Designer protection

Hi all new here. Over the last few years I made a small iceboat. The intention was to build 2 of them one for me and one for my sailing buddy. The first time I sailed it I had people inquiring how to get one. I didn't think there was a way to make much money building for people them so I just drew up a set of plans instead. In the mean time people asked me to make a landsailer version. So I did. A few years later I've sold 75 sets of plans all over the world. I feel a bit unsure if I want to proceed selling the plans for fear of being sued some day if someone got hurt or die sailing one. I checked out designer liability insurance but it cost more than what I make on the plan income annually. I'm considering forming an association (incorporate) like any one of many design sailing classes. Then I would donate the plans to the class. I've talked with a lawyer who said to make a waiver that the client signs describing the potential of a ruined life, horrible death by using the plans Yaddy yaddy ya. I'm not sure what to do. Any advice out there?

 

Welcome to the forum.

Your lawyer is correct and standard disclaimer on the plans, typically in a purchase agreement text, is all that's necessary. It's one thing to draw up a reasonable set of plans, yet another to take responsibility for the foolishness of others. Proving there was negligence in the structural elements of the plans, is a difficult and quite costly thing for a former client and their attorney to do in a court. Simply put, you shouldn't worry much and just place a disclaimer on the plans.

 

The cheapest protection is with an LLC. It costs about $130 to incorporate.

 

I've dedicated several pages with the typical safety issues involved with the two activities ( iceboating and landsailing). The design is sound. We have put them through the paces and have documented specific things to do and avoid and materials to use for the safest results. I never bothered to have anyone sign a document stating they understand and read the disclaimer. The lawyer I spoke with said I should get a signature.
This is my warning page. -


These plans and or literature have no warrantee or guarantee. By using these plans you agree to be 100% responsible for your own actions. If you have never sailed an iceboat or landsailer get proper instruction before attempting to sail the Mini Skeeter. If you loan out your Mini Skeeter you are responsible for properly instructing the person using it. Stay away from others to avoid collision. Stay away from other recreationists to avoid collision. Avoid areas such as parking lots or congested areas where you may encounter other vehicles. High speed sports like iceboating and landsailing have risks that may include property damage, bodily harm or even death. In general wind driven sports have risks such as gusts, dust devils, turbulence, shifts and micro bursts etc.. Know your limits. You are responsible for frequently checking your boat for maintenance. Pay particular attention for wear on all fasteners and steering rods involved with the steering mechanism. Make sure the main sheet can easily sheet out at any time. Install an effective cap, knob or handle on the end of the push steering bar in the cockpit to avoid injury. Dull runners and or worn tires or improperly inflated tires can impair the ability to steer. Mast rake, sail size, weight and runner plank/axle placement, tire pressure, runner sharpness and the amount of crown can also effect the steering. Seized steering can result in property damage, injury or death. Certain terrain or wind conditions on ice or land are dangerous. Know the conditions before sailing. Don’t sail alone. Be advised Mini Skeeters have no effective brakes! The rear brake on the landsailing and iceboating version are for speeds less than 5 mph to aid in parking the boat. This can only be achieved if the sail is under no load as in heading into the wind. The iceboat version should use one runner with a barking brake. Secure your Mini Skeeter when you’re not in it so it can’t sail away by itself. Use parking brakes and or tie off the front wheel to the forks so it can’t sail away by itself. If you have problems with visibility adjust the seat, pedals and sail height to achieve maximum visibility. If a capsize occurs the mast may break resulting in injury. The carbon fiber masts are susceptible to breakage. The aluminum mast will handle a capsize better then a carbon mast. Building your Mini Skeeter to the maximum width will give it more stability concerning capsizing. Wear a good crash helmet. A quality made full faced motor cycle helmet is a good choice. Installing a roll bar could help avoid injuries as a result of a capsize. Add sufficient backing to attach the roll bar to the fuselage. 3/4” thick plywood backing is recommended on the sides of the fuselage where the roll bar bolts through. Seat belts are recommended for hard surfaces. Seat belts are not recommended if there is a possibility of drowning like sailing on beaches and iceboating on frozen lakes. Be advised this is a new unproven design. Extending the seat length on the original Mini Skeeter version or Mini Skeeter L version may change the balance of the boat. Changing the mast rake angle, sail height on the mast and or runner plank location can affect the ability to steer or not to steer properly. These will have to be experimented with and tuned by the person sailing the boat. A person’s body weight or the addition of ballast will affect the balance of the boat. These are all common issues in the nature of the activity that will have to be experimented with by each user to get the optimum balance and stability. If your boat is set up wrong you could get hurt or hurt others. It’s your responsibility to know what’s right for your particular situation. Steering problems can occur more frequently turning from downwind to up wind with the smaller 4.0 sail on in heavy air. Moving the runner plank/axle forward and or raking the mast angle back more can help reestablish better steering. If it’s still unsafe wait for the wind to come down. By building with these Mini Skeeter plans or using the Mini Skeeter you agree to hold no harm or liability to ----- Insert my name-----.

