Falmouth

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Originally Posted by jpdiver

OK- so if I can't enter at Falmouth, are there any issues with entering at Cathedral? I am a CDS member. Other than there is not a nice walkway, are there any problems I should know about? It appears a little deeper going from Cathedral upstream rather than from Falmouth upstream. Any insight would be appreciated

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Policy:

1. Must be a current NSSCDS member and present membership card.
2. Must be an Abe Davis Award Recipient, or equivalent, and show proof.
3. Either have dived Cathedral before or diving with an experienced cave diver to the system.
4. Show proof of diving to a depth of 150 feet and doing at least 45 minutes of stage decompression.
5. Must hold a DPV specialty card and have logged at least 5 swim dives in Cathedral before a DPV may be used in the system.
6. No fees may be charged by those guiding.
7. The site may not be used as a training site.
8. A waiver would be required each time it is dived even if one were completed the day before.

Please remember to stop by Dive Outpost to complete a liability waiver and get gate access.

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Originally Posted by Genesis

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Originally Posted by DeWayne

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Originally Posted by Genesis

There's a simple solution to that problem, and I intend to address it with the work I'm going to put into it.

That is, you add language to the Sportman Act that pleading this section is both a fully-sufficient defense AND that persons succesfully asserting this defense are entitled to (not may, but SHALL) recover all expenses of their defense from those who bring suit.

That stops the crap dead cold.

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While up front it sounds good, chances of getting it approved and passed are slim. It would be along the same lines as being able to counter-sue for lost time due to having to go to court, which is not allowed. The system is set up to avoid punishing someone for bringing a case which may later prove to be invalid. What is frivlous in the eyes of one is not always so in the eyes of others. Not saying that I totally agree with the way the system is set up, but I know there has to be some form of protection there. Waivers wherein you you agree that your estate will not seek recompense have already been overturned stating that one cannot sign away the rights of their heirs. It would be great if this proves to be wrong, but I would not get overly excited about it too soon. Willie S. may have just had something with his idea.

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I don't know DeWayne, that the Sportsman Act is there is already 90+% of the battle. The language is extremely strong - it actually does bar suits by someone's heirs, as the release is not something you give, but something the landowner has.

That's not a small distinction in the legal world. The usual language is "<X> covenants not to sue" or somesuch. This is "<X> (landowner) has no liability."

They SOUND the same but they're NOT! The first suffers from the problem you identified, but the second (which is what's already there) doesn't.

It is not far from there to costs being recoverable, given the absolute nature of the liability shield. There is a huge difference between being able to get "lost time" and being able to get attorneys fees and costs. The former ain't gonna happen - the latter happens all the time in civil cases, and people get sanctioned from time to time for filing actions barred by statute too (more often in federal than state courts though)

I've looked (in the available published opinions, which is the only "easily" findable cites - and the only ones with precedential value) for an example of someone managing to "pierce" the Sportsman Act, but haven't been able to find ie. I won't say it was an exhaustive search, but it was a fair effort.

Well-written statutes tend to discourage that sort of suit, because no lawyer wants to press a civil case where they won't get paid. Most of those sorts of cases are taken on a contingency basis - they're not billed out hourly to the person filing them, for the simple reason that those bills get REAL big REAL fast and throwing good money after bad isn't usually on most people's list of good ideas.

Before these sorts of suits get brought most attorneys are going to take a long, cold, hard look at whether there's any realistic chance of getting paid, and if the answer is "no", the client gets told "look, I don't think you can win this because of <X> - if you want to put up a $20,000 retainer and be prepared for $100k+ worth of bills to see this through discovery, ok, but otherwise this thing is a non-starter."

99.9% of the time that's the end of it.

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The Sportsman's Act is one of the best pieces of legislation to come down the pike in a very long time, still, it is not absolute and chances to make it as such are likely slim. If it can be done then by all means do it. The trial attorneys associations typically lobby against anything that will limit their time in the court room. One can collect leagl fees in a civil matter, but first one must prove that a wrong was committed against them and that litigation was the only means of resolving it; huge difference from trying to collect for lost wages due to the time one has to spend in court to defend themselves. Those attorneys who take cases on contigency still bill by the hour, they just don't present the bill unless the case is won; at that time they will collect their fees and costs first, then take their percentage out of the balance. There are a few who like to challenge laws that sound rock solid simply to make a name for themselves; if they can see any holes at all they will try to exploit it.

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One can collect leagl fees in a civil matter, but first one must prove that a wrong was committed against them and that litigation was the only means of resolving it; huge difference from trying to collect for lost wages due to the time one has to spend in court to defend themselves.

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I don't think anyone's talking about collecting for lost wages due to your time in court. We're talking about actual attorney's fees and costs - those are the sorts of awards that scare off potential suits, because they have this funny way of being six figures AND not subject to a contingency contract (that is, you sue on a "can't lose" basis - no award no pay - but then you get whacked with the defense's legal bill!)

Go ask anyone who's been through an ugly divorce how often this happens - answer: ALL THE TIME.

As for the Sportsman Act, my suspicion is that the reason there's no easy-to-find appelate record is that either nobody bothers trying to pierce it (that is, its a losing battle) OR its been tried and lost on summary judgement at a very early stage. The latter is almost as good as the former - filing a motion for a summary judgement (if you get it!) is pretty cheap as lawyering and playing in courts go......

There are quite a few reasons why there is little court record regarding accidents involved with open land and sporting activity.

The first is the Sportsman Act and its limitation of liability. The second is the $200k cap on all suits levied against the state. Third, Florida courts have been very reluctant to award high damages that may affect the states leading bread and butter revenue getter RECREATION. Lastly, Florida strong liability release history.

From another perspective plaintiffs attorneys make more $$$ much faster from twisted ankles and hurt backs from trip and falls in supermarkets and malls.

/K