That is a great idea Steve! I'd love to hear what you find out.
| Steve Grisetti wrote: |
| Due to the potential consequences of a blade coming apart, even if the probability is low, it seems to me that it would be wise to do some kind of non-destructive evaluation beforehand. I don't care who made the blade - Nobody is perfect. There is a liability question here, too. If we have some attorneys watching this thread, they might care to comment on that.
|
I'm just one of the attorneys who may be following the thread, and others may provide a different perspective, but here's my own summary of the potential liability for damages if someone is hurt by your sword:
A quick search did not turn up any reported American appellate decisions discussing the extent of potential civil liability for accidents involving swords. The cases are almost all criminal prosecutions for unlawful possession.
A fully functional sword, rather than a decorative wall hanger, would likely be subject to the same civil liability rules as a firearm. Most states treat accidents involving weapons as strict liability cases - that is, the weapon's owner essentially has no defense available to him if somebody gets hurt. This is the rule generally applicable to firearms accidents, and the general principles of the legal decisions are stated in terms that would make them apply to any deadly weapon. When the weapon is borrowed, the wielder is treated the same as the owner.
In those states where negligence must be proven to impose liability for a weapons-related accident, the fact that swords sometimes fail, and there is no way to reliably predict which ones will fail at what time, probably means that you will be held responsible for accidents that result from intentionally subjecting the sword to stress. Because few judges are sword collectors, don't assume that they will save you from the scrutiny of a jury if someone gets hurt.
Always take the trouble to buy liability insurance against accidents. Homeowners probably have some coverage under the policy covering their houses for non-business related accidents involving their swords, but those of you who rent may not.
Makes one want to seriously rethink these cutting party get-togethers, 'eh !
Okay, boys ..... throw a few bucks into the liability insurance pot, now !
;-) Mac
Okay, boys ..... throw a few bucks into the liability insurance pot, now !
;-) Mac
| Thomas McDonald wrote: |
| Makes one want to seriously rethink these cutting party get-togethers, 'eh !
Okay, boys ..... throw a few bucks into the liability insurance pot, now ! ;-) Mac |
Yes indeed! Also rethink safety procedures in general. I think I recall Matt or someone saying the blade went flying something like 40 feet. That's well within the range of people taking the pictures of all these cutting parties I've seen and some people were taking those pictures obviously from in front of the guy swinging the blade so that they could show the target being cut as well. Totally scary.
| Thomas McDonald wrote: |
| Makes one want to seriously rethink these cutting party get-togethers, 'eh !
Okay, boys ..... throw a few bucks into the liability insurance pot, now ! ;-) Mac |
For my cutting party, I put a big disclaimer in an email, stating that neither me or my wife or Albion were responsible for any personal or property damage that may have happened to guests at the party. Nate Bell actually had a nice waiver people had to sign.
| Steve Fabert wrote: | ||
A quick search did not turn up any reported American appellate decisions discussing the extent of potential civil liability for accidents involving swords. The cases are almost all criminal prosecutions for unlawful possession. |
I just spent about 20 minutes playing with the all cases database on westlaw (thank goodness for free access for law students) and turned up nothing about sword accidents, broken swords, etc, either state or federal.
Not surprising really.
I did find several stolen swords, and criminal use, but nothing more.
If we're looking for sword failures, would we be better looking for firearm failures as analogous cases? eg, at a firing range, someones weapon fails catastrophically, blowing out the side of the chamber or something, and injures a third party with shrapnel - and then see where the liability lies with regard to the injury. I'm thinking there could be some upstream product liability or something, on defective manufacture/materials if it could be proven.
think thats worth looking into? if so, I'll go spend some more of the schools money
| Chad Arnow wrote: | ||
For my cutting party, I put a big disclaimer in an email, stating that neither me or my wife or Albion were responsible for any personal or property damage that may have happened to guests at the party. Nate Bell actually had a nice waiver people had to sign. |
I wonder if either of those measures would be enough in the face of litigation? I think that they are an outstanding idea of course and certainly better then nothing. Is Nate a lawyer or did he have one draw his up?
