On Thu, 06 Sep 2007 07:32:28 -0400, Reginald P. Smithers III penned
the following well considered thoughts to the readers of rec.boats:

Gene Kearns wrote:
On Wed, 5 Sep 2007 21:10:10 -0400, Bill Kearney penned the following
well considered thoughts to the readers of rec.boats:

That's bull****, trying to sue the association too. Money grubbing children
trying to score the lottery.

I disagree... at least, in principle... what is the purpose of a
"Lake Association" other than the purpose of social engineering.

If the "association" has failed to control the thoughts and behaviors
of one of its minions.... it should be held accountable..... and so
should all of the people (the "Association") that felt they could
control the actions of others........


Ditto all of those other "Associations" a la HOA.....

.... Go Figure.....


Gene,
I know you don't like HOA's, but do you really think the Association
should be held libel for "damages" because someone was drunk on the
lake? If that is true, couldn't we hold the C of E's responsible for
"damages" due to all DUI's and any other accidental deaths on lakes
under their control?

While the reward would not be as great, we could also sue any and all
lake owners if someone drowned in their private lake even if the victim
or the one responsible for the death was trespassing. After all a
lake should be fenced in to prevent people from trespassing, it really
is an attractive nuisance.

Now if, as Chuck said, the Association ran a club on the lake and served
the individual alcohol that contributed to the person being drunk, I
think they should be held responsible, but not just because they have
set up an Association to set up and enforce covenants for the lake.

I was posting a bit tongue-in-cheek..... attorneys tend to list, as a
defendant, everybody-on-earth that ever-had anything-to-do with
whatever-it-was seeking the deepest pockets.

It appears to me that these Lake Associations both control who is or
is not on the lake and have and enforce their own laws (which are most
likely a subset of the local and/or state laws). If I am correct on
that point (though not an attorney) I suspect that the plaintiff has a
pretty good case and will likely prevail in court. (I suspect that the
question will surround whether the victims of the accident had a
reasonable expectation of safely enjoying a privately controlled and
regulated lake.)

Again, don't miss the point that this is all CIVIL litigation made
possible by people who willingly signed on the dotted line and exposed
themselves to the potential hazards of being a defendant in any future
litigation. Lawsuits (nor associations) don't just work in one
direction.

If you are a member of any of these associations, bear in mind that
the association can both sue and be sued. If not properly
incorporated, your personal involvement with the association may have
exposed you to personal risk.

It will be interesting to see how this is finally resolved......

--

Grady-White Gulfstream, out of Oak Island, NC.

Homepage
http://pamandgene.idleplay.net/

Rec.boats at Lee Yeaton's Bayguide
http://www.thebayguide.com/rec.boats
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Gene Kearns wrote:
On Thu, 06 Sep 2007 07:32:28 -0400, Reginald P. Smithers III penned
the following well considered thoughts to the readers of rec.boats:

Gene Kearns wrote:
On Wed, 5 Sep 2007 21:10:10 -0400, Bill Kearney penned the following
well considered thoughts to the readers of rec.boats:

That's bull****, trying to sue the association too. Money grubbing children
trying to score the lottery.
I disagree... at least, in principle... what is the purpose of a
"Lake Association" other than the purpose of social engineering.

If the "association" has failed to control the thoughts and behaviors
of one of its minions.... it should be held accountable..... and so
should all of the people (the "Association") that felt they could
control the actions of others........


Ditto all of those other "Associations" a la HOA.....

.... Go Figure.....

Gene,
I know you don't like HOA's, but do you really think the Association
should be held libel for "damages" because someone was drunk on the
lake? If that is true, couldn't we hold the C of E's responsible for
"damages" due to all DUI's and any other accidental deaths on lakes
under their control?

While the reward would not be as great, we could also sue any and all
lake owners if someone drowned in their private lake even if the victim
or the one responsible for the death was trespassing. After all a
lake should be fenced in to prevent people from trespassing, it really
is an attractive nuisance.

Now if, as Chuck said, the Association ran a club on the lake and served
the individual alcohol that contributed to the person being drunk, I
think they should be held responsible, but not just because they have
set up an Association to set up and enforce covenants for the lake.

