Liability question

[Buzzkill]

My son volunteered me to make a sword (or up to 5) for the high school play.  I've completed a SSO from leaf spring and am more or less ready to deliver it to the theater department.  I took the good time and trouble to draw up a "Hold Harmless Agreement,"  but then I got to wondering if I give it as a gift and relinquish ownership of the property, does that transfer all liability to the new owners (the school) for its use or misuse?   I'm not horribly worried about it, but with the lawsuit happy world we live in I'd hate to find myself on the wrong end of a suit after trying to help the school.  Does anyone know how that works one way or the other?  I kind of hate to require them to sign the Agreement if it's not necessary, but I sure don't want my posterior exposed on this one.

[Den60]

Did you hone it to a fine edge? 

 

[Timber Ridge Forge]

Check local and state laws. The fact is people can sue no matter what is signed but your county clerks office should be able to help.

[Buzzkill]

Heheh.  No.  I rounded the tip and left it dull, but it's thinner than a dime at the edge, so it would still be fairly easy for someone goofing off to split the skin of a fellow student.  I haven't been a teenager for a few decades, but I still remember some of the stupid shtuff I did then.

Just now, Timber Ridge Forge said:

Check local and state laws. The fact is people can sue no matter what is signed but your county clerks office should be able to help.

Thanks for the tip.  I wasn't sure who to ask and I didn't want to have to pay an attorney to get an answer.

[Hotshoein4 (Mark)]

You'll get your best and most accurate answers from asking a lawyer that knows the laws

[Den60]

have you thought about pvc, pipe insulation and duct tape?

 

[SLAG]

 Buzz...,

Stated, 

" ... but then I got to wondering if I give it as a gift and relinquish ownership of the property, does that transfer all liability to the new owners (the school) for its use or misuse? "

 

The short answer is no. You are still on the hook for possible a negligence &/or products liability lawsuit.

You might be found not liable but the costs of the lawsuit would probably ruin you financially. (lawyers are expensive). and if found liable the awarded damages could huge.

Especially in that your work are swords. It is foreseeable that a sword could cause injuries in the hands of a child.

Permit to use an analogy. 

A drugstore sells a medicine. That medicine causes the purchaser injury.

The injured plaintiff's attorney would sue the manufacturer, seller (drug store , or  whole seller etc.), and every other party that has anything to do with that sale.

Writing a hold harmless agreement is, also, not a good defense. 

For one I suspect that you are not an attorney. Contract and statute drafting requires extra study/courses. Plain words  and simple language may have a whole different meaning in the law. The signee cannot be a minor. And an adult could argue that they did not understand what they were signing. ('non es factum"). etc., etc.

There are many other arguments that counsel can make. I have listed several but a full treatment of this area of the law would require many pages and is not necessary.

If you insist, in light of my notes above  to write such an agreement, run it by an attorney at the least.

I strongly urge you to decline making such a donation.

Save your A##.

Respectfully submitted,

SLAG.

(retired attorney).

p.s. (There is no charge, for the "sort of" consultation)

p.p.s.  Den 60, a child could use the weapon and take another child's eye.

[Buzzkill]

SLAG, thanks much for the information and advice. 

 

I used an online generator on an attorney's site which is specific to my state, but you are correct that I'm not an attorney and am therefore probably not a good judge of how well it would hold up if needed.  I can tell you that it's a couple pages long with lots of words I don't use on a daily basis and it does specify that the person signing it has legal authority to do so.

Of course the option with the least risk is to not give it to them.  On the other hand if we all get so paranoid about the downside of helping others that we cease to do it, that doesn't make for a good society imho.  Maybe I'll sleep on it and decide in the morning. 

Thanks again.

[SLAG]

Putting forward a standard form document is not bullet proof. If it was there would be no need for lawyers and that, assuredly, is not the case.

We have shredded laymen and some negligent attorneys for their reliance on a generalized standard form contract or a pastiche of standard form contracts or amalgamations of several of them. (or phrases from several sources

The results are pathetic & very damaging to the user and draftee.

