Falmouth

[OutlawCaver]

Here is a simplified Sportman's Act:

Neither I, my heirs nor the executors of my estate shall NEVER/EVER have ANY legal recourse for JACK due to my access to this property. Therefore, the owners &/or leasees of this property are hereby not liable for JACK, FOREVER due to my access to this property.


Signed: _____________________

[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

[Webmaster]

Tennessee has a similar landowner liability law, in that as long as you do not receive payment there is almost no way you can be successfully sued. Unfortunately as was touched on above, it does not prevent you from being sued.

The potential legal bills from even a miserably unsuccessful attempt, not even to mention the time and aggravation involved still serve as a reason to some landowners to keep people off their land.

There was an incident in Knoxville a few years back where a 10 yo boy fell about 70' into the entrance sink of a cave and died. The case was successfully defended though I believe they tried to use the 'attractive nuisance' approach (like not having a fence around a pool). The NSS landowner defense fund provided financial support, and a local caver from Nashville who is a lawyer also donated a good deal of time.

[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.

Unfortunately as was touched on above, it does not prevent you from being sued.

What did Shakespeare say?

"First, we kill all the lawyers."

Russell

[traveler]

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

See the CDS site for the various rules for diving there. Surface conditions are more challenging as you say... the path has a couple erosion points now, but when it's dry it's not so bad. When it rains, though, you'd probably wish you were somewhere else.

The yellow poly tied to the float (gas can) heads upstream. The heavy white nylon line tied to the wall heads downstream. There's also a short length of cave line heading from the stairs to the habitat.

Not far downstream from Cathedral is a T leading to the offset sink Jewel. There used to be a big mess of lines here, but we cut it down to just the one. Honestly, it would probably be better as a jump than a T since Jewel is not a viable exit... as it stands, though, you should obviously drop a personal marker on the exit side as you pass the T.

Total length of the traverse from Cathedral to Aquarius is 1711'. Max depth in this section is around 140', average around 110-120'. Helium should be strongly encouraged to mitigate narcosis here. Viz is usually bad to start with, flow is usually low, and the potential for silting is very high -- you'll want to stay sharp.

It's only another 857' from Aquarius to Falmouth, so with about a mile round-trip you can peek out into the forbidden basin before heading back to Cathedral.

[DeWayne]

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.

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.

[traveler]

One additional point... heading downstream from Cathedral is a siphon dive, and requires additional conservatism in the gas management department.

[jpdiver]

One additional point... heading downstream from Cathedral is a siphon dive, and requires additional conservatism in the gas management department.

Understand. I plan to do it on a rebreather. Is Aquarius an exit point in a bailout situation or too small? Also- is upstream a good dive?

[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.

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.

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.