| Chris Holzman wrote: | ||||
I just spent about 20 minutes playing with the all cases database on westlaw (thank goodness for free access for law students) and turned up nothing about sword accidents, broken swords, etc, either state or federal. Not surprising really. I did find several stolen swords, and criminal use, but nothing more. If we're looking for sword failures, would we be better looking for firearm failures as analogous cases? eg, at a firing range, someones weapon fails catastrophically, blowing out the side of the chamber or something, and injures a third party with shrapnel - and then see where the liability lies with regard to the injury. I'm thinking there could be some upstream product liability or something, on defective manufacture/materials if it could be proven. think thats worth looking into? if so, I'll go spend some more of the schools money |
Chris if you've got the time I think that would be a fantastic idea! It might give us a little more knowledge on the subject.
| Russ Ellis wrote: |
|
Chris if you've got the time I think that would be a fantastic idea! It might give us a little more knowledge on the subject. |
Ok... it looks like in the firearms industy, there is some strict liability for defective products - you have to show that the firearm was in a defective condition, and that the defective condition made it unreasonably dangerous, and the injury must occur during the intended/reasonably forseeable use of the product - and the defect must be the proximate cause of the injury occuring. regarding the defect, it "is a condition resulting from the manufacturing process that prevents a firearm from satisfying the manufacturer's standards for the firearm."
The caselaw i've found thus far hasn't dealt with a third party, but rather with the owner being injured, say, when dropping a loaded gun and it discharges, or the gun exploding and injuring him.
If I had to guess, in a situation where a third party was injuried, probably the operator and the manufacturer would get joined in the suit as defendants, or if suing the manufacturer only, impled by the defendant, or something of the sort..
then again, im just an (almost) 2nd year law student, so I don't know anything yet... so please, nobody take this as any sort of legal advice - its just a set of guesses.
reference the waivers, I've had a lot of faculty tell me that with fencing safety/health waivers, I should treat them as informed consent, rather than waivers, because they're probably not going to stand up, if the signing of the waiver is required to participate in the activity - at least as far as negligence and such goes..
Maybe Steve will see this and chime in soon.
Thanks for taking the time Chris, your educated guesses are better then what I had.
I kind of figured that was the case about the waivers... seems like I was told once that any decent attorney could blow the ones for karate studios and such out of the water and I'm sure that would also apply here.
I kind of figured that was the case about the waivers... seems like I was told once that any decent attorney could blow the ones for karate studios and such out of the water and I'm sure that would also apply here.
It is pretty much common knowledge in the martial arts "biz" that the waivers we have students sign are worth very little. An attorney friend of mine commented that about all they're good for is the person who claims they had no idea they might get hurt or some such silly thing like that. But I'll also say that over a long time I've been involved I've heard of absolutely zero claims ever made. Most who go and hurt themselves are either fully aware of the danger and never pursue anything. Absolute beginners who could be problematic usually don't last long enough to hurt themselves anyway.
But with swords and those sorts of issues... Yeah, it is a concern. In the past a large group on-line have been quite upset with how many on the traditional JSA side frequently seem to worry and grouse about the dangerous aspect of cutting. But that's because most have been around long enough to have seen accidents. And know that the bottom line, as this thread has pointed out, is that sh*t happens. And not just from pilot error either. Sometimes blades break. Sometimes blades that had no evidence whatsoever of having problems.
Or as I tell people at cutting demos... Stand back and stay aware. You'll rarely find me in the first row or not paying attention. ;)
But with swords and those sorts of issues... Yeah, it is a concern. In the past a large group on-line have been quite upset with how many on the traditional JSA side frequently seem to worry and grouse about the dangerous aspect of cutting. But that's because most have been around long enough to have seen accidents. And know that the bottom line, as this thread has pointed out, is that sh*t happens. And not just from pilot error either. Sometimes blades break. Sometimes blades that had no evidence whatsoever of having problems.