I was posting a bit tongue-in-cheek..... attorneys tend to list, as a
defendant, everybody-on-earth that ever-had anything-to-do with
whatever-it-was seeking the deepest pockets.

It appears to me that these Lake Associations both control who is or
is not on the lake and have and enforce their own laws (which are most
likely a subset of the local and/or state laws). If I am correct on
that point (though not an attorney) I suspect that the plaintiff has a
pretty good case and will likely prevail in court. (I suspect that the
question will surround whether the victims of the accident had a
reasonable expectation of safely enjoying a privately controlled and
regulated lake.)

Again, don't miss the point that this is all CIVIL litigation made
possible by people who willingly signed on the dotted line and exposed
themselves to the potential hazards of being a defendant in any future
litigation. Lawsuits (nor associations) don't just work in one
direction.

If you are a member of any of these associations, bear in mind that
the association can both sue and be sued. If not properly
incorporated, your personal involvement with the association may have
exposed you to personal risk.

It will be interesting to see how this is finally resolved......


Gene,
I agree with everything you said except your interpretation of what is
reasonable expectations of what is the Associations responsibility in
controlling whom has access to use the Associations property. I would
hate to think an HOA would be responsible for a DUI on a street owned
and maintained by a HOA.

ps - Many (I would think most) HOA and the BOD's have insurance to
protect the Association and the BOD's from lawsuits. I know our little
condo HOA has an $5 M of insurance policy.

On Sep 6, 8:50?am, Gene Kearns
wrote:
On Thu, 06 Sep 2007 07:32:28 -0400, Reginald P. Smithers III penned
the following well considered thoughts to the readers of rec.boats:





Gene Kearns wrote:
On Wed, 5 Sep 2007 21:10:10 -0400, Bill Kearney penned the following
well considered thoughts to the readers of rec.boats:

That's bull****, trying to sue the association too. Money grubbing children
trying to score the lottery.

I disagree... at least, in principle... what is the purpose of a
"Lake Association" other than the purpose of social engineering.

If the "association" has failed to control the thoughts and behaviors
of one of its minions.... it should be held accountable..... and so
should all of the people (the "Association") that felt they could
control the actions of others........

Ditto all of those other "Associations" a la HOA.....

.... Go Figure.....

Gene,
I know you don't like HOA's, but do you really think the Association
should be held libel for "damages" because someone was drunk on the
lake? If that is true, couldn't we hold the C of E's responsible for
"damages" due to all DUI's and any other accidental deaths on lakes
under their control?

While the reward would not be as great, we could also sue any and all
lake owners if someone drowned in their private lake even if the victim
or the one responsible for the death was trespassing. After all a
lake should be fenced in to prevent people from trespassing, it really
is an attractive nuisance.

Now if, as Chuck said, the Association ran a club on the lake and served
the individual alcohol that contributed to the person being drunk, I
think they should be held responsible, but not just because they have
set up an Association to set up and enforce covenants for the lake.

I was posting a bit tongue-in-cheek..... attorneys tend to list, as a
defendant, everybody-on-earth that ever-had anything-to-do with
whatever-it-was seeking the deepest pockets.

It appears to me that these Lake Associations both control who is or
is not on the lake and have and enforce their own laws (which are most
likely a subset of the local and/or state laws). If I am correct on
that point (though not an attorney) I suspect that the plaintiff has a
pretty good case and will likely prevail in court. (I suspect that the
question will surround whether the victims of the accident had a
reasonable expectation of safely enjoying a privately controlled and
regulated lake.)

Again, don't miss the point that this is all CIVIL litigation made
possible by people who willingly signed on the dotted line and exposed
themselves to the potential hazards of being a defendant in any future
litigation. Lawsuits (nor associations) don't just work in one
direction.

If you are a member of any of these associations, bear in mind that
the association can both sue and be sued. If not properly
incorporated, your personal involvement with the association may have
exposed you to personal risk.

It will be interesting to see how this is finally resolved......

--

Grady-White Gulfstream, out of Oak Island, NC.

