself (and not the land owner or cache owner). If I decide to go somewhere, I should look after my own safety.

Unfortunately, not everyone agrees with me.

[+Happy Humphrey]

Presumably the Cleveland Way people (Natural England) are in the same boat.

 

If you have to indemnify each and every landowner along the way then they must have to as well. It could be worth contacting them and checking whether your geocaching visitors are covered by their insurance; after all, they are simply Cleveland Way walkers. The risk is that one of them tries to sue if they fall over and break a leg on the walk, but you may be able to redirect them to the Cleveland Way insurance.

 

There has been one case (that I know of) of a geocacher attempting to sue the cache placer, but it was unsuccessful.

 

As an aside, I've heard of plenty of injuries through rock climbing mishaps but no problems with landowner liability.

[+duncanhoyle]

Presumably the Cleveland Way people (Natural England) are in the same boat.

 

If you have to indemnify each and every landowner along the way then they must have to as well. It could be worth contacting them and checking whether your geocaching visitors are covered by their insurance; after all, they are simply Cleveland Way walkers. The risk is that one of them tries to sue if they fall over and break a leg on the walk, but you may be able to redirect them to the Cleveland Way insurance.

 

There has been one case (that I know of) of a geocacher attempting to sue the cache placer, but it was unsuccessful.

 

As an aside, I've heard of plenty of injuries through rock climbing mishaps but no problems with landowner liability.

 

Presumably the Cleveland Way passes along public rights of way on footpaths/bridlepaths. I think it would be the land owners public liability insurance that covers walkers. This insurance should cover anyone using their land even including (I think) people there without permission.

[+keehotee]

Presumably the Cleveland Way passes along public rights of way on footpaths/bridlepaths. I think it would be the land owners public liability insurance that covers walkers. This insurance should cover anyone using their land even including (I think) people there without permission.

 

Liability will depend upon who maintains the path..if the local council is ultimately reponsible for keeping it clear, the same insurances would apply as to any other council property...

 

Where a highway is maintained at public expense the highway authority has liability for users who are injured because the route is in disrepair. However, a highway authority can take action against a landowner who had created any source of danger or failed in their responsibilities towards maintaining the highway. Landowners can also be liable where the path is privately maintainable for example permissive paths or toll rides.

[+Happy Humphrey]

Presumably the Cleveland Way passes along public rights of way on footpaths/bridlepaths. I think it would be the land owners public liability insurance that covers walkers. This insurance should cover anyone using their land even including (I think) people there without permission.

The landowner would presumably have asked Natural England (Cleveland Way) to indemnify them against any litigation due to an injury or loss when on their land. They have done that in this case, so they would have done the same when the Cleveland Way was opened.

 

As the Cleveland Way is similar to a geocache or a guidebook, i.e. it encourages people along a particular public footpath, then it follows that a geocache setter would need the same protection against the law as a guidebook writer. Essentially the Cleveland Way is a guidebook, as is a geocache. The fact that it's a public right of way doesn't seem to be relevant.

[+Happy Humphrey]

Liability will depend upon who maintains the path..if the local council is ultimately reponsible for keeping it clear, the same insurances would apply as to any other council property...

If it's a public footpath then it's always the landowner who has to maintain it. Quite right too!

[+Common Blue]

Many thanks for your views on this topic. I've decided it's just not worth the effort to pursue placing caches on this estate owners land. I guess the requirement for me to provide indemnity is their way of saying "yes you can place your caches here, but we'd rather you didn't". A quick check on costing for liability insurance comes in at a minimum of £40 per year and I'm not prepared to pay that. As an aside I just wonder how many chunks of liability insurance there are along the Cleveland Way - even on the short section I was thinking of placing caches there is the estate owner, the land agents, the Forestry Commission and the North Yorks National Park to name but a few. I guess they will all have their own liability insurance to cover their own various activities.

 

Thanks again - back to some serious caching

[+MartyBartfast]

Many thanks for your views on this topic. I've decided it's just not worth the effort to pursue placing caches on this estate owners land.

 

I think that's the right choice. When this issue has come up in the past it's been thought that even if you were prepared to stump up for liability insurance you shouldn't do so as that would set a precedent so that other landowners might then demand it and before we know where we are it could become a very expensive game.

[+Happy Humphrey]

I just wonder how many chunks of liability insurance there are along the Cleveland Way - even on the short section I was thinking of placing caches there is the estate owner, the land agents, the Forestry Commission and the North Yorks National Park to name but a few. I guess they will all have their own liability insurance to cover their own various activities.

