Calling FTE...private track liability concerns

downard254
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7/25/2015 6:04pm Edited Date/Time 2/8/2016 1:16am
I have layed out a natural terrain course in one of my fields, and being raised "Old School" I thought it would be nice if select others could come out and ride with my son and I. I was wondering if you could point me in a direction for a decent liability waiver to have others sign. It will not be open to the public, and I will not charge a penny to those I invite. Any other insight you may have would be greatly appreciated as I always find your posts very interesting reading. I have had a few business law classes when I was in college, and spent some time with lawyers with a few legal cases in contract law with out construction business. Just not sure how or where to go about researching case law or judgements on similar situations.
If you are busy like myself, and haven't got the time, I completely understand too.
Thanks in advance for any consideration.
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KTMShane699
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7/25/2015 6:09pm
A waiver is only as strong as the paper it's written on. In other words, when someone gets hurt the waiver becomes worthless. It covers injuries and such, right up until negligence comes in. What counts as negligence? That's up to a jury really. But got flashers? Were you sure the injured rider could handle the track? How did you know?

Tracks come with liability. I wouldn't have one without having a huge insurance policy, and probably an LLC to protect your personal assets.

It's not as simple as it sounds.

Shane
downard254
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7/25/2015 6:26pm
I'm under no impression that a waiver will keep you in the clear, sometimes it will, however, create an uphill battle. As I mentioned in my first post. It's not open to the public, it sole purpose was to have a place to ride. If I create an LLC, then I would absolutely have to charge a fee to riders. Kind of defeats the purpose of what I'm trying to do. I'm trying to find some information on private tracks and how liability pertains to these.
KTMShane699
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7/25/2015 6:44pm
You can charge $1.00 to cover the "fee." That LLC will limit access to your personal assets in the event things go wrong. Everyone says they won't sue...that lasts until insurance runs out and bills accumulate. Or when the injured person's loved ones feel the need to get compensation.

Any attorney is going to walk through a waiver. The best thing about a waiver is it might make someone think they don't have a case because they signed it.

I don't want to be discouraging, but as someone who may or may not have assets (I don't know you...but I'd guess you have some) you want to protect them. Rather have the entity be "Good Riding Times, LLC" rather than "John Smith" that gets sued. LLC protection is not absolute, but it'll offer way more protection than a waiver will.

I've ridden and gotten hurt at friends tracks (my leg that's currently healing was at a friends track and I'm out of work for six months). I wouldn't sue, and my family is okay financially. It doesn't mean everyone feels that way. Especially when family members and insurance companies get involved.

If you don't take the steps to protect yourself, why would anyone else? You have your own best interests in mind.

Shane
JustMX
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7/25/2015 8:02pm Edited Date/Time 7/25/2015 8:07pm
Shane, I promoted races for 15 years.

Not sure where you are getting the whole.bit about waivers only being as strong as the paper they are written on.

If.you are diligent, they are far from worthless.

Downard, laws.very a great deal from state to state, but what you might want to.check into is a.private club setup where riders buy a membership that in essence, would make.them a defendant in any litigation they try to bring.

Check with other facilities in your area and see what they recommend.

If the people riding are over 18 that simplifies a lot.of.things.

The Shop

WhipMeister
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7/25/2015 8:05pm
Having a properly executed release is 10000x better than not having one.
FreshTopEnd
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7/25/2015 10:05pm Edited Date/Time 7/25/2015 10:18pm
Waivers and releases are very useful, much better to have than not. Very protective in California law if done correctly. Very important to spell out clearly the risks the person is assuming, and include waiving claims based on negligent acts or omissions.

But every state law is different, I don't know Ohio's tort liability laws, and I am not admitted to practice in any other state than California. It's always good to work with a local lawyer who can put one together. Talking to your insurance guy is another lead, too; they will be all about limiting exposure as much as possible.