Homepagehttp://pamandgene.idleplay.net/

Rec.boats at Lee Yeaton's Bayguidehttp://www.thebayguide.com/rec.boats
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------------------ Hide quoted text -

- Show quoted text -

I was once asked to serve on the board of a yacht club.I found out the
club had no D&O (directors and officers) indemnity insurance- and we
cured that almost immediately. IMO, nobody should ever serve as a
board member or officer in any organization or corporation without
sufficient D&O insurance to cover the asse(t)s of the folks
responsible for defining and enforcing policies. Obviously in this
particular case the plaintiff has suffered a serious and irreversible
loss and if justice prevails he will be awarded something in return---
but it's a tough break when volunteer board members or even individual
club members are named in a lawsuit concerning a situation to which
they weren't acutally a party.

Chuck Gould wrote:
Obviously in this
particular case the plaintiff has suffered a serious and irreversible
loss and if justice prevails he will be awarded something in return---
but it's a tough break when volunteer board members or even individual
club members are named in a lawsuit concerning a situation to which
they weren't acutally a party.


Chuck,
What happened in this case that the Lake Association responsible for the
actions of a drunk boater?

According to the lawsuit: The association, the lawsuit says, allowed
Tonn to drive drunk, failed to monitor and
control watercraft on the lake, failed to ensure that boaters complied
with the
Nebraska Safe Boating Act and allowed unsafe boat operation though they
had knowledge
it was going on.

This seems like a very general claim, trying to negotiate a settlement.

Should all government and private authorities be held responsible for
the damages caused by those boating while under the influence? If so it
will result in all of us paying a much higher expense to use our
favorite boating area.

Insurance class in the early 1980s. The Instructor told what he said
was a true story, paraphrased as follows:

Guy starts to drive home from work one day. His brakes go out so he
stops at a shop. Shop says line is broken to one wheel & they have to
order parts. Guy convinces them to plug off the line to that wheel so
the rest work and he goes on. Stops at a friend's house and has
"several" drinks. Proceeds on to a bar and has "several" more. Cops
notice him driving erratically and attempt to pull him over. He tries
to get away & cops chase. High speed chase through town. Driver tries
to beat a train at a crossing & loses. Train hits the car, killing the
driver. Car flies through the air ands ends up hitting a phone booth
(remember those) killing the guy making a phone call. The guy who was
making the call's family sues. As always they sue everyone in sight.
Big payout in the wrongful death suit. Who paid the vast majority?????










Wait for it....







The phone company. Supposedly they shouldn't have placed a phone booth
where a flying car that just got a full hit by a train would hit the
booth. The reality though was that the driver was poor and had no
insurance, the shop was a little one guy almost shade tree operation,
the "friend" that served drinks had no insurance, the bar was pretty
small and the town was a little poor southern burg, so the phone
company and train company were the only deep pockets and AT&T at the
time was still the huge monopoly with the deepest pockets around. It
doesn't really matter who was at fault when an American jury decides
someone deserves to have hit the lottery.

Dave Hall

On Thu, 06 Sep 2007 08:15:35 -0400, DownTime
wrote:

Bill Kearney wrote:
That's bull****, trying to sue the association too. Money grubbing children
trying to score the lottery.

I am no lawyer, but I recall from a Business Law class, the instructor,
who also happened to be a local judge, commented about a similar
scenario. This is para-phrased as it's been a few years, but the concept
is spot on: "It is not always a matter of who is right or wrong, but who
or what entity in the chain has the most money".

We has been discussing a product liability case in which the local shop
that sold the product to the consumer, along with EVERY company with any
involvement in the processing & production was named in the lawsuit.

On Thu, 06 Sep 2007 12:15:41 -0400, Reginald P. Smithers III penned
the following well considered thoughts to the readers of rec.boats:

Gene Kearns wrote:
On Thu, 06 Sep 2007 07:32:28 -0400, Reginald P. Smithers III penned
the following well considered thoughts to the readers of rec.boats:

Gene Kearns wrote:
On Wed, 5 Sep 2007 21:10:10 -0400, Bill Kearney penned the following
well considered thoughts to the readers of rec.boats:

That's bull****, trying to sue the association too. Money grubbing children
trying to score the lottery.
I disagree... at least, in principle... what is the purpose of a
"Lake Association" other than the purpose of social engineering.

