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Old September 25th, 2012, 14:37   #1
Ivanov
 
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Exclamation Airsoft & DND Members

Morning all, first a brief intro I run C4 the Cold Lake Airsoft Club and I have been blind sided by a problem that I don't quite know how to deal with. A DND member was recently injured while playing with our club. This resulted in a point being brought to my attention. From what I was told DND can hold the club and myself liable for the injury of the member in question. This dissension for DND to hold the club responsible is not up to the member, which is the biggest part of the problem. I spoke to the JAG and I was told the same thing. I'm looking for anyone with information or experience on this issue that will help me find a way resolve this. Right now I seem to have only two options, try and become a club under PSP, or ask all DND members to leave the club. If any one has information that can help please contact me, thank you.

Last edited by Ivanov; September 25th, 2012 at 15:00..
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Old September 25th, 2012, 15:05   #2
Brian McIlmoyle
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Blind sided?

This is what Commercial General Liability insurance is for. You do have it?

The DND has a lot of $ tied up in members.. you break em you bought em
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Old September 25th, 2012, 15:50   #3
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Are you running the game on private land?

If you are running the game on private land you maybe able to use the home insurance of the owner of the land in the event of a lawsuit. Also you could check with your home insurance company to see if you are covered as long as you are not running a business.

It is a big maybe tho. Most of the time they end up suing the owner of the land that the person was injured on.

Last edited by Cs; September 25th, 2012 at 15:53..
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Old September 25th, 2012, 16:31   #4
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I have never heard of this, though if the JAG said its true I would be inclined to believe them.

However,(assuming the injury is not VERY airsoft specific, say BB stuck under the skin or in the ear) Whats to say the mbr did not receive this injury while hiking, running, or one of numerous other activities over the weekend?

I would try and hold off with excluding CF members though, that's just not cool. If you have as many playing there as we do here, you would kill off the local community pretty fast.

Getting recognized by PSP would be awesome though.

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Old September 25th, 2012, 16:45   #5
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Quote:
Originally Posted by Brian McIlmoyle View Post
Blind sided?

This is what Commercial General Liability insurance is for. You do have it?

The DND has a lot of $ tied up in members.. you break em you bought em
Commercial General Liability doesn't cover injury to players or at least it doesn't in our clubs case. However I talked to my issuance provider after seeing your post to double check and it sounds like the JAG only gave me half the story. Apparently DND can't do anything unless I was negligent some how. IE, letting some one bring their C7 instead of an airsoft gun. It seems as long as every one is made aware of the risks of playing, and I ensure all the necessary safety precautions are in place, which is standard for any Airsoft club, are taken DND doesn't have a leg to stand on. I still need to get more clarification but if what I have discovered thus far is true this might not be nearly as big a problem as I thought. Sadly it seems the JAG is limited in what she can tell me since we don't have status as a PSP club yet so it will make things a little more difficult.



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Originally Posted by Cobrajr122 View Post

Getting recognized by PSP would be awesome though.
Actually I've been in talks with CFB Cold Lake about this for a while now. We have everything we need to go through with it we are just waiting on Ottawa to reply to the request and for PSP to finalize the remaining details. Once it's done I plan to post a "How To" guide for any one else wanting to start a PSP approved club.
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Old September 25th, 2012, 16:52   #6
Brian McIlmoyle
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Quote:
Originally Posted by Ivanov View Post
Commercial General Liability doesn't cover injury to players or at least it doesn't in our clubs case. .

SNIP

to post a "How To" guide for any one else wanting to start a PSP approved club.
CGL will cover for defense of claim.. if one is made.. but mostly informed consent is enough to protect you from such claims..

it's a good lesson regarding risk management though.. many game hosts never consider the risks
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Old September 25th, 2012, 17:01   #7
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I would assume as long as all the waivers were signed and witnessed that it puts the liability of injury on the player themselves, but I'm not the insurance guru in my family.
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Old September 25th, 2012, 17:18   #8
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I would assume as long as all the waivers were signed and witnessed that it puts the liability of injury on the player themselves, but I'm not the insurance guru in my family.
A personal Injury lawyer I know quite well told me " I've never seen a waiver I can't defeat in court"

anyone who sets themselves up as a host is a target for liability.. The risk for catastrophic injury in this activity is real and present.