Or as I tell people at cutting demos... Stand back and stay aware. You'll rarely find me in the first row or not paying attention. ;)
| Chris Holzman wrote: |
|
If we're looking for sword failures, would we be better looking for firearm failures as analogous cases? eg, at a firing range, someones weapon fails catastrophically, blowing out the side of the chamber or something, and injures a third party with shrapnel - and then see where the liability lies with regard to the injury. I'm thinking there could be some upstream product liability or something, on defective manufacture/materials if it could be proven. think thats worth looking into? if so, I'll go spend some more of the schools money |
My comments apply solely to the buyer/owner/consumer of the weapon, not the seller or manufacturer. That was the concern I perceived being expressed in the earlier post. If you happen to be the person who is hit by a flying blade, you may care whether the sword's seller and manufacturer are liable. But if you are the guy left holding the broken sword stump, my answer applies.
My potential liability for an accidental discharge, or a catastrophic failure of a firearm, is no different than what I face if I mistakenly shoot a fellow hunter. The only question is the amount of my liability, not any realistic possibility of avoiding responsibility entirely.
There are times when you can limit liability to persons invited onto your land by having them sign a waiver, like the disclaimer you see on your ticket to the drag races. So it's a good idea to use waivers if you host a "cutting party". If you are on somebody else's property when your sword fails, that option won't apply.
Well, this begs the question -- does anyone have a waiver of this type they'd like to post on-line for reference?
| Russ Ellis wrote: |
| I wonder if either of those measures would be enough in the face of litigation? I think that they are an outstanding idea of course and certainly better then nothing. Is Nate a lawyer or did he have one draw his up? |
Nate is an attorney. I'm sure his would hold up better in court than mine. :)
| Steve Fabert wrote: |
|
My comments apply solely to the buyer/owner/consumer of the weapon, not the seller or manufacturer. That was the concern I perceived being expressed in the earlier post. If you happen to be the person who is hit by a flying blade, you may care whether the sword's seller and manufacturer are liable. But if you are the guy left holding the broken sword stump, my answer applies. My potential liability for an accidental discharge, or a catastrophic failure of a firearm, is no different than what I face if I mistakenly shoot a fellow hunter. The only question is the amount of my liability, not any realistic possibility of avoiding responsibility entirely. . |
Hmm.. yeah. I guess what I'm thinking is that in situations where these blades fail as a result of a manufacturer or material defect, during appropriate use, and you're the guy left holding the hilt, if someone gets hurt, do you have some legal claim that but for the defect, the breakage wouldn't have occured, and that without the breakage, the injury wouldn't have occured..
Also, what about someone in Mr. Ellis's shoes, who sells a sword second hand to someone, and it breaks? if it causes injury, is he clean and clear as long as he hasn't modified it or abused it in some way that would increase significantly the odds of it breaking? I'm gussing that the reasonable person would not be likely to know whether a blade is likely to be defective before he sells it.
Are the states using strict liability to avoid having to deal with very weak intent and proximate cause issues? 'sure, I swung/pulled the trigger, but it wasn't reasonably forseeable that the gun would explode/sword would break, and cause injury rather than firing the bullet/cutting the target, and I was using the sword/gun in for the purpose it was intended' this seems to me to be a rather tenuous link to intent..
I would think a person who was hit by such blade would be better off going after the manufacturer/seller, who should be doing Q/A on their products, and designing them properly, etc, than the sword wielder - especially as the manufacturer/seller is likely to have deeper pockets.
What about impleading the manufacturer for indemnification, because of their defect being the cause of the failure?
That said, liability insurance sounds more and more reaonsable...
| Chad Arnow wrote: |
|
Nate is an attorney. I'm sure his would hold up better in court than mine. :) |
Excellent, you don't think he has a copy lying about of his waiver that he could post do you? If it was drawn up by a real attorney it might be instructional for us to have a peek at what he believes is a good document. It also might point out some problem areas to those of us who might be tempted to create our own waivers of some sort. Personally I'm thinking putting up a baseball style backstop might be a good plan... :)
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