Youth Indemnity Release

We had a situation at our regatta last weekend that sparked a conversation during our post regatta debrief that identified an issue the Indemnity Release we use and the fact that it cannot be applied to minors. Fortunately in our little sailing circle we have someone that works for the Parks and Rec department and is familiar with the Indemnity Release requirements for minors to participate in potentially dangerous events. I've attached the Indemnity Release we plan to use for future events.

The question that we haven't been able to get a clear answer for is when the conditions become challenging who makes the call for the youth teams to stay on the beach or not? The parent, OA... who? This is a problem that is new to our regatta and to be quite honest it is a good one to have. Is there a standard protocol? With all the youth programs out there we can't be the first ones to ask this question.

The attachment looks OK; use of the words "indemnity," "indemnify," or "hold harmless," not so much.

I'm not a lawyer, but US Sailing has a bunch, which is why there is a prescription (RRS 82) stating that those terms (and intent) should not be used.

Waivers are OK, and this should be a very helpful link for you:

http://raceadmin.ussailing.org/Page1165.aspx

Mike

Minors (under the age of 18) cannot legally execute a contract (which is what that is - an agreement between the parties). Their parent / legal guardian must do so.

Indemnification / hold harmless agreements are not allowed under US Sailing prescriptions. By indemnifying a party, you agree to reimburse their expenses in the event of a suit for damages. For example, someone at the event gets drunk, falls off a dock and drowns. Their family sues the organizer. If you signed an indemnification agreement, the organizer can then come after you to help recover its costs - even if they win! (Lawyers ain't cheap.)

That's why you should never sign anything that has the words "indemnify" or "hold harmless". Your own liability insurance may not cover it.

As for the "when to race" component of your question, it comes down to the judgement of the OA and the PRO. The PRO runs races as directed by the OA (RRS 90.1). When kids are involved, it is much better to err on the side of caution.

I reviewed your link before I made the post, it does not address the issue of minors. The text for the attached doc comes directly from the FL Statute there will be no changes. I'm looking for feedback for the question presented, who makes the call for youth sailors? Is there a standard protocol? What do other youth programs do around the country when the situation is presented?

Dave, This is not an indemnity release. Its more of a hold harmless. An indemnity makes whole someone else that has been injured due to your negligence. The club should require all racers to sign a tender defense, indemnity and additional insured agreement to protect their interest. As to the question to coverage, unless excluded under section 2 of the Home Owners policy, each kid is protected by his parent's policy. However, several polices have excluded some sail boat racing. ( talk to Stank on that one ), which would nullify coverage for liability. The problem here, is that Florida is a comparative negligence state, which means even if the parents allow the kids to race in windy or dangerous conditions, liability can also be attirbuted back to the OA for allowing the race to continue.

Forrest
I-20

Dave...in reading your second post be careful for what you ask. Are you inquiring as to first party damages...( bodily injury to the child ) or third party damages ( injury or damage to somoeone else and or property ) each state has their own negligence doctrine, and releases and race decisions are based on those doctrines. What might work in North Carolina wouldn't here because of the liabilites for injury and damage as equated by their statue doctrine.

Thank you Forrest, I kind of figured this problem would be bit more complicated to address.

I agree with MIcreek's analysis.... each state has unique laws that govern this set of liability issues for juniors. I think you are wise to just copy the states paperwork.

Who makes the call and what is the basis for the call is complicated in the case of a regatta with adult and junior teams competing in the same class. In general this is a question that you might not like the answer. I raised your very issue with the US championships which now has no age limit (unlike other championship events) and quickly closed the lid on this box because I don't predict a good outcome.

The OA is running one race, if they allow entries for junior teams then IMO you have raised the bar to wind and conditions that the PRO would use for a junior regatta. I don't believe you can send some but not all competitors in.

On the other hand, if the OA is running a junior and adult class, I believe the PRO could send the junior class in at their discretion. I see this issue as similar to the PRO running a race for monohull keel boats using the PHRF Saftey standards and a Beach Cat. These are apple and oranges and unless the PRO has lots of experience.... he would be unprepared to make this call or even expect that he should consider the issue.

I believe the pragmatic answer is for the PRO or their representative to have a heart to heart with the junior teams and ask them to consider sitting this one out if it becomes an issue. It is a protest and appeal waiting to happen tho!

As an OA.... I have always viewed the issue as one where the adults accept the lower wind standards for the good of the sport (eg... including the up and coming junior teams). The PRO has to manage the event and if they pull the plug... they would be wise to not fully explain their reasoning... afterall... it is the OA who has accepted junior entries.

