Re: Liability...the thread that will not die..

["Tesla list" <tesla-at-pupman-dot-com>]

Original poster: "Jim Lux by way of Terry Fritz <twftesla-at-qwest-dot-net>" <jimlux-at-earthlink-dot-net>

Several other things rear their ugly head:

1) You can sue anyone for anything, but you might not win. True enough, if
it is frivolous enough, then you and your attorney might get slapped down,
but it is rare.  The system wants to give everyone "their day in court" to
get heard.

2) It costs significant resources to defend even the most trivial of
lawsuits. At the very least you're going to have to do the "motion to
dismss" and "show cause" kinds of things.  Fortunately, for the average
plaintiff, it costs them too, even if they DO have a brother who is an
attorney.

3) In the absence of any written agreement to the contrary, you can't
recover your defense costs for an unjustified lawsuit, so you're on the hook.

4) Because of the plaintiff costs, though, unless the defendant is likely
to have significant assets or resources, it's not going to be worth suing
them.  If you are a professional, carrying liability insurance, or having
significant income or assets, all of a sudden, you are a ripe target.
(Amateurs, watch out if you own your house free and clear!)

5) No amount of paperwork or contracts or disclaimers or whatever can save
you from getting sued. The paper does two things:
a) discourages the plaintiff from suing in the first place (their lawyer
will hopefully advise them of (b) below)
b) might(!) ensure that you prevail in the long (expensive) run.
c) if they actually read and understand it, then they are making an
informed decision.  How will you know, though, that they really did read it
and understand it? 
But, you've got to watch out for things like the plaintiff (or the
plaintiff's family, more likely) claiming that the contract/disclaimer/etc
wasn't entered into knowingly or with fair negotiation. (Think of those
worthless disclaimers of liability printed on the back of the parking lot
receipt.. They're called contracts of adhesion...)


The upshot is, in my not so humble opinion (humility is not my style), you
need to do the following:

Deal with people you know and can trust.  The prospect of selling something
experimental, and potentially lethal, to someone that I hadn't talked to or
had correspondence with to develop some form of warm fuzzy feeling that
they weren't going to kill themselves, is a frightening one.

The disclaimer idea is great when the buyer is standing there in front of
you, and you can watch them read it, ask them questions to determine if
they understand it, etc.  But, if it is just a piece of paper you send
along with the lethal device, I don't think it's going to hold much water.

> 
> Hi Steve,
> 
> Although this does not seem like it is really on topic, you do hit on a
> very good point (IMHO).  People with guns are supposed to know how not to
> accidently kill themselves and others.  The "rules" and "do and don't" are
> pretty clear cut.  Those accidents are not new or unexpected when ones goes
> back and looks at the accident...
> 
> 
> So perhaps the disclaimers about selling used cars would be pretty close.
> "as is" "no warranty" "buyer assumes all risks", "you are buying a
> dangerous piece of experimental electrical equipment that has many known
> and unknown dangers"...  In other words, once they drive it away, it is
> "ALL" theirs...  Tesla coils are strange devices, so they are not nearly as
> well known as cars.  So maybe extra emphasis should be put on you are
> buying and assuming the risk of owning a really strange high voltage
device...
>