Estate attorneys relish contesting laymen drafted contracts in court

Also it behooves said draftee to know the case law of the state, where the contract is signed, and relevant Federal case law.

There is no such thing as plain English. Trust me on that.

Good luck on your choice of activity.

SLAG.

p.s. I practiced high technology, patent and licensing law. The drug companies knew better than to resort to amateurs, or general attorneys for their patent questions and high tech. law requirements.

[JustAnotherViking]

You're asking the wrong question.

Real metal (especially spring steel!) has no business on a stage, especially in the hands of children.
Forget about liability: It's just too dangerous, no matter the experience of the person holding it... not even seasoned stunt actors would use a steel sword on stage or camera.

Some stage professionals will use an aluminium sword, but most will use a solid cored rubber one, painted realistically.

 

It's nothing to do with getting paranoid about helping others, it's about providing a tool suitable for the task.

You could suggest lending the real one to the schools art department, so they can make a silicon mould and make stage ready copies?

[Smoggy]

"....Real metal (especially spring steel!) has no business on a stage, ......It's just too dangerous, no matter the experience of the person holding it... not even seasoned stunt actors would use a steel sword on stage or camera. ...."

Don't know where you get this from, "real steel swords" are not only regularly used on stage and on camera but also at re-enactments.

I know the culture is different over the pond as far liability goes, but how can an unsharpened sword be any different from a javelin, hammer, wood chisel, baseball bat or a pointy pencil? All of which could if missused or employed maliciously cause injury! Surely the school is in charge of both child and equipment and there the liability ends. Otherwise, Colt would be long out of buisness and no bladesmith could possibly afford to make a living!

[JustAnotherViking]

37 minutes ago, Smoggy said:

Don't know where you get this from

From being on set, talking to the weapons master, and based on what I was holding while the camera was rolling.

Any closeups, with very little movement.. yes: very lightweight blunt sword shaped objects.

Anything with a hint of movement and action, everything was swapped out to solid cored rubber/foam casts of the originals. Even the shields were swapped out.

 

Quote

how can an unsharpened sword be any different from a javelin, hammer, wood chisel, baseball bat or a pointy pencil? All of which could if missused or employed maliciously cause injury!

A sword IS a weapon. Pure and simple, doesn't matter if it's wooden, blunted, or otherwise. It has a single purpose.
The other items are designed for specific, non-violent purposes. It's all down to the intended use and design, not how they they end up being used.

If a chisel was defective and someone got injured (through intended use), the liability falls with the manufacturer and their insurance, not the school.

If the chisel was misused, and a child acted violently using it, then the school would be on the hook for negligence.

A 'real' blunted sword for theatrical purposes has as much place in a school as a handgun as a discipline device to keep order in the classroom.

 

As a parent, I wouldn't want my children using metal weapons for a stage play. There's absolutely no need for it. It creates a greater risk of accident, regardless of liability, and adds no tangible benefit to the theatrical setting over a safer prop.

If they want to learn sword fighting, and practice it in a suitable setting, that's great... but not for a theatrical performance where accidents can happen.

As I said, it's down to the right tool for the task at hand.

[Buzzkill]

3 hours ago, JustAnotherBiker said:

A sword IS a weapon. Pure and simple, doesn't matter if it's wooden, blunted, or otherwise. It has a single purpose.
The other items are designed for specific, non-violent purposes.

While I don't want this topic to get blown out of proportion, I must respectfully disagree.  We're not talking about a sword here.  We're talking about a SSO (sword shaped object) which was specifically designed and built to NOT be a weapon.  It's not heat treated, it has no point on the tip, and the edges have not been sharpened.  It would be a lousy weapon.  From the beginning it was intended to be a stage prop and therefore designed for a specific, non-violent purpose.

The reason they requested a steel SSO is they wanted the sound of steel on steel in the choreographed fights in a couple scenes.  Therefore, it is the right tool for the task at hand.  The only question for me is whether or not it's worth the risk to me if I give it to them.