Informed consent goes a long way to protect you from claims from players for anything but the most serious injuries. and insurance covers off the rest.. if you have it.
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Old September 25th, 2012, 17:35   #9
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Quote:
Originally Posted by Ivanov View Post
Morning all, first a brief intro I run C4 the Cold Lake Airsoft Club and I have been blind sided by a problem that I don't quite know how to deal with. A DND member was recently injured while playing with our club. This resulted in a point being brought to my attention. From what I was told DND can hold the club and myself liable for the injury of the member in question. This dissension for DND to hold the club responsible is not up to the member, which is the biggest part of the problem. I spoke to the JAG and I was told the same thing. I'm looking for anyone with information or experience on this issue that will help me find a way resolve this. Right now I seem to have only two options, try and become a club under PSP, or ask all DND members to leave the club. If any one has information that can help please contact me, thank you.
Quote:
CANFORGEN 061/09 CMP 027/09 061655Z APR 09

UNCLASSIFIED


REFS: A. CF HEALTH AND PHYSICAL FITNESS STRATEGY
B. CFAO 50-3



OVER THE PAST 18 MONTHS, THE CF HAVE PLACED GREAT EMPHASIS ON PHYSICAL FITNESS. THE SPORTS PROGRAM HAS TRADITIONALLY BEEN AN IMPORTANT MEANS OF IMPROVING AND MAINTAINING THE PHYSICAL FITNESS LEVELS OF CF MEMBERS.


IN RECOGNITION OF THE IMPORTANCE OF SPORT, THE FOLLOWING SPORTS WILL BE ADDED TO THE CF NATIONAL SPORTS PROGRAM EFFECTIVE IMMEDIATELY: GOLF, TRIATHLON, TAEKWONDO, SWIMMING, WOMEN S SOCCER AND THE CF ATHLETIC CHALLENGE WHICH WILL INCLUDE SPORTS ACTIVITIES SUCH AS SHOOTING, SWIMMING, RUNNING AND OBSTACLE RACE.


THE CF CISM SPORTS PROGRAM WILL ALSO BE EXPANDED TO INCLUDE FENCING AND MILITARY PENTATHLON


IN ADDITION REGIONAL DEVELOPMENT CAMPS WILL BE FUNDED AND GRANTED THE SAME STATUS AS REGIONAL CHAMPIONSHIPS FOR TRIATHLON, SWIMMING AND TAEKWONDO. REGIONAL DEVELOPMENT CAMPS WILL PROVIDE ATHLETIC AND COACHING DEVELOPMENT AND WILL ASSIST IN THE SELECTION OF ATHLETES FOR CF NATIONAL CHAMPIONSHIPS


EXTREME SPORTS WILL ALSO BE ADDED TO THE SPORTS PROGRAM. THE MEDIA USE THE TERM EXTREME SPORTS, ALSO CALLED ACTION SPORTS AND ADVENTURE SPORTS, TO DESIGNATE CERTAIN ACTIVITIES PERCEIVED AS HAVING A HIGH LEVEL OF INHERENT RISK OR DIFFICULTY AND OFTEN INVOLVING SPEED, HEIGHT, A HIGH LEVEL OF PHYSICAL EXERTION, AND HIGHLY SPECIALIZED EQUIPMENT