I also wrote a page or two to encourage users to install roll bars, go to all aluminum masts rather than carbon fiber masts (they can break and they seem to have a limited shelf life anyway). I've increased the width to add increased righting moment.
Am I missing anything obvious with the warning page (disclaimer)?
Thanks

 

That doesn't help with malpractice and the like.

excerpt from LLCs and Limited Liability Protection: A 50-State Guide http://www.nolo.com/legal-encyclopedia/limited-liability-protection-llcs-a-50-state-guide.html

Personal Liability for Your Own Actions
There is one extremely significant exception to the limited liability provided by LLCs. This exception exists in all states. If you form an LLC, you will remain personally liable for any wrongdoing you commit during the course of your LLC business. For example, LLC owners can be held personally liable if they:

• personally and directly injure someone during the course of business due to their negligence
• fail to deposit taxes withheld from employees' wages
• intentionally do something fraudulent, illegal, or reckless during the course of business that causes harm to the company or to someone else, or
• treat the LLC as an extension of their personal affairs, rather than as a separate legal entity.

Thus, forming an LLC will not protect you against personal liability for your own negligence, malpractice, or other personal wrongdoing that you commit related to your business. If both you and your LLC are found liable for an act you commit, then the LLC’s assets and your personal assets could be taken by creditors to satisfy the judgment. This is why LLCs and their owners should always have liability insurance.

 

However, the civil liability extends to the assets of the LLC only. Criminal liability remains, regardless of the business organization, for gross negligence or other cases. If you mix personal property with the LLC, the protection disappears.

 

Trivial liability suits are the bane of our existence but we are forced to live with them. One of the several reasons that medical care is so expensive I am told.
Your question brings to mind the liability concept for boat designers and builders. If some yahoo gets drunk and rams his fast boat into a bridge abutment, is it the boat designer or builders fault? Or how about the case of a fisherman capsizing his narrow Jon boat and he drowns or an alligator eats him.? Sky divers and rock climbers are doing some dangerous stuff, just like Ice Boaters. Do the courts not take the well known danger of some voluntarily indulged recreational pursuit into consideration? Maybe not.

Popular and practical advice for designers such as the OP is: CYOAF.

 

The reality is you might get a jury to "buy into" the spiel of a designer being negligent, when a bonehead gets hurt or worse, but in the end, most courts find boneheads as what they are, typically on appeal. Do odd cases costy the designer, yep though quite occasionally, but most aren't worth enough to carry the suit the full 7 - 8 years of process and to conclusion, so one of the parties runs out of money or gives up.

 

Hi, one question regarding insurances. I have a boat/propulsion drive design office and I have new potential international customers with interesting boat design projects that require very professional approach: in other words, good cover. My business is located in Finland and I find it difficult to find an insurance company locally that would be happy to provide me with an insurance as I have international customers.

Any insights on insurance companies that provide insurances for international businesses? What kinds of insurances to consider in boat design business? Especially interested in insurance companies within Europe.

Cheerio
Ben

 

The "standard contract" pushed by the American Architect's Association or whoever has a clause that has the customer on the hook for unlimited legal and other expenses if any 3rd party sues the architect for any reason. Which makes a bit of sense since in the USA its SOP to sue EVERYONE involved hoping for a deep pocket or infighting, etc. Someone gets drunk and jumps off the roof the architect is gonna be named in the Ghetto Lottery lawsuit.

IIRC it also includes the client paying unlimited legal etc expenses if the architect decides to sue someone, like for copying his plans. I worked for a guy who would "steal" a set of blueprints and change room sizes by an inch, and get away with it.

Are your warnings missing anything? What about wearing a helmet or PDF(for ice)? IIRC all helmets for biking, climbing, kayaking, motorcycling say "Do NOT use this helmet for any activity EXCEPT kayaking (or whatever)".

IMO your course of action mostly depends on how much lawyer-grab-able assets you have. LLC or Inc. might be the way to go, so you can tax deduct your new SUV etc as "company tow vehicle". Maybe an "umbrella policy" to cover ANYTHING you get sued for. IIRC it was OJ Simpson's "umbrella" insurance that paid for his Dream Team because they were on the hook for any civil judgement.