One way to handle this is to enter the junior teams into their own class and then allow them to be scored in the adult class as a bonus. If the conditions warrant... the junior class is sent in .... They just take a DNS for the adult regatta.

As always... YMMV.

Mark, unfortunately I have to agree which to put bluntly sucks, and it will be the kids that will be the most disappointed. To drive this point home, last weekend 50% of the fleet stayed on the beach on Sunday and of the boats that sailed 50% where either youth teams or had a youth onboard.

Dave, It does stink, but in the long run those same parents that complain that they drove so far and jr doesn't get to sail, are the first ones to the attorney's office if one of them is hurt. The ole days of bumps/brusies and laughing and shaking them off are over. Its all about business and money, and with things tight, the lawyers are always looking for good cases involving kids. I think the courts would hold an injury to adults to a lesser degree arguing assumption of risk and legal standing. Where as a child isn't held to the same standards and aren't recognized to posse the knowledge and wisdom to understand the ramifications and outcome of their actions. Not being experienced in either a OA or PRO position, I'm not sure how on the NOR a disclaimer and or notice, of the right to ground minors of a fleet if the weather conditions meet a predetermined level would go over.

I would also pose this question to the regatta liability insurance carrier directly, as they'll be the ones sitting at the table with you.

And I'm sure it's just me, but putting a swim noodle around the boom seems to help a little when that thing comes after my head during a gybe.

As I get fatter and slower, it seems that boom is always closer to the trampoline than I remember...

One happy note here...

The PRO does not get in trouble simply by running a high wind event. The OA and the PRO have to make a mistake to get some portion of the liability. (that is what your on the water insurance policy for race management covers anyway).

This is where safety guidelines can bite you... If courts and juries view guidelines for catamaran racing as a standard... and your event does not meet the standard... It would be ugly.
I don't know of any cases where this has been tested tho.

So for adult regattas... you have mark boats on the course... You never have safety boats out there.

With juniors out there.. you have a very different situation and I have not run one of those at this level of organization. My hunch is the guidelines get elevated to standards.... (that seems to be the case for the upcoming Annapolis Yacht club JO's and Hobie 16 Jr North Americans)

.... As I said... for the good of the sport... the adults give some things up to include the juniors at the regattas.

Mark, thanks. However, once you take a guideline and use it, it now is a standard. So if you were to use safety boats for the jrs., and the adults only have mark boats, the jury in a wrongful death and or injury case for an adult will look at the jrs and say why not? So then case law is established and new standards are now in place. The bigger question then becomes at what point does the duty end and or owed?

I know I did not want to open pandora's box...
There is a reason that juniors and adult events are separated.
If the OA accepts junior entries... the PRO probably should have an idea of how to handle the issues.

Things like checking off starters and boats at mark roundings to keep tabs on the ducklings would be due diligence. Where does duty end.... Its tough to get a strait answer on that one.

I do know that NOBODY wants to be on point answering these questions.

Mark,
You are correct that no one wants to be put on point, but does this not now go full circle and back to the question Dave had in the beginning? He wanted to know who should be calling the shots? Sticking ones head in the sand and hoping it won't happen is a little crazy. I mean, why not have meaningful conversation and approach it with experts and people that deal with these on a weekly basis thereby establishing, and making decisions? Either they are made now or forced later....at someone's expense. Heck of a way to learn a lesson!
The Association makes and is in charge of all kinds of rules for your boats, racing, and standards, but they can't agree on to race and or not race? Surely, there have been enough injuries and accidents to conclude a basic set of guidelines in which to deduct a standard for races to be run in. I mean at the very least, what kind of exposure is the OA and PRO being subjected to because of the failure of basic guidelines and standards. Do not the members deserve better from the Association?

Dave, if you saw the US Sailing link before you posted, why did you use the “Indemnity” in your post???
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This will help with your Youth-specific questions:

Sail Newport is arguably a leader with this. Here is the NOR for an upcoming Youth event, pay attention to sections 5.4, 12.4 and 19 here: http://www.sailnewport.org/LiteratureRetrieve.aspx?ID=130549

Going through the online registration process (https://sailnewport.worldsecuresystems.com/regattas/youthchallengeregistration.html) gets you to the actual waiver:

I am the parent or legal guardian of the above listed minor and I acknowledge and accept and authorize the following: MEDICAL AUTHORIZATION Such medical or dental treatment services or care which are necessary or appropriate for my child, including the selection of medical personnel and facilities and transportation or transfer of my child to such facilities and in connection with such treatment, services and/or care, to authorize and consent in my name and on my behalf to such emergency or necessary surgery, diagnostic or corrective, as they may determine to be necessary for the life, health or well being of my child, after reasonable consultation with duly licensed physicians, surgeons and /or dentists. It is understood that reasonable effort shall be made to contact me prior to rendering treatment of my child but that any of the above treatment will not be withheld if I cannot be reached. PHOTOGRAPHIC WAIVER Furthermore, I understand that by my child participating in Sail Newport events, I automatically grant to the Organizing Authority and its sponsors the right in perpetuity to make, use and show, from time to time at their discretion, any motion pictures and live, taped or filmed television and other reproductions of him or her or them during the period of the competition without compensation. WAIVER OF LIABILITY AND ACKNOWLEDGMENT OF ASSUMPTION OF THE RISK I also acknowledge that my child intends to participate as a youth competitor in a 2012 Sail Newport Regatta. I specifically assert that the minor competitor will comply with the RRS of Sailing and rules and regulations of the event. I will make certain that my child is provided with a Coast Guard approved life jacket and will wear it at all times while on the docks or on the water. I am aware that participation in a sailing event presents the risk of serious injury and even death. I acknowledge that the risks exist and assume said risks for my child with respect to practicing or participating in a Sail Newport sailing event either on the water, on the docks or on shore. In accordance with section 7-6-22 of the Rhode Island General Laws, entitled “EXEMPTION FROM LIABILITY TO PARTICIPATE IN ATHLETIC SPORTS EVENTS," I hereby release Sail Newport, Inc., its officers, directors, agents, trustees, servants, volunteers, sponsors, employees and the State of R.I .of any liability for bodily injury to my child while he or she is participating for any contest or exhibition of an athletic or sports nature held by Sail Newport Inc., and hereby acknowledge and assume the risk of any bodily injury to him or her while participating in or practicing for any Sail Newport Inc., contest or exhibition either on the water or on shore during this Sail Newport event. RI GENERAL LAWS OF RI SECTION, 7-6-9 Exemption from Liability A) No person serving without compensation as a volunteer, director, officer or trustee of a non-profit corporation, including a corporation qualified as a tax-exempt corporation under 501(c) of the United States Internal Revenue Code [26 U.S.C. 501(c)], or of an unincorporated nonprofit organization or an unincorporated public charitable institution qualified as a tax exempt organization under section 501(c) of the United States Internal Revenue Code, shall be liable to any person based solely on his or her conduct in the execution of such office or duty unless the conduct of such director, officer, trustee, or volunteer with respect to the person asserting such liability constituted malicious, willful or wanton misconduct. As used in this section, "compensation" does not include a per diem or per meeting allowance, health insurance benefits or reimbursement for out of pocket costs and expenses incurred in such service. Nothing herein shall be construed to exempt a volunteer from liability based upon his or her ownership and/or operation of a motor vehicle. (B) Officers, directors, agents, servants, volunteers, and employees of a corporation shall not be liable for bodily injury to any person incurred while such person is practicing for, or participating in, any contest or exhibition of an athletic or sports nature sponsored by the corporation; provided such person has, or in the case of a minor, a parent or guardian of such minor has, signed a written waiver of liability of the corporation and acknowledgment of assumption of risk with respect to such practicing for, or participating in, any contest or exhibition of an athletic or sports nature sponsored by the corporation. I understand that by completing this form I am creating a legally binding document and agree to be bound by the laws of R.I. where my child will participate in a Sail Newport event. Please consult legal advice for further clarification. Do not proceed with this form if you are not in agreement with its terms.

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As a point of reference to your OA/PRO/parents question, I have been the PRO for this regatta with 25-30 knot winds. One bad wave would completely swamp and stop the Optis cold. After lots of discussion with the OA (not their first rodeo, either), we decided that these were experienced kids, and we had tons of support, and we should run races.

We had copious safety boats, were taking mark roundings, and allowing plenty of time between races to make sure we had full accountability of all sailors between races (many were dropping their sails and tying up to coach boats).

This should make everyone here relax a bit: I have never had so many people (especially coaches and parents) thank me at any event, ever. They were so happy to have been “allowed” to sail in those conditions, especially since many had traveled, spent lots of money, and are not normally given the opportunity to race in those conditions. Some of these kids go on to Team Trials, NAs, Worlds, etc. and needed the practice.
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The ultimate answer to your last question is the same for Youth, Adult or open (adult and youth) events: The OA and PRO decide if conditions warrant running a race for the majority of the fleet. It is up to each individual sailor (in the case of Youth, their parent/guardian) as to whether or not they should participate.