If the "association" has failed to control the thoughts and behaviors
of one of its minions.... it should be held accountable..... and so
should all of the people (the "Association") that felt they could
control the actions of others........


Ditto all of those other "Associations" a la HOA.....

.... Go Figure.....

Gene,
I know you don't like HOA's, but do you really think the Association
should be held libel for "damages" because someone was drunk on the
lake? If that is true, couldn't we hold the C of E's responsible for
"damages" due to all DUI's and any other accidental deaths on lakes
under their control?

While the reward would not be as great, we could also sue any and all
lake owners if someone drowned in their private lake even if the victim
or the one responsible for the death was trespassing. After all a
lake should be fenced in to prevent people from trespassing, it really
is an attractive nuisance.

Now if, as Chuck said, the Association ran a club on the lake and served
the individual alcohol that contributed to the person being drunk, I
think they should be held responsible, but not just because they have
set up an Association to set up and enforce covenants for the lake.

I was posting a bit tongue-in-cheek..... attorneys tend to list, as a
defendant, everybody-on-earth that ever-had anything-to-do with
whatever-it-was seeking the deepest pockets.

It appears to me that these Lake Associations both control who is or
is not on the lake and have and enforce their own laws (which are most
likely a subset of the local and/or state laws). If I am correct on
that point (though not an attorney) I suspect that the plaintiff has a
pretty good case and will likely prevail in court. (I suspect that the
question will surround whether the victims of the accident had a
reasonable expectation of safely enjoying a privately controlled and
regulated lake.)

Again, don't miss the point that this is all CIVIL litigation made
possible by people who willingly signed on the dotted line and exposed
themselves to the potential hazards of being a defendant in any future
litigation. Lawsuits (nor associations) don't just work in one
direction.

If you are a member of any of these associations, bear in mind that
the association can both sue and be sued. If not properly
incorporated, your personal involvement with the association may have
exposed you to personal risk.

It will be interesting to see how this is finally resolved......


Gene,
I agree with everything you said except your interpretation of what is
reasonable expectations of what is the Associations responsibility in
controlling whom has access to use the Associations property. I would
hate to think an HOA would be responsible for a DUI on a street owned
and maintained by a HOA.

ps - Many (I would think most) HOA and the BOD's have insurance to
protect the Association and the BOD's from lawsuits. I know our little
condo HOA has an $5 M of insurance policy.

$5M in a wrongful death lawsuit would be a pittance.

The charge that, "[The Association] allowed Tonn to drive drunk,
failed to monitor and control watercraft on the lake, failed to ensure
that boaters complied with the Nebraska Safe Boating Act and allowed
unsafe boat operation though they had knowledge it was going on."
leads me to believe that there were association rules that were not
enforced. (I'm making an assumption that the association had rules
concerning safety.)

Though I don't know which lake this was, I strongly suspect that the
association had rules governing safe boating.... similar to these:
http://www.capitolbeachlake.com/Rules/BoatViolation/

IMHO.... there are going to be a lot of litigants that will wish they
had never heard of a "lake association" before this is all over
with.....

As for your analogy.... I think a better one would be....
Your HOA has a restriction against painting houses passionate pink and
growing weed gardens,
Your neighbor has a passionate pink house with a 13 foot tall weed
garden for a front lawn,
The HOA has not enforced their own rules,
You need to sell your house, but can get no buyers because of the
neighbor, therefore you (rightfully) sue for damages and/or
remediation from the HOA.

similar to:

Your lake association has safety rules,
Your neighbor(s) break the safety rules,
The lake association doesn't enforce the rules,
Somebody is harmed and seeks to sue.....

I don't know for sure, but I suspect that this is where the situation
is headed..... and none of it could have happened without the
artificial construct of the "lake association."

--

Grady-White Gulfstream, out of Oak Island, NC.

Homepage
http://pamandgene.idleplay.net/

Rec.boats at Lee Yeaton's Bayguide
http://www.thebayguide.com/rec.boats
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Gene Kearns wrote:
r to these:
http://www.capitolbeachlake.com/Rules/BoatViolation/

IMHO.... there are going to be a lot of litigants that will wish they
had never heard of a "lake association" before this is all over
with.....