Good luck!
BobbyM
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7/25/2015 10:09pm
downard254 wrote:
I have layed out a natural terrain course in one of my fields, and being raised "Old School" I thought it would be nice if select...
I have layed out a natural terrain course in one of my fields, and being raised "Old School" I thought it would be nice if select others could come out and ride with my son and I. I was wondering if you could point me in a direction for a decent liability waiver to have others sign. It will not be open to the public, and I will not charge a penny to those I invite. Any other insight you may have would be greatly appreciated as I always find your posts very interesting reading. I have had a few business law classes when I was in college, and spent some time with lawyers with a few legal cases in contract law with out construction business. Just not sure how or where to go about researching case law or judgements on similar situations.
If you are busy like myself, and haven't got the time, I completely understand too.
Thanks in advance for any consideration.
Set up an LLC. FTE's rate is 300$ an hour. I only charge 250.
BobbyM
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7/25/2015 10:11pm
downard254 wrote:
I'm under no impression that a waiver will keep you in the clear, sometimes it will, however, create an uphill battle. As I mentioned in my...
I'm under no impression that a waiver will keep you in the clear, sometimes it will, however, create an uphill battle. As I mentioned in my first post. It's not open to the public, it sole purpose was to have a place to ride. If I create an LLC, then I would absolutely have to charge a fee to riders. Kind of defeats the purpose of what I'm trying to do. I'm trying to find some information on private tracks and how liability pertains to these.
One dollar to ride.
imoto34
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7/25/2015 10:16pm
downard254 wrote:
I have layed out a natural terrain course in one of my fields, and being raised "Old School" I thought it would be nice if select...
I have layed out a natural terrain course in one of my fields, and being raised "Old School" I thought it would be nice if select others could come out and ride with my son and I. I was wondering if you could point me in a direction for a decent liability waiver to have others sign. It will not be open to the public, and I will not charge a penny to those I invite. Any other insight you may have would be greatly appreciated as I always find your posts very interesting reading. I have had a few business law classes when I was in college, and spent some time with lawyers with a few legal cases in contract law with out construction business. Just not sure how or where to go about researching case law or judgements on similar situations.
If you are busy like myself, and haven't got the time, I completely understand too.
Thanks in advance for any consideration.
if you will pm me your email i will send a copy of my waivers. spent a load of money getting them right
downard254
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7/26/2015 4:43am
downard254 wrote:
I have layed out a natural terrain course in one of my fields, and being raised "Old School" I thought it would be nice if select...
I have layed out a natural terrain course in one of my fields, and being raised "Old School" I thought it would be nice if select others could come out and ride with my son and I. I was wondering if you could point me in a direction for a decent liability waiver to have others sign. It will not be open to the public, and I will not charge a penny to those I invite. Any other insight you may have would be greatly appreciated as I always find your posts very interesting reading. I have had a few business law classes when I was in college, and spent some time with lawyers with a few legal cases in contract law with out construction business. Just not sure how or where to go about researching case law or judgements on similar situations.
If you are busy like myself, and haven't got the time, I completely understand too.
Thanks in advance for any consideration.
BobbyM wrote:
Set up an LLC. FTE's rate is 300$ an hour. I only charge 250.
Man, the last thing I need is another business. My construction company is an S Corp, and it owns just about all of the equipment. I have a sand pit on the premises and I had to set it up as an LLC, and it pretty much owners the rest of my equipment. The LLC was a requirement of my insurance company to protect me personally for pit activity as my personal umbrella wouldn't cover me. So now I pay for three general liability policies, and three umbrella policies. Don't ask what the totals of all those policies are. I can tell you going through legal zoom to set up your LLC will run you close to $750-$1000 before it's all said and done.
The field the track is in is pretty much just an 85 acre farm. I rent the farmable ground out and the rest is just pasture. Personally, I don't own much. My bikes, law mowers, small tractor, and household items.
FreshTopEnd
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7/28/2015 7:53am Edited Date/Time 7/28/2015 7:55am
Well, if I understand correctly, you've got an ownership interest in land, so there's that to protect as well.

Part of the problem I have that I'm a litigator, so the sample I deal with is the "this deal looked so good and went so wrong crowd," so my view of what corners can be cut is pretty skewed toward dealing with those problems up front, no matter the pain, because it will be harder to deal with after the fact of a problem. Its a little like dressing for the crash; just count on that thing you don't want to happen happening, especially given that what you dint want to happen ~ someone falling and getting hurt ~ is inevitable.