I doubt that the Cleveland Way will have such insurance. It's the same if you write a guide book: AFAIK there's no need to have insurance.

 

Someone could try and sue the Cleveland Way if they slipped and fell on the section of path you're talking about but they would simply refer them to the landowner if there was evidence of negligence (for instance, if he'd dug a hole in the path and then covered it with thin plywood and someone fell through). The same if you'd written a guidebook to the Cleveland Way. I don't think it takes a lawyer to know that our victim of the hole would have little chance of suing the guidebook writer for directing them down this section of path.

 

In your case, I think the landowner is trying to get you to take responsibility for anyone who comes a cropper on the footpath and who says that they were on their way to/from a geocache. A good thing to keep out of! That'd be like the guidebook writer accepting responsibility for accidents that happen anywhere mentioned in the book, and thus having to take out an insurance policy.

 

Rock climbing guidebooks are potentially in a worse situation. After all, they're encouraging people with or without any knowledge of climbing safety techniques to perfom death-defying feats on various peoples' land. Usually without the landowners' knowledge or permission. And yet there's not a problem, even though I don't think that writers are insured against claims.

[+duncanhoyle]

Many thanks for your views on this topic. I've decided it's just not worth the effort to pursue placing caches on this estate owners land. I guess the requirement for me to provide indemnity is their way of saying "yes you can place your caches here, but we'd rather you didn't". A quick check on costing for liability insurance comes in at a minimum of £40 per year and I'm not prepared to pay that. As an aside I just wonder how many chunks of liability insurance there are along the Cleveland Way - even on the short section I was thinking of placing caches there is the estate owner, the land agents, the Forestry Commission and the North Yorks National Park to name but a few. I guess they will all have their own liability insurance to cover their own various activities.

 

Thanks again - back to some serious caching

 

That's a shame, but understandable.

 

I recently applied to the Forestry Commission for permission and the 7 page legal document which they returned for me to sign stated (amongst other things) that I wouldn't be responsible for the safety and welfare of cachers looking for my caches.

[+Happy Humphrey]

I recently applied to the Forestry Commission for permission and the 7 page legal document which they returned for me to sign stated (amongst other things) that I wouldn't be responsible for the safety and welfare of cachers looking for my caches.

I've had several caches approved by the FC without such paperwork. All I've had to do is agree to some commonsense guidelines regardig placement.

 

This sounds way over the top, and although it appears to absolve the cache placer of responsibility I don't think I'd be signing anything that even gets into that area. Or signing anything at all. Why bother, just for a cache in a spot that's probably public access anyway? We should keep these things in proportion.

[+ivanidea]

From my experience of H&S and UK law (10 years ago), a landowner is responsible for all persons (invited or otherwise) who enters their property.

 

This means that a burglar who trips over whilst wondering around your home in the dark can sue you!

[+maxkim]

From my experience of H&S and UK law (10 years ago), a landowner is responsible for all persons (invited or otherwise) who enters their property.

 

This means that a burglar who trips over whilst wondering around your home in the dark can sue you!

 

....and maybe the odd Police Woman.... :(

[BOBBLES WORLD TOUR]

From my experience of H&S and UK law (10 years ago), a landowner is responsible for all persons (invited or otherwise) who enters their property.

 

This means that a burglar who trips over whilst wondering around your home in the dark can sue you!

 

If they survived my anger.

[+Moote]

First time user of the Forum so I will take this opportunity to say Hello all.

 

I have been planning placing some caches on land near my home belonging to a large country estate. I tracked down the Land Agents and requested permission to place a number of caches along a section of the Cleveland Way that runs through the said estate. They have replied today giving consent providing additional permission is given by the Forestry Commission who manage the woodland (which is not a problem). BUT stating also that the estate would have no liability for any accidents or injuries and that I should have appropriate insurance in place to indemnify the Estate. Is this a common requirement others have experienced? I certainly don't fancy coughing up for liability insurance on top of the cost of the caches and contents etc.

 

Any advice would be most helpful.

 

Regards

Common Blue

Vicarious liability apply to anything and everything you do, this means that ultimately you can be sued, or even arrested on a manslaughter charge for a cache placement, it depends on circumstances and also common sense. So if you place a cache at the bottom of a cliff face, make sure that the top is protected from someone just wondering over the top edge (not everyone caches in daylight) and mention the fact that it is at the bottom of a cliff in the description. If you failed to do that, the liability could fall on you. As for insurance, I doubt you will require it, with the exception of an Event, which as an arranged function actually requires insurance to be legal to hold.