TO IMPLEMENT EXTREME SPORTS, REF B PARA 31 IS DELETED AND REPLACED BY THE FOLLOWING: QUOTE THE ENTRY OF INDIVIDUALS INTO CIVILIAN COMPETITIONS INCLUDING EXTREME SPORTS AND ACTIVITIES SHALL BE AUTHORIZED WHEN SUCH PARTICIPATION MAY BE EXPECTED TO BRING CREDIT TO THE CF. THE CONDITIONS AND APPROVING AUTHORITIES FOR PARTICIPATION IN CIVILIAN COMPETITIONS ARE CONTAINED IN ANNEX B. APPLICATION FOR APPROVAL SHALL BE SUBMITTED IN ACCORDANCE WITH APPENDIX 1 TO ANNEX B. IN NO CASE WILL PARTICIPATION IN CIVILIAN COMPETITIONS TAKE PRIORITY OVER THE DEVELOPMENT OF BASE PROGRAMS OR CONFLICT WITH PARTICIPATION IN CF REGIONAL OR NATIONAL CHAMPIONSHIPS. ADDITIONALLY APPLICANTS WHO WISH TO PARTICIPATE IN EXTREME SPORTS AND ACTIVITIES ARE REQUIRED TO PROVIDE THE FOLLOWING INFORMATION:

(A) A DETAILED RESUME OUTLINING THE MEMBERS EXPERIENCE, QUALIFICATIONS CERTIFICATIONS AND PREPAREDNESS RELATING TO PARTICIPATION IN THE SPORTS COMPETITION OR ACTIVITY IDENTIFYING POTENTIAL RISKS AND STEPS TAKEN TO MITIGATE THEM

(B) RESULTS OF A VALID CF FITNESS EVALUATION COMPLETED WITHIN SIX MONTHS OF THE COMMENCEMENT OF THE SPORTS COMPETITION OR ACTIVITY

(C) FOR COMPETITIONS OR ACTIVITIES THAT CONTAIN ANY WATER-RELATED SEGMENT, THE MEMBER MUST SHOW PROOF OF COMPLETING THE CF BASIC MILITARY SWIM STANDARD TEST WITHIN SIX MONTHS OF THE COMMENCEMENT OF THE SPORTS COMPETITION OR ACTIVITY

(D) A STATEMENT DESCRIBING HOW PARTICIPATION IN THE EXTREME SPORT OR ACTIVITY RELATES TO SERVICE AS A MILITARY MEMBER UNQUOTE

THE FOLLOWING IS A LIST OF EXTREME SPORTS AND ACTIVITIES THAT ARE NOT COVERED BY THIS POLICY:

(A) MOTORIZED SPORTING ACTIVITIES SUCH AS: RALLY, MOTOR RACING AND ULTRA LIGHT FLYING

(B) BOXING

(C) EXTREME COMBAT ACTIVITIES SUCH AS: ULTIMATE FIGHTING, MIXED MARTIAL ARTS

(D) HUMANITARIAN AND CHARITABLE PROJECTS

(E) ORGANIZED MILITARY MARCHES, E.G. THE NIJMEGEN MARCHES

(F) BUNGEE JUMPING


QUESTIONS SHOULD BE DIRECTED TO DGPFSS DSRM, JOHANNE THIBAULT AT 613-992-0424


THESE CHANGES SERVE TO STRENGTHEN THE CF S COMMITMENT TO PHYSICAL FITNESS AND HEALTH AS DETAILED IN THE CF HEALTH AND FITNESS STRATEGY


SIGNED BY MGEN W. SEMIANIW, CMP

Follow the directions in THE FOLLOWING IS A LIST OF EXTREME SPORTS AND ACTIVITIES THAT ARE NOT COVERED BY THIS POLICY:

(A) MOTORIZED SPORTING ACTIVITIES SUCH AS: RALLY, MOTOR RACING AND ULTRA LIGHT FLYING

(B) BOXING

(C) EXTREME COMBAT ACTIVITIES SUCH AS: ULTIMATE FIGHTING, MIXED MARTIAL ARTS

(D) HUMANITARIAN AND CHARITABLE PROJECTS

(E) ORGANIZED MILITARY MARCHES, E.G. THE NIJMEGEN MARCHES

(F) BUNGEE JUMPING


QUESTIONS SHOULD BE DIRECTED TO DGPFSS DSRM, JOHANNE THIBAULT AT 613-992-0424


THESE CHANGES SERVE TO STRENGTHEN THE CF S COMMITMENT TO PHYSICAL FITNESS AND HEALTH AS DETAILED IN THE CF HEALTH AND FITNESS STRATEGY


SIGNED BY MGEN W. SEMIANIW, CMP
This may help.
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Old September 25th, 2012, 17:46   #10
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This is a copy of a Bulletin published for Not for Profit and Charity Orgs. But It references the cases below of a Commercial business and a Liability waiver that was initially overturned then enforced by the BC Court of Appeals. It demonstrates that a Liability Waiver can protect a Co. from Law suit in instances of injury and death even in instances of negligence on the part of the organizer or its employee’s.