As for your analogy.... I think a better one would be....
Your HOA has a restriction against painting houses passionate pink and
growing weed gardens,
Your neighbor has a passionate pink house with a 13 foot tall weed
garden for a front lawn,
The HOA has not enforced their own rules,
You need to sell your house, but can get no buyers because of the
neighbor, therefore you (rightfully) sue for damages and/or
remediation from the HOA.

similar to:

Your lake association has safety rules,
Your neighbor(s) break the safety rules,
The lake association doesn't enforce the rules,
Somebody is harmed and seeks to sue.....

I don't know for sure, but I suspect that this is where the situation
is headed..... and none of it could have happened without the
artificial construct of the "lake association."

Gene,

This is going to be an interesting case study. The complaint is worded
similar to many lawsuit, and the wording may or may not actually
represent the actual situation on the lake or the law considers
reasonable performance and enforcement by the Association.

You do understand that the lake association had no employee, no income
and no annual expenses (according to their non profit report submitted
to the state), so I would like to know how the attorney is going to
prove that the "Association" (ie the homeowners/BOD's) "KNEW" that the
driver of the boat (or any other boater on the lake) was drunk and
failed to enforce the rules.

We have public streets and lakes with paid enforcers of the rules, and
on any day/night you will find many people who are DUI, many who are not
caught by the police and have accidents. It would seem that if our
local governments / officials are not able to prevent rules being broken
it is hard to imagine that any association would be able to ensure 100%
compliance of state laws. Is it reasonable to assume that a non profit
association without any employees and budget would be able to do better
than our paid police forces?

As you said it will be interesting to see how it is settled.

On Thu, 06 Sep 2007 17:33:38 -0400, Reginald P. Smithers III penned
the following well considered thoughts to the readers of rec.boats:

Gene Kearns wrote:
r to these:
http://www.capitolbeachlake.com/Rules/BoatViolation/

IMHO.... there are going to be a lot of litigants that will wish they
had never heard of a "lake association" before this is all over
with.....

As for your analogy.... I think a better one would be....
Your HOA has a restriction against painting houses passionate pink and
growing weed gardens,
Your neighbor has a passionate pink house with a 13 foot tall weed
garden for a front lawn,
The HOA has not enforced their own rules,
You need to sell your house, but can get no buyers because of the
neighbor, therefore you (rightfully) sue for damages and/or
remediation from the HOA.

similar to:

Your lake association has safety rules,
Your neighbor(s) break the safety rules,
The lake association doesn't enforce the rules,
Somebody is harmed and seeks to sue.....

I don't know for sure, but I suspect that this is where the situation
is headed..... and none of it could have happened without the
artificial construct of the "lake association."

Gene,

This is going to be an interesting case study. The complaint is worded
similar to many lawsuit, and the wording may or may not actually
represent the actual situation on the lake or the law considers
reasonable performance and enforcement by the Association.

You do understand that the lake association had no employee, no income
and no annual expenses (according to their non profit report submitted
to the state), so I would like to know how the attorney is going to
prove that the "Association" (ie the homeowners/BOD's) "KNEW" that the
driver of the boat (or any other boater on the lake) was drunk and
failed to enforce the rules.

We have public streets and lakes with paid enforcers of the rules, and
on any day/night you will find many people who are DUI, many who are not
caught by the police and have accidents. It would seem that if our
local governments / officials are not able to prevent rules being broken
it is hard to imagine that any association would be able to ensure 100%
compliance of state laws. Is it reasonable to assume that a non profit
association without any employees and budget would be able to do better
than our paid police forces?

As you said it will be interesting to see how it is settled.

That is the sad thing about laws..... they only punish..... they are
powerless to prevent.

Frankly, I have no information on the association, at all. If you have
a link, I'd like to read more.....

--

Grady-White Gulfstream, out of Oak Island, NC.

