[TCML] liability and tc filming

[Jim Lux <jimlux@xxxxxxxxxxxxx>]

Peter Terren wrote:
> I did 4 segments for Discovery Canada and there was NO need for any 
> insurance. There was some disclaimer that if I killed myself it wasn't 
> their fault. (for the first episode anyway). Filming was done locally 
> and there was no contractual arrangement with me. The cameraman got paid 
> directly by them.  The videos got sent and got used. Interviews were 
> done over a mobile phone which worked out fine. No degree required. I 
> have two but they are the wrong sort!
> Discovery would have had no liability in this case as the connection to 
> me was tenuous and non-contractual. Being in another country may have 
> helped.
> Nevertheless Discovery got their stuff and I got my stuff shown so 
> everyone was happy. No one had to do any travel. Even worked with a 
> tight time schedule from shooting to editing, production and screening 
> in 7 days for the Xmas one.

this topic comes up in one form or another about once a year (guessing.. 
I didn't search the archives..)
As Peter points out, he was in Australia.. different laws, different 
philosophies, different payment systems for health care, different 
per-capita ratio of attorneys
As it has been informally explained to me by a variety of attorneys, 
here's the basic scoop..
1) If you're fooling around in your garage, and decide to run your tesla 
coil or fire your rocket motor or drive your drag bike around the 
backyard, and YOU get hurt or burn the house down.. it's between you and 
your insurer.
2) If you do #1, and you invite your neighbors over to watch (check out 
my new scramjet!), and one trips over the fuel line... it's your 
liability coverage (homeowners insurance typically) that deals with it. 
If you're a renter with no insurance, you might wind up both poor and 
homeless after your landlord evicts you for cause.
3) If you do these things in an environment that isn't a casual invite 
the neighbors over situation, say, you show it off for a bunch of school 
kids (Career day!)... it starts to get stickier.  Typically, the school 
would carry insurance (or self insure) for these sorts of things, and as 
long as they took "reasonable and prudent" measures, they're probably 
ok.  Note that in some states (e.g. California), there's a pretty low 
limit for a public school's liability (a few $10K), and for the parents 
liability for acts of their child (your kid's tesla coil burns down the 
school and electrocutes half the staff.. you're probably not liable for 
more than $10K or 20K)  (this is how kids can do science fair projects 
for things that an adult might not be able to do)
However, if you're doing the demo in a non-school setting (schools have 
special rules), say, something like demonstrating model rockets for the 
local boy scout troop at the park, your liability is probably unlimited. 
 Sure, it's unlikely anything will go wrong, but if it does, and you're 
at fault, you're going to be on the hook.  This would apply for any 
casual bystanders as well (e.g. if the local news station was there 
filming you and the boy scouts, and the rocket went awry and hit the 
cameraman.. the cameraman gets to recover from you)
The folks who own the park may ask you for a certificate of insurance, 
if it's any sort of organized activity (as opposed to you dragging your 
20 foot trebuchet down the street and attracting a parade of interested 
observers like the Pied Piper of Hamelin).  To that end, many organized 
dangerous activities have blanket liability insurance for their 
members.. NAR for rockets, for instance, AMA for R/C airplanes, but they 
also require certain rules and procedures, etc.
4) If someone asks you to demonstrate your dangerous thing, and you do 
it, it gets even hazier.  There might be an implied contract here 
(issues of offer and acceptance as well as consideration), and in doing 
so, the other party might have accepted some of the responsibility 
(unless you explicitly accepted it), since you're to a certain extent 
acting as their "agent". It's not as clear cut as if they hired you as 
an employee to do this (in which case, they're clearly on the hook, as 
long as you were doing what your job said it was).
Does it matter if no money changes hands?  Not necessarily. That's the 
whole consideration for contract thing. (consult your attorney, in other 
words).
5) Occupational exposure.  You're hired to build and/or operate some 
machine and people's jobs require that they be near the machine.  Here, 
it gets really sticky.  That other person is required to expose 
themselves to the danger as a part of their job, so if they get hurt, 
they can claim against the employer, and, in general, your contract will 
hopefully indemnify you (i.e. the employer accepts the liability).  The 
injured employee (or bystander, or paying customer at the show) recovers 
from the income and assets of the company.
OTOH, what if (as is the case in the entertainment industry), the 
employer hires most of their staff as contractors, and has very little 
assets in themselves.  Someone gets hurt (or thinks they might be hurt). 
They go to their insurance company and get treated. Their insurance 
company goes to recover, if they can, from anyone else likely.  That is 
usually the production company.  But, maybe the production company has 
ceased to exist (since most of them are created for the duration of one 
production) or has no real assets (other than a potential income stream 
from whatever it was they produced.. sure.. lots of money there.. read 
up on "net points" or "recoupment").  Then, the insurance company (who's 
out the cash already) starts looking for other potential sources of 
reimbursement (the whole process is called subrogation).
(As wikipedia says, "the basic concept is straightforward, but it is 
considered a highly technical area of the law")
What's the take home message here...

Go have fun with your tesla coil.

If someone asks you to run your tesla coil, it's time to start at least 
thinking about liability exposure.
If *someone else is getting paid* in connection with you running your 
tesla coil, you MUST think about liability exposure. Where there is 
potential profit, there is potential risk.
If YOU are getting paid to run your tesla coil, you probably have 
liability exposure, and you need to think about insurance.

Jim
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