[Latticino]

1 hour ago, Buzzkill said:

sound of steel on steel in the choreographed fights in a couple scenes

Isn't that what the behind the scene sound manager is supposed to produce for the audience?

My one, limited direct experience with high school theater was 40 years ago, and it may have been a less litigious time.  I made a high voltage, electric arc Jacobs ladder for one scene (the show was Mary Shelly's Frankenstein, and I also was type cast as the monster), but these days would be worried about liability.  I also have a good friend who is the props master for our local professional theater.  I know that for one production there was quite a bit of swordplay and he had to spend a lot of time blunting out the swords that were purchased as props for the actors from some museum replica source. 

I'm sure it is different for professional actors.  Personally I would not take the risk for a high school production.  Even a blunt sword can break bones.

[Smoggy]

6 hours ago, JustAnotherBiker said:

6 hours ago, Smoggy said:

Don't know where you get this from

From being on set, talking to the weapons master, and based on what I was holding while the camera was rolling.

Any closeups, with very little movement.. yes: very lightweight blunt sword shaped objects.

Anything with a hint of movement and action, everything was swapped out to solid cored rubber/foam casts of the originals. Even the shields were swapped out.

Then I will take with a pinch of salt the documentary I saw where the prop dept, and very well known actor took great legnths to explain why they do use actual swords on stage specificaly for the choreographed fight scenes and do not rely on the sound dept to attempt to match the sound of clashing steel during live stage performances. I believe the actor, if memory serves me correctly was Ioan Gruffurd and it could have been a Royal Shalespear production, can't be sure.

[ThomasPowers]

I am shocked to learn that clubs are not weapons!---For that is what a SLO is--- a club with weight, (often heavier than a real sword), and a thin edge.

Remember the professional actor that killed himself accidentally with a gun loaded with BLANKS?    I'd not want to be around teenagers with wooden swords even.

[NoName]

   Hey Buzz

  Lots of advice. Listing to the experience, and voice of wisdom, from the Slagster. Please know everyone is presumed innocent, until proven guilty. Unfortunately, a attorneys look at it completely different, everyone remotely involved is dragged in. An ounce of prevention, is light weight in court. 

  Family friends son had permanent eye damage. From a wooden SSO, in a school play. There was a settlement. 

  Most of my life I have been in the bar business. It was a hot summer night, with a live band playing, packed house. Local man comes in with his wife. Proceeds to start trouble, my greeters (called bouncers other places) quickly start helping him to the door. Ends up getting away from them twice, and proceeded two get knocked around more than once, by a patron. 

  Long story short. He and his wife both lawyered up, suing me personally and the bar. The original suite was for over $500K each. Sad part my insurance company settled. They told me it was for under $1,500.00, it would have been less than court fees.

   Some comic relief. Same guy tried to come back to the bar, less than a year later. 

        N.N.F.                   Beautiful,   Manchester,   Michigan.  USA 

[JustAnotherViking]

46 minutes ago, Smoggy said:

Then I will take with a pinch of salt the documentary I saw where the prop dept, and very well known actor took great legnths to explain why they do use actual swords on stage specificaly for the choreographed fight scenes and do not rely on the sound dept to attempt to match the sound of clashing steel during live stage performances. I believe the actor, if memory serves me correctly was Ioan Gruffurd and it could have been a Royal Shalespear production, can't be sure.

I'm sure the Royal Shakespeare would have a touch more liability insurance, and professional choreograph sword training than a high school production, so i'll not argue with you on that point.

My experience is limited to TV (a certain well known HBO production), not stage, so only commenting from my personal experience.

[Charles R. Stevens]

I wouldn't trust the little heathens with foam rubber my self...

[SLAG]

Thomas,

The actor that killed himself while hacking around, on a television set was a Mr. Hexham. (I do not remember his first name.)

A google and wiki... search did not yield any information

He put a large caliber pistol to his head and fired. It was loaded with a blank cartridge. But the concussion proved fatal.

Zounds! sir, that memory really dates both of us.

Just a little trivia for the gang. Or is it obscurata?

