You're an Idiot

In response to a skipper who requires his crew to sign waivers before boarding his boat:

Obviously, there's no document that you can draw up that will protect you if you're high on angel dust and stab your trimmer in the shin with a marlinspike. A carefully crafted "express assumption of risk" statement won't help you if you're 17 beers deep at the helm of your J/105 and run into a well-lit police vehicle. On land.

That said, the reality of the situation is that, Yes, having your crew or guests sign a properly drafted document could very well limit your liability as an owner, including your liability for negligent conduct, but only in the rarest of circumstances. In the end, I see the limited protective value as such that it is certainly not worth the expense/effort/prick factor to have one drafted & implemented, and I wouldn't advise my clients to have one. And, If one were presented to me by some officious boat owner, I'd probably offer to show him how to self-adminster a colo-rectal examination with a couple of wadded up pieces of paper.

The document in question is called an "Express Assumption of Risk." The doctrine of assumption of risk basically says that when a person knowingly and voluntarily chooses to engage in course of conduct (i.e. sailing) that carries a reasonably forseeable risk of harm, and he or she suffers the type of harm, the agent causing that harm shall not be responsible, even if the agent was in fact negligent. In states that recognize it, it is an "absolute bar" to recovery, meaning that if it applies, the plaintiff can recover nothing. Sounds like a great idea--couldn't hurt, anyways, right?

Most courts generally uphold express assumptions of risk when the Plaintiff's conduct is clearly voluntary and the risks are reasonably forseeable, like engaging in dangerous sports like sailing. So, chances are, if your bowman accidentally beans your trimmer with the spin pole during a gybe, and your trimmer sues either you or your bowman, your trimmer won't be able to recover squat. But, the thing to understand is that the above is likely the case even if he hasn't signed anything. A signed express assumption of risk is excellent evidence that the Plaintiff knew the risks, but it's not a slam dunk.

And, contrary to what almost everyone thinks--it's not without risk. A poorly drafted or overreaching document may be disregarded alltogether by the court. The other risk is practical; if the case goes to trial, it will end up making you look like a giant rectum to a jury that may have otherwise sided with the innocent owner.

The doctrine has been narrowed in recent years. In an effort to avoid precluding claims, courts have defined "inherent risks" very narrowly, leading to some dumb rules: apparently, getting hit by a golf ball is not an "inherent risk" of playing golf. And, "gross negligence," a mushy concept, and willful/wanton conduct are always outside the scope of forseeable risk, meaning that you can recover if the conduct transcends garden variety negligence, even with a signed agreement.

Here's some other news: If you get one, everyone on your boat will hate you, assuming they do not already. Ain't worth it, unless, like my skipper, you couldn't give two shits.