I hear you on insurance, but the dirty little secret of this sport is that a tracks viability probably turns more of the health of its insurance portfolio than anything. It's simply impossible to conceive of tracks being self insured given the exposure with MX injuries. It's the flip side of riding without medical insurance.

I'll assume bob is right about what his hourly is, even if he's wrong about mine.
jeffro503
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7/28/2015 7:59am
FTE....wouldn't setting up an LLC work , but be a little spendy for a private track? It would then be considered a business wouldn't it and the insurance could get a little crazy on the money side of thing right? What Shane posted above ( BTW , I hope you're doing well Shane! ) sounds like a good idea.
FreshTopEnd
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7/28/2015 8:48am Edited Date/Time 7/28/2015 10:02am
I made no comment one way or the other on the LLC angle. Some states have simplified corporate forms that are easier to work with, but it depends on the states law, and so it is better to get someone local to sift through the best approach. Corporate structure is a tool to insulate assets from liability ( as long as the activity is adequately capitalized and/or insured), and the price to pay is more complexity in formalities that would be the care doing business as a sole proprietor.

Anyone who's read my yapping on it knows that I think it's folly not to identify all costs of doing an activity in order to determine how to properly run and price it. Part of knowing what to charge is what the customer will bear, but another part is actually knowing what the necessary expenses are. The stuff like insurance and care in crafting waivers and flaggers and grading, etc, all tend to fall into a category of "can I get away with not ...?" They all cost money, and it is hard to quantify what you save because the bad things that don't happen because of precautions cannot be counted, But what can be counted on is that bad things will happen at a motocross track, and anyone running a track thinking they can escape them is kidding himself. Imo it's better to price at the point the covers what is necessary to protect the track owner and run a sustainable operation. Guys that feel it's too expensive probably are the greatest risk points anyway.

Just my general opinions on the subject.
hellion
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7/28/2015 9:18am
FTE, thanks for taking the time to answer the above questions. I have a track on my land that is pretty damn awesome. My friends and I rode here quite a lot for about fifteen years. Then a friend a town away got sued by one of his friends who got hurt on his track. Even if he wins his lawsuit he will be severely hampered by having to pay his lawyers. So, with that happening I shut my track down until I can figure out a way to cover myself and my family. There are a few good suggestions here I will be looking into.....
downard254
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7/28/2015 4:49pm
OK, thinking outside the box, at first I thought of having my mining LLC just lease the track, but again, I'll have to acquire insurance, which would force me into a public track. Not what I'm trying to do here. The insurance costs alone would have the fee to ride just to cover the expense of the insurance so high that no one would want to ride it anyway.
I have been thinking though, what is the possibility of writing up a lease agreement that is for just one day. Is there a term limit on leases, or could the track be leased to one, or several people for a day through a lease agreement. If so, what would the liability risks be. Would I still need a secondary insurance policy.
Bear in mind, the idea here was just to allow a select few a place to ride. I do not claim to be a professional track builder, have no expertise in the area of track design or safety management. I'm not sure what the protocol is on liability towards an individual who knows no more than one who is riding on any given day.
I'm not an idiot, just trying to look from the outside in and break things down from a reasonable man standard.
downard254
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7/29/2015 4:54pm
imoto34 wrote:
if you will pm me your email i will send a copy of my waivers. spent a load of money getting them right
Did you receive my email. I PM'd you.
downard254
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8/2/2015 5:07am

Well, it looks like the best option for me now is the let my mining LLC lease the track area for $1 and get some really good waivers for liability release. I just started up this LLC in January, and it really has no possessions. The LLC does own an old John Deere loader, but that's it. If it's true that an LLC will protect the land owner, then that should at least be another protective roadblock for any potential personal lawsuits. I'm sure that a personal injury attorney will not stop at an LLC or good waiver to go after money, but the more road blocks I can throw up to deter it's potential, the better I'll be. At least that's what I'm hoping.
aaryn #234
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8/2/2015 6:27am
Read every post out of interest and curiosity.

Dam we live in a fucked up world!

Party A - I need a place to ride

Party B - I have land you can ride one

Part A - Thanks

Party B - No Worries

Party A - I fell over and hurt myself I am suing you

Party B - Sad
Trav138
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8/2/2015 10:31am
downard254 wrote:
Well, it looks like the best option for me now is the let my mining LLC lease the track area for $1 and get some really...