SLAG.

p.s. handing out a sword to a child high school actor would not only constitute negligence. But gross negligence.

It might even be considered a reverse onus situation. ("Res Ipsa Loquitur") Whereby the defendant is presumed to be guilty of negligence, at the start, until he proves otherwise.

p.p.s. Initially listing everyone as defendants is done so that they are all are of record. So that the statute of limitations is not transgressed. Once the limitations period runs out no new defendants can be added. Some of the parties are dropped from the lawsuit later on.

p.p.p.s. The law in the U.S.A. is very different from that of other common law countries. (like the U.K., Canada, Oz. etc.).

 

 

[ThomasPowers]

Just an example of people not treating weapons with respect because they were not "real".

My wife was in an Opera, "The Masked Ball", where one of the leads accidentally stabbed himself with a dagger; just as the curtain came down for the act; the scream as another member of the cast saw the pool of blood was *perfect* for the moment in the opera my wife told me.  Luckily the hospital was across the parking lot and was greatly  astounded as a group in operatic costumes carried him into the ER.

[Smoggy]

Been mythering me what the documentary was....eventually found it online. Well worth a watch for it's own sake, also it's relevence to this thread. It's a History Channel Production "History of Swords : Ancient Killing Weapon" Enjoy!

[Buzzkill]

FWIW I'm going to talk to the director of the play before moving forward.  If I hand anything to anyone it will be to a responsible adult. 

Again, handing a sword to a kid would be gross negligence.  A SSO might be a little bit in the fuzzy area.  I don't think you'd put handing a loaded firearm in the hands of a kid in the same category as handing the same kid a firearm shaped object which, by design, could not function the way that the weapon it imitates would function. No matter how realistic looking a "sword" might be, if it were made of paper mache, silicone, cardboard, etc. it would be difficult to convince any reasonable person that it was irresponsible as handing out a fully functional weapon. This is somewhere in between.

43 minutes ago, Charles R. Stevens said:

I wouldn't trust the little heathens with foam rubber my self...

This is where I struggle a bit.  I was driving tractors in the fields before my age was in double digits.  I bought my first (non-running) motorcycle at 12 and fixed it.  In my mid teens I reloaded my own shotgun shells. Model rocketry was a short-lived hobby for me because it led to building my own rocket motors, which led to becoming fascinated with large booms.  And yes, my parents were aware of all these activities.  By the time I was in high school I had driven bulldozers, combines, articulated log skidders, dump trucks - pretty much anything that had a motor and could move that I had access to.

I said all that to say this:  My personal experiences at that age or earlier make it hard for me to see a couple pounds of blunt steel and wood in the hands of a teenager under adult supervision as some prohibitively dangerous event.  I recognize though that I was not "normal" and that the world has changed a bit since then.   We've gotten entirely too soft imho.

[JHCC]

1 hour ago, SLAG said:

The actor that killed himself while hacking around, on a television set was a Mr. Hexham.

You may also be thinking of Brandon Lee (Bruce's son) who was fatally wounded on-set by a squib load (from improperly prepared dummy rounds) propelled from the gun by the firing of a blank cartridge.

1 hour ago, SLAG said:

Just a little trivia for the gang. Or is it obscurata?

Trivia. "Obscurata" does not mean "obscure things" in the sense we commonly use "obscure" nowadays (i.e., unknown), but rather to denote things that are deliberately hidden or kept secret.

 

[Charles R. Stevens]

Their is a difference between your teenager under your supervision, where his/her fear of you imposing imidiate and painful consequences on him is very real and some one else's teenager under another adults supervision. Many children have not been dissaplimed to any meaningful level and most children by the time they reach high school know that teachers have been all but rendered toothlesss. Like accidental shootings involving kids, it's rarely the gun owners child, but the kid visiting the gun owners child that ends up shooting some one (usualy the gun owners kid). The cost of liability has caused wood shop, metal shop, auto shop(with the exception of AG and home ec federal programs)  have all gone by the way side in most schools. 

John-Eric Hixum is the actor who shot himself in the head with a blank that Slag is referring to.