[+Ben0w]

Really? I doubt that. But I'm no lawyer...just already had arguments with U.S. institutions and their law departments about inappropriate product liability regulations in their contracts (and won).

 

Before getting an insurance you should check against what you will be insured and/or what can happen plus who really would be responsible. Hold in mind that almost in any cases someone can't deny his initial responsibility or pass it on (even if they always will try!), especially in criminal law (which a possible injury may affect).

 

• If there is a public path, then the one who maintains the path is responsible to keep it in reasonable shape or set proper warnings/safety mechanisms in place, to protect the common passer-by from usual danger. This "usual danger" does not include heavy disaster situations (i.e. uncommon rock fall, surprising landslide, meteorite strikes) or other conditions where the normal sense tells you to not go there even if not explicitely stated otherwise (i.e. massive amount of snow, flooded area ...).
  
• If there is no path intended for public usage but the area is still accessible, then the land owner has lesser but still a certain responsibility to shield dangerous places (sudden holes or else), but can expect a lot more responsibility from the visitors who should be aware of the wilderness then, including cliffs and rough terrain.
  
• In case the property is surrounded by fences and clearly intended non-public accessible noone else has a business and there should not be a cache. But even then the land owner has a liability for his invented visitors or even occasional persons accessing the place (mailman, accidently wrong pizza delivery, emergency services), so he should make sure that no high risky dangers are in place...BTW, that's what a burglar may bring to court when getting caught in an unexpected trap, if he has the balls for it.
  

So if some cacher simply ignores common sense, warning/safety installations or fences, in the first place he's responsible for himself (or his kids). In the second place the land owner will be questioned if the installations were appropriate. But I can't think of a way that the cache owner could be held liable for placing a cache attracting visitors to a public accessible spot as long as the danger is not directly tied to the cache box itself.

 

Yes, there are grey areas when it comes to "usual/unusal" or "normal/surprising" and especially "common sense". That's what hits the news then. But that's not the norm - just remember, that's what insurances make their money with, and they make a lot of money with not happening events of all kinds.

 

With a bit of common sense and a cache that is not a danger itself, then there most probably is no liability issue. Not for the landowner (if his property is public he should take care anyway) and not for the cache owner. Be warned: this very well could be the case when the cache needs to be extracted from between a railroad track or is behind the shields of an electrical installation - if there is the slightest chance that a common cacher may believe it's safe to get there, THEN you're in trouble, at least partly. But we don't talk about such idiot caches here, don't we?

 

For negotiations with landowners being in doubt (or smelling some form of income) it may help, if you go through a brainstorming about what possibly could happen and what may be already covered by the property owner himself even without having a cache in the area. Should be the same.

[+Lonewolf_Geocaching]

Vicarious liability apply to anything and everything you do,

 

Nope. That has nothing to do with it. However it is a bit of a pickle to explain why so please bear with me.

 

Vicarious is third party. If a "worker" gets sued and his "employer" does not have training in place. Then the "employer" falls under vicarious liability. If the employer trained the worker. The worker takes all the blame and gets sacked for gross miss conduct. To get technical it is strict, common law Respondeat superior. Translated as "let the master answer"

 

To answer the original question and provide some advice....

 

What does apply here is a simple case of common law. You would have to prove violation of duty of care. The claimant must be able to show a duty of care imposed by law which the defendant has breached. Then of course the claimant would have to get past a defense of Volenti non fit injuria ("to a willing person, injury is not done"). Geocaching is inherently dangerous. Prove otherwise or leave the court room empty handed.

 

So basically without getting really complicated. Based on the "balance of probability" the defendant is going to have put out a pretty stupid cache to get sued. Right now there is no legal precedent that I am currently aware of to tip that balance.

 

For negotiations with landowners being in doubt (or smelling some form of income) it may help, if you go through a brainstorming about what possibly could happen and what may be already covered by the property owner himself even without having a cache in the area. Should be the same.

 

That is the right idea!

 

Or to put it another way if the landowner has done a quick risk assessment and implemented plans so far as is reasonably practicable to safeguard others then quite frankly the landowner protected too. Adding a cache does not change this basic legal principle.

 

I hope that all kinda makes sense as I type it at this late hour. In short we are all safe for now.

Edited April 29, 2013 by Lonewolf_Geocaching

[+Lonewolf_Geocaching]

Late night / early morning....

Edited April 29, 2013 by Lonewolf_Geocaching