Well, it looks like the best option for me now is the let my mining LLC lease the track area for $1 and get some really good waivers for liability release. I just started up this LLC in January, and it really has no possessions. The LLC does own an old John Deere loader, but that's it. If it's true that an LLC will protect the land owner, then that should at least be another protective roadblock for any potential personal lawsuits. I'm sure that a personal injury attorney will not stop at an LLC or good waiver to go after money, but the more road blocks I can throw up to deter it's potential, the better I'll be. At least that's what I'm hoping.
i'm in the same situation as you, i have a farm with a track that i'm going to be improving this fall. It's no fun riding it by yourself all the time and i'm also trying to find a way to let friends ride while protecting myself and family.
lots of info in here and thanks for posting and keep us posted.
downard254
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8/2/2015 11:13am
This could become a very informative thread. And I very much appeciate the legal experts chiming in. I'm fortunate enough to have already set up an LLC for my small scale sand pit, now hopefully I can write up a legit lease agreement so that my LLC can lease the track for $1 or whatever makes it legal. I'm also fortunate that my LLC is an operation that doesn't really own much or have any net worth or value (so to speak). Now as long as the LLC will protect my property then I should at least be able to sleep at night if friends come over to ride.
I've edited the thread topic to try and draw more input.
KirkChandler
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8/2/2015 12:25pm
In California waivers do hold up in court as long as there is no negligence on the track/facility operators part, but that still doesn't mean you wont be sued and spend money in legal fees for discovery, depositions, and hearings before a judge rules the case has no merit or sends it to trial. There are ambulance chasers that go after these cases with the intent to probe for settlements, and there are health insurance companies that sue on the riders behalf to recoup their insurance payouts to the hospitals, doctors, ambulance companies.

A General Liability policy is recommended just for the piece of mind of knowing that you have an insurance companies attorney's on retainer for another deductible fee. But sometimes you get sued because you have the insurance policy and now have a partner in the lawsuit with deep pockets that will settle just to make it go away, so it's a catch 22.

It sucks that in this day and age you cant to be nice and let people ride your track without worrying that they will turn around and sue at the drop of a dirt bike.
rob162
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8/2/2015 2:36pm Edited Date/Time 8/2/2015 2:39pm
One thing we did for our private track was video questionnaires. I or another family member would read them 5 pages of questions.We had a lawyer draw the questions up. For Example is like if our track is ungroomed you understand that there is a severely elevated level of possibility of injury or death. After they answered each single question we would then ask. Do you insert name understand that you are solely responsible for any injuries and cost of injuries or death resulting from the use of our groomed and ungroomed track. We would ask them to state there skill level and past experience in (yrs) riding at the very beginning. we would then read them the waiver that had their state I'd copied on to it ask them in detail to explain there understanding of it and if they agreed to it and make them sign it then we would Notarize It. Sued one time we were In and out of court very quickly. They appealed the ruling judge felt all the evidence he needed was already available. No new evidence was being disclosed. We were done even quicker than the first time. I strongly recommend this. I'm just not sure how it works with kids though as until they are 18 the are typically considered to not have enough mental capacity to understand the consequences fully. Kinda like the kids that get hurt in football then sue because the parent waived there rights to sue but the child couldnt of fully grasp the long term consequences of a Injury and HAVE Won THE suit. Well hope this rambling post helps!
Jrewing
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8/2/2015 11:01pm
aaryn #234 wrote:
Read every post out of interest and curiosity. Dam we live in a fucked up world! Party A - I need a place to ride Party...
Read every post out of interest and curiosity.

Dam we live in a fucked up world!

