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The linked article states the following:
Furthermore, the court said it found in prior cases a “rough outline” where liability waivers were held invalid. In its decision, the Supreme Court wrote: “[T]he attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.”
To interpret a bit -
In the current case where MG Forbes is claiming that the u$hPa's waiver may be found invalid, . . .
Well, considering the above, the u$hPa is certainly a business "thought suitable for public regulation".
Also - the u$hPa is "engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public". This fits in with their business position as directly connected and vital to hang glider and collapsible canopy pilots in the US.
Next - The u$hPa does hold itself out "as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards."
Then - "[a]s a result of the essential nature of the [u$hPa's] service, in the economic setting of the transaction, the [u$hPa] invoking exculpation (their interest in not being held liable) possesses a decisive advantage of bargaining strength against any member of the public who seeks [the u$hPa's] services."
The u$hPa then ". . . makes no provision whereby a [member pilot] may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction [membership form requiring a signed a waiver], the person or property of the purchaser is placed under the control of the [u$hPa], subject to the risk of carelessness by the [u$hPa] or [its otherwise certified instructors, observers, etc.].”
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What Mark Forbes is arguing is that GROSSLY negligent u$hPa certified (HG or PG) Instructors should be allowed to get away with their GROSS NEGLIGENCE. The kind of preventable negligence that results in u$hPa members being injured FOR NO GOOD REASON!
Why is Mark Forbes making his argument against Bob K? Because Air California Adventure can be so easily proven to have been GROSSLY NEGLIGENT in the case in point. And that the case has happened to include Bob K's observations as an expert witness.
Essentially, what Mark Forbes and the rest of the u$hPa BOD have decided is, that by Bob K assisting in clarifying the Extreme Nature of Air California Adventure's negligence he has pointed out "The Elephant in the Room". And that elephant would be, . . . the significant danger that Air California Adventure poses to the u$hPa and it's members (especially those who may deal with ACA Inc. at Torrey Pines).
The u$hPa doesn't like this because if Bob (or anyone else who may have come forward) had just kept their mouth shut then the injured party (a u$hPa member!) would have found it much harder to prove Gross Negligence - and not been compensated for her injuries. The u$hPa is in "Speak No Evil" mode - or better put, . . . "Speak No Words-That-May-Improve-Our-Safety" mode.
Now wouldn't the above be in conflict with the u$hPa's NFP Corporate By-Laws and/or SOPs? Ain't they acting to cover up Unsafe Flying/Training Practices? They're acting to CRUSH positive efforts toward improving safe flying and training methods within the sports they claim to represent. Now that's messed up!
BTW - Somebody needs to post complete current copies of the u$hPa's NFP Corporate By-Laws and/or SOPs.
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