[hackerspaces] Insurance, liability and kids

Thu Sep 5 00:00:53 CEST 2013

Interesting thoughts on the subject. I know a bit about law, although I am
not a lawyer, no am I able to give legal advice.

First, to be clear, anyone may be sued at any time for any reason. It can
get thrown out of court quickly if it's obviously stupid, but usually if
there's a problem, it isn't.

Second of all, someone needs to tell that landlord that he leased out the
building and has relinquished control of it. He is only increasing his
liability by hanging about the place and acting like he's responsible. The
landlord is only responsible if there is a building condition (broken
floorboard, vicious plumbing, etc.) that caused the damage. Of course, that
doesn't mean they won't sue. (See above.)

Now, I kind of hate tort law, but there are some principles that matter
here:

Unusually dangerous activity: When an activity is not the normal sort (such
as Matt's metal shavings problem) it falls into this category. Law students
love these because it's strict liability, fast track to liability. They
don't have to show that a duty was breached because it's inherently
dangerous.

Assuming the risk: When kids play baseball, or whatever extreme sports kids
are into these days, they know that there's a danger and accept that there
is risk involved, but do it anyway. That's why you'll see "assume the risk"
crop up on waivers. It's how all the crazy shit that goes on in the bay
area (fire arts festival anyone?) could possibly happen. (And why Burning
Man has not been sued out of existence.) Oh, and kids (under 18) can't
legally sign waivers, although they can assume the risk. Best to get their
parents in on it.

Finally, insurance companies know all this. They have pretty good lawyers.
That means that when there is a problem, they're poised to respond. As a
result, this kind of insurance isn't all that expensive. It's definitely
worth having if for no other reason than you don't have to worry about what
happens if people hurt themselves and someone else has to deal with it.

Christie

________
Freedom of expression is the matrix, the indispensable condition, of nearly
every other form of freedom.
 - Justice Benjamin N. Cardozo

If you're interested in my work,
Videos of my talks can be found here: https://www.youtube.com/user/longobord
Slides from my talks are here: http://www.slideshare.net/ChristieDudley
My papers can be found here: http://ssrn.com/author=1999441

On Wed, Sep 4, 2013 at 1:16 PM, Gui Cavalcanti <gui at artisansasylum.com>wrote:

>  > All you have to do, is write a statement that you (the leasor/rentor)
> are taking responsibility
> > for whatever happens in the space and absolving the landlord of any
> liability.
>
> Yeah, that's just not true, especially in the US. No waiver in the world
> (even your own membership waivers! food for thought!) prevents lawsuits
> from being filed against you, your landlords, your members, etc, if the
> plaintiff can make a case that their actions (whether active or simply
> permissive) contributed to the situation. Waivers are just another piece of
> evidence that a judge considers after the case has hit the local papers and
> both parties have spent thousands of dollars on lawyers. Some waivers are
> better than others, but none have the power to magically prevent a lawsuit.
> In this case, if the landlord now knows you're allowing kids in the
> facility, and knows the facility isn't appropriate for kids, they can now
> be sued for negligence because they knew ahead of time you were conducting
> these inappropriate actions in their facilities and they didn't do anything
> about it. Furthermore, if the landlord *didn't* know, and gets sued because
> something happens in their facilities, they can easily turn around and sue
> you for every dollar of their legal expenses plus damages because you broke
> your lease requirements.
>
> (Side note: A space in our area nearly got shut down by building
> inspectors and fire marshals because a separate entity was running a summer
> camp in their facility. The situation was only resolved when the kids were
> kicked out. Local building code has specific requirements for children that
> go above and beyond requirements for adults, so if your space is only up to
> code for adult use, you may very well have a serious problem with local
> building inspectors and fire marshals [in addition to landlords and
> insurance companies] if you're trying to introduce kids into it)
>
> If you have a commercial lease in the United States, I'm almost 100% sure
> that there is a requirement in your lease for your space to have insurance
> that covers the landlord as additional insured. What this means is that the
> landlord's legal expenses are covered by *your insurance* in case they get
> sued - nothing more, nothing less. Again, this doesn't mean they can't get
> sued in the first place - if you're not behaving according to your lease,
> and they know about it (and are thus allowing it), the ball is in their
> court to kick you out or force you to change your behavior.
>
> On top of all this - even if you ARE insured, but your insurance doesn't
> cover kids, or your lease doesn't allow for uses that include kids, your
> insurance will not pay for your legal expenses, or your landlord's legal
> expenses, if you get sued because a kid gets hurt.
>
> Artisan's Asylum has been working really hard to get any events with
> children covered by our insurance, to no avail. We're working with a
> specialty insurance company, and they've been unwilling to take the risk
> given our mix of membership, classes, and constant presence of
> easily-accessible dangerous tools. I can guarantee you that if you haven't
> told your insurance that there are children in your facility beforehand,
> their presence is not covered by your existing policy. Any interaction with
> children is an additional consideration and line item on your general
> liability & property insurance.
>
> What we've found from surveying craft spaces around our area is that in
> general, educationally-focused hands-on spaces (like craft schools,
> vocational schools, etc.) are allowed by insurance companies to have kids'
> programs, because the kids are in a controlled environment and the
> insurance company can require things like having all instructors submit to
> CORI background checks. Once you add free-roaming membership into the mix,
> and change the environment to be one where random adults are interacting
> with the children in unstructured ways, insurance companies freak out. We,
> at least, haven't found one that will both insure adult membership-based
> activities and even something as simple as kids classes. We have some
> examples of spaces near us where the whole space is devoted to kids - these
> spaces generally have a Makerbot or two and a whole bunch of building kits
> like legos, duplo, etc., but not many 'real' power tools. We're still
> working with our insurance company to try and find a solution, and are 1
> year into the conversation.
>
> *TL,DR: Adding kids to makerspaces and hackerspaces is a recipe for
> disaster for those who aren't willing to do their homework. Landlords and
> insurance companies are well within their rights to shut you down if you
> don't play by the rules.*
>
> For more info about makerspace/hackerspace insurance, check out this
> article I wrote up a while ago for MAKE:
> http://makezine.com/2013/05/23/making-makerspaces-acquiring-insurance/
>
> -Gui
>
>
> On 9/4/2013 2:39 PM, Mark Janssen wrote:
>
>  I would like a deep discussion about insurance, liability and kids.
> [...rampage of landlord...]
> According to the adults he was complaining about some kind of liability
> issue and insurance among other things.
>
>  All you have to do, is write a statement that you (the leasor/rentor)
> are taking responsibility for whatever happens in the space and
> absolving the landlord of any liability.
> --
> MarkJ
> Tacoma, Washington
> _______________________________________________
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>
> --
> Gui Cavalcanti, Founder
> Artisan's Asylum, Inc.http://www.artisansasylum.com
> Cell: (857) 366-9599 (NEW)
>
>
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