Party A - I need a place to ride

Party B - I have land you can ride one

Part A - Thanks

Party B - No Worries

Party A - I fell over and hurt myself I am suing you

Party B - Sad
Damn straight Aaryn.. As an Aussie looking at this I hate my brother a little bit more.. He's a lawyer haha

kaptkaos
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2/3/2016 1:01pm
rob162 wrote:
One thing we did for our private track was video questionnaires. I or another family member would read them 5 pages of questions.We had a lawyer...
One thing we did for our private track was video questionnaires. I or another family member would read them 5 pages of questions.We had a lawyer draw the questions up. For Example is like if our track is ungroomed you understand that there is a severely elevated level of possibility of injury or death. After they answered each single question we would then ask. Do you insert name understand that you are solely responsible for any injuries and cost of injuries or death resulting from the use of our groomed and ungroomed track. We would ask them to state there skill level and past experience in (yrs) riding at the very beginning. we would then read them the waiver that had their state I'd copied on to it ask them in detail to explain there understanding of it and if they agreed to it and make them sign it then we would Notarize It. Sued one time we were In and out of court very quickly. They appealed the ruling judge felt all the evidence he needed was already available. No new evidence was being disclosed. We were done even quicker than the first time. I strongly recommend this. I'm just not sure how it works with kids though as until they are 18 the are typically considered to not have enough mental capacity to understand the consequences fully. Kinda like the kids that get hurt in football then sue because the parent waived there rights to sue but the child couldnt of fully grasp the long term consequences of a Injury and HAVE Won THE suit. Well hope this rambling post helps!
This seems like a very sound tactic, although it can be tedious and requires some effort and resources it seems to have been well worth it. Do your questions include anything about the availability of flaggers, and the waiver of liablity to any other riders on the track as well?

Theres also the "racing incident" where someone just collides with another rider on a well groomed, watered straightaway fully staffed with flaggers.
fins227
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If you need some one to lap I'm available!
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imoto34 wrote:
if you will pm me your email i will send a copy of my waivers. spent a load of money getting them right
downard254 wrote:
Did you receive my email. I PM'd you.
I asked for a copy too.

I have a waiver I get signed. I know it isn't worth much but it has to help somewhat.

I only let people I know very well and know can ride, ride at our track. I still have it signed. Every local track we go makes you sign one...
Tracktor
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2/3/2016 2:36pm
downard254 wrote:
I have layed out a natural terrain course in one of my fields, and being raised "Old School" I thought it would be nice if select...
I have layed out a natural terrain course in one of my fields, and being raised "Old School" I thought it would be nice if select others could come out and ride with my son and I. I was wondering if you could point me in a direction for a decent liability waiver to have others sign. It will not be open to the public, and I will not charge a penny to those I invite. Any other insight you may have would be greatly appreciated as I always find your posts very interesting reading. I have had a few business law classes when I was in college, and spent some time with lawyers with a few legal cases in contract law with out construction business. Just not sure how or where to go about researching case law or judgements on similar situations.
If you are busy like myself, and haven't got the time, I completely understand too.
Thanks in advance for any consideration.
imoto34 wrote:
if you will pm me your email i will send a copy of my waivers. spent a load of money getting them right
I know this is an older post but as a private track owner I would love to see a copy of what you are using. Let me know if the offer still stands.........Thanks
Dtat720
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2/3/2016 2:43pm
I had a former state supreme court justice write my waivers with the help of his former staff doing research for it.

What they deduced was, make the waiver completely seperated from you personally, as in, you do not hand them a waiver and have them sign it. You set up a website that they will have to download a waiver and a rules and regulations page to define the waivers reasoning. This waiver, and the rules, will have to be signed and NOTARIZED, then brought to you after that is done.

What this does is ensure they recognize everything listwd on the waiver. It removes any doubt in a jury that you may have forged a waiver to cover your butt, and it places all responsibility on the party who signs it.

As long as you never touch a waiver before it is signed, and the waiver itself defines everything, you will be protected.
Starcrossed
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2/3/2016 3:17pm Edited Date/Time 2/3/2016 3:18pm
I doubt such a blanket statement as the above, would hold true in every case. The less the exposure you have, the more likely you are to avoid costly litigation, but to say that any type of waiver would protect somebody in all cases is probably inaccurate. In many legal proceedings the courts will look thru the form and structure of the entity in question, and apply the "smell test." If it walks like a duck, sounds like a duck, looks like a duck...and no amount of legal wrangling will trump the smell test. In this case the OP is clearly not operating a business, but an activity which is an extension of his hobby/pastime.

It would be "the above" had it not gone to a new page...hate when that happens.

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