Homepage
http://pamandgene.idleplay.net/

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Gene Kearns wrote in
news
On Thu, 06 Sep 2007 06:49:16 GMT, akheel penned the following well
considered thoughts to the readers of rec.boats:

"Bill Kearney" wkearney-99@hot-mail-com wrote in
:

Article link:
http://www.omaha.com/index.php?u_pag...u_sid=10124181

Published Wednesday | September 5, 2007
Lawsuit filed in fatal Sarpy boat crash
BY JOE DEJKA
WORLD-HERALD STAFF WRITER

The son of a couple killed in a Sarpy County boating accident has
filed a wrongful-death lawsuit against the boat driver and the
private
lake association.

Authorities say Kenneth Tonn was under the influence of alcohol July
15 while operating the boat that struck and killed David and Kathleen
Gilfillan of Bellevue on Hanson Lake No. 2.

Scott Gilfillan of Peoria, Ariz., on behalf of his parents' estate,
is
suing Tonn as well as the Eastern Sarpy County Lake Improvement
Association, alleging the association had a duty to keep the lake
safe
for everyone on the water.

The lawsuit seeks funeral expenses and unspecified damages for loss
of
comfort and companionship.

Tonn, 60, declined to comment Tuesday on the lawsuit.

Attempts to reach the association for comment were unsuccessful.

Tonn is charged in Sarpy County Court with manslaughter in the death
of Kathleen Gilfillan, 57. He also is charged with second-degree
assault in connection with injuries to David Gilfillan, 61, who died
11 days later. The Sarpy County attorney is seeking to upgrade that
charge to manslaughter.

Tonn, who lives at the lake, had a blood-alcohol level of .177
percent
— more than twice Nebraska's legal limit of .08 percent — at the time
of the crash, authorities have said.

The couple's son and two daughters are "devastated," their attorney,
Timothy O'Brien, said Tuesday.

"Like any tragedy, they're dealing with it best they can," O'Brien
said.

According to the lawsuit filed last week in Sarpy County District
Court, David and Kathleen Gilfillan were seated on the rear of a boat
beached on shore when Tonn lost control of his boat and struck them.

Tonn was steering a 16-foot white 1974 Invader motorboat through a
channel about 265 feet wide, with boat docks jutting out on either
side.

He was towing a raft on which his wife and 10-year-old granddaughter
were riding. The rope became entangled on the boat, and Tonn
apparently turned away from the boat controls for 10 to 15 seconds,
authorities said.

The lawsuit alleges that Tonn failed to keep a proper lookout,
operated a boat while drunk and failed to control the boat.

It also alleges that the deaths occurred as a direct result of the
lake association's negligence.

The association, the lawsuit says, allowed Tonn to drive drunk,
failed
to monitor and control watercraft on the lake, failed to ensure that
boaters complied with the Nebraska Safe Boating Act and allowed
unsafe
boat operation though they had knowledge it was going on.



The only thing the association is guilty of is having money and/or
insurance.

They have claimed to the Federal Government that they have no money.
What do you know about their insurance?


Actually, I know nothing about the association. I just know the lawyer
wouldn't have sued them if he didn't think they had somoething. That's
how it works. It's called deep pockets. If it turns out that the
assocation has little or nothing, the lawyer will settle with them fast,
or he or she will threaten and/or actually pursue the individual
homeowners alleging that they are guilty for not adequately funding the
association to do it's duty. All of this is bull of course, but judges
watch TV just like the rest of us and fall into the "for every wrong,
there must be a remedy" syndrome, no matter how remote the
responsibility.

On Tue, 11 Sep 2007 06:20:57 GMT, akheel penned the following well
considered thoughts to the readers of rec.boats:



Actually, I know nothing about the association. I just know the lawyer
wouldn't have sued them if he didn't think they had somoething. That's
how it works. It's called deep pockets.

You are missing one obvious possibility. The deep pockets may well
belong to the plaintiff. I'm sure the attorney won't care where the
money comes from..... as long as he gets paid.

However, you do point out that these groups assembled by a concurrence
of wills form these associations thinking of a one way street. They
exist for the purpose of bringing suit against others.... and in this
case, are likely to receive their comeuppance.

--

Grady-White Gulfstream, out of Oak Island, NC.

Homepage
http://pamandgene.idleplay.net/

Rec.boats at Lee Yeaton's Bayguide
http://www.thebayguide.com/rec.boats
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