This isn't rocket surgery, even for open (adult and youth) fleets. I've been to plenty of Hobie regattas with kids in the adult fleet. Their parents are there, and they work it out amongst themselves about whether or not to race. As you know, we usually have very few power boat resources at cat regattas, and the sailors figure that out on their own.
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Better?

Mike

MI You make an excellent point. I tried to do this years ago in trying to understand what the hell my club was buying.

What you get back from this inquiry is of questionable value OR simply too expensive to implement.

When you ask lawyers... you get the answer... its about case law and this is not clear.... what state are you talking about?
Useless for this purpose!

When you ask the insurance company underwriter, their advice is to do nothing to undercut individual responsibility of the skipper. They point to the Chi mac race for guidance and principals. Chi Mac controls entry to the race... Oh, and ... you should purchase on the beach coverage for your liquor and docking liability which are bigger issues then sailboat racing.

When you ask... how many RC's have been involved in cases... the answers get muddy because settlements tend to be hidden.

PU has an excellent "how to run a regatta" manual. He makes specific statements about numbers of mark boats, safety/chase boats, gear equipment etc. If we adopted these as standards... events would be impossible to run for many clubs or a lot more expensive. So... we in fact DO stick our heads in the sand and ignore PU's guidelines. Of course we wish we had the resources to follow his guidelines.

One thing I point out though is that PU has a huge amount of international experience and these guidelines that he puts out there are actually mandated by many of the overseas sailing federations and they have very different legal regulations. His guidelines are a real gold standard.

The Annapolis area suffered a tragic death of a young sailor in a 420. A full on US Sailing inquiry followed. Best practices were noted. The club did a good job all the way through. The insurance companies required an in water 2 hour safety program for all of the 420 sailors. Essentially, the insurance companies are telling us what to do here with juniors.

Bottom line... trying to get some firm policy from somebody you think has knowledge is tough. The insurance agents try to manage this issue by creating liability policies that give you broad coverage and a lawyer. Details are tough to come by... When you mix adults and juniors... see pandora and don't touch her box again.

So... In principal fantastic... but my experience was frustrating.

Here is what I point people to for a start.
http://crac.sailregattas.com/_/crac/ui/Index.aspx?tabid=332

Its a exposition by the agent/underwriter for one of the regatta liability companies. He is now dealing with one of the lawsuits from the west coast tragedies.

There you go being all risk-managery...

Perhaps peering over the fence to other sports may assist us in determining a prudent way forward. Are the rules, procedures, oversight and organization the same for youth football as collegiate or pro? How about baseball? Soccer?

I would argue that there are differences in these sports from their adult counterparts. Safety equipment and bans on certain types of behaviors (slide tackle in youth soccer? head tackle in football?).

If this is accurate, then it would seem obvious that youth sailing may have additional constraints placed on it to reduce potential risk of harm to the yutes. Would this set a precedent? Most likely. Would future events be held to the same standard of care? Sure. Is this a bad thing?

'Merica is indeed a litigious society, and we sure don't want to accept responsibility for anything. So that leaves the OA and PRO the arduous task of putting it in attendees' face that "we're going to do the best we can, despite your second guessing us, but you still have to recognize we don't control everything. We can't prevent you or your offspring from being stupid, but we will do our best to conduct a safe and enjoyable event."

Cover all the foreseeable risk with good planning and execution. Speak with your insurer to discuss how you handle the rest.

Crap, Mark, you gotta throw alcohol in the mix? Jeeze, why don't you throw in a few predators, too!
And I guess it would be uselesss to have Marlboro sponsor the youth event?

Dealing with minors is worse than Pandora's Box.

And it looks like we have a precedent already established and likely to be used heavily by the prosecution

predators??

jeez... I forgot to include that photo waiver thingy one year... published some sailing shots of girls racing.... Boy did I hear it from the moms.... they were off the web instantly.

The issue here is the MIXed events... Mike makes the same argument... a quiet conversation usually sorts everything out.

Yeah, don't be posting pics of minors without written parental consent. Kind of like poking a momma bear

I think one point that needs to be stressed with the issue of the minors at the regattas was the the minors at the regatta in question were not accompanied by a parent,guardian, or coach. This is the reason for the big question of who makes the call about them sailing.

Jay,

Yeah...yeah...yeah.....it's a lot easier to brain storm and make plans and take precautions now then having to defend your lack of planning in court. Any attempt is better than no attempt. Mark speaks of cost....quite true, but nothing compared to the cost of defense and associated discovery. Of course dealing with kids, we won't even get into any type or award and or punitive issues for doing nothing!

Karl,
That's a huge issue of dumping kids and leaving. Let's keep it simple and they get stung by a Honeybee......how do you handle that? I mean brainstorming is great and what ifs. These discussions just open the eyes of those who have exposure here to consider in the future. Its to bad its come to this, but believe me.....dealing in litigation all day, I see the issues would have been different if just some planning and organization in this area was attempted. Credit for Dave to raise the issue.

To be fair, the kids were not exactly "dumped". Both were at least 16 years old, one was sailing with another youth who was there with his father, and the other, at 16, is more mature and a better sailor than most of us will ever hope to be.

True I'm sure, but it doesn't change their legal status.

FWIW, isn't USS making the big push toward youth sailing? If so, where do they fit in? Congressional mandate and all that...

And, I hate to be a ghoul but we just lost that young girl last summer. Surely USS has a position.

On page one, it alludes to "reasonable care". How does one define that? Reasonable care by whom?

If it's nasty and the PRO decides to run a race with the ADULTS, what can you do to stop the youth sailors from going out and sailing besides not scoring them. What if they win? What if they get tangled in a downwind gate and someone gets hurt ?

Also on page one, perhaps replace "Natural" guardian with "legal" guardian? But I'm not an attorney...

[quote=waterbug_wpbAlso on page one, perhaps replace "Natural" guardian with "legal" guardian? But I'm not an attorney... [/quote]

You can't do that in FL, the statute is very specific about exactly what the waiver must say and who is permitted to sign it. Only a "natural" guardian (defined as the child's biological mother or father or legallaly adoptive parents) may sign a waiver on behalf of a minor child.

At some events in the past, Sail Newport has stated that each child must be accompanied by an adult throughout the regatta (some go on the water, others stay ashore, depending if they bring their own boat).

I didn't see it mentioned for this event, so I didn't include it.

They've also stopped doing check-in / check-out tags locally (all around NBYA, actually). I've seen some nasty penalties come from not turning in your tag, well deserved after volunteers spend several hours trying to call your emergency contact to find out if you're accounted for.

Mike

ha ... the upcoming JO's/Hobie 16 NAs are to use this scanning system this July. I get to shoot each kid with the scanner gun that comes off the water. (I have also demanded a water pistol). ... I have no idea if this will work.... hearing that newport dumped the tag system... I hope the scanner will be better.

Mark,

Can you dig up a copy of the form parents must sign to enter their child in the AYC Jr Oly? I am trying to get the one we use at PYC for our festival. Perhaps a comparison of these documents might help our percerptions gain some traction. I'll ask again tonight - made a note - B

So a foster parent falls under this category? Good to know ya'll have checked this out in detail. Despite the head-in-the-sand comments, I feel this has potentially huge ramifications not the least of which would be devastatingly bad press.

Sounds like the rebel-catsailing community is being assimilated....

The foster parent issue is one that is still being worked out at the State level. Apprently our ifidently wise legislators failed to take that into account when they wrote the statute. The letter of the law says, no, foster parents cannot sign.

but back to other topics, I wonder if youth and non-youth should be combined (same course, regatta, etc) if for no other reason than this "reasonable standard of care" is probably different for both groups.

Non-youths may be able to agree to race in conditions or on a course with less support than a similar youth group...?

I just returned home from a Jr Oly planning meeting and must refer to Matt's reminder that US Sailing has created a waiver form that is applicable for sanctioned events featuring youth sailors. Our yacht club has a maritime lawyer that keeps our paper trail in focus. About the only thing we better never do in an NoR or SIs is require competitors to wear a fifty pound weight vest.

The real bottom line is that the PRO better have a quality safety plan in effect so that the competitors will not be shortchanged due to a lack of race track resources. Mark set boats performing rescues are no longer mark set boats>>> Quality angels will aid in decision making.

All well and good when the OA gets it, and is willing/able to supply the resources.

The real problems come when the OA thinks they know more than the class or PRO ("we don't need all these power boats, nothing has ever gone wrong here before")...

Said another way, the saftey plan is a joint responsibility of the OA and RC.

Mike

Yep, and when something blows up just one time, they will get a quick expensive lesson real fast!

Hunter Thompson said you don't know you are on the edge until you've passed it. We have been lucky. Last year our on the water response team prevented three visits to the YC by para - medics. This time of year dehydration is a real enemy along with booms and turtled cats with a crewmember trapped under the boat. Her dad cut her out with a knife.

Racing should be conducted for sailors by sailors.