As it was described to me, the waiver can have in BOLD HUGE letters at the top and bottom in Common Language that you are aware you are engaging in an activity that involves Risk of injury or death and you will not sue the organiser. But before you go drafting one due Diligence is required, Dude I sell Pants not Legal advise.
Neat change.
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CHARITY LAW BULLETIN No.284

May 29, 2012
Editor: Terrance S. Carter

--------------------------------------------------------------------------------

Printer Friendly PDF

LIABILITY WAIVER UPHELD BY
B.C. COURT OF APPEAL

By Barry W. Kwasniewski*

A. INTRODUCTION
Liability waivers are familiar to most of us; we see them when we wish to go downhill skiing, participate in running races or engage in other activities that entail some risk of personal injury. Consumers are frequently required by service-providers to sign forms that release the service-provider from any liability for a consumer’s injury. Liability waivers are also often used by charities and not-for-profits as a legal liability shield, particularly where the organization is carrying out activities which may pose a risk of injury to participants. Over the years, there have been numerous cases across Canada where courts have been asked to determine the enforceability of liability waivers in a variety of circumstances. Most recently, the British Columbia Court of Appeal in Loychuk v. Cougar Mountain Adventures Limited[1] has affirmed that a properly drafted waiver, that is understood and signed by the participant, may even protect an organization from liability for serious injuries or even death caused by the negligence of its own employees.[2] This Charity Law Bulletin outlines this decision, which upheld a waiver releasing a zip-line operator from liability.

B. THE FACTS OF THE CASE
Cougar Mountain Adventures is a business that offers zip-line tours in Whistler, BC. The tours are conducted in groups and involve strapping a person into a harness and trolley and the trolley is sent down a line from a higher platform to a lower one. Guides are stationed on each platform and communicate with one another by walkie-talkie in order to determine when the next person should be sent down the line. This case was an action for damages brought by two participants in a zip-line tour, Deanna Loychuk and Danielle Westgeest, who were injured when they collided while travelling on the same zip-line.

Cougar Mountain Tours admitted that the accident was caused by the negligence of one of its employees, but argued that the plaintiffs had waived their causes of action when they signed liability waivers. Both plaintiffs read and signed the waivers of liability and understood that they would not be able to participate in the zip-line tour if they did not sign the waivers. They also both understood that in signing the waiver, they would be waiving the right to sue. However, both plaintiffs claimed to not have understood that they would be waiving the right to advance claims arising from the company’s own negligence.

C. THE DECISION OF THE LOWER COURT
The plaintiff’s lawsuit was initially dismissed at trial by the Supreme Court of British Columbia. The defendant successfully brought a summary trial application to have the action dismissed on the grounds that the liability waiver was a complete defence to the plaintiffs’ claims. In resisting the dismissal, the plaintiffs argued that the release was ineffective because it was:

1. Unenforceable on the grounds of misrepresentation by omission because a reasonable person would have known that the plaintiffs were not consenting to the terms at issue and the defendant failed to take steps to apprise them of the terms;

2. Unconscionable;

3. Invalidated by the Business Practices Consumer Protection Act (BPCPA) because of deceptive and /or unconscionable acts; and

4. Invalid because there was no “consideration.”[3]



The trial judge found that the defendant had taken the necessary steps to bring the contents of the waiver to the plaintiffs’ attention and that they had sufficient time to read it, that the waiver was not unconscionable because there was no duress, coercion or unfair advantage, and that the defendant had not deceived the plaintiffs or behaved unconscionably under the BPCPA. Finally, the trial judge held that there was adequate consideration to form a contract, the consideration being the defendant allowing the plaintiffs to participate in the activity. The trial judge therefore dismissed the action. The plaintiffs appealed this decision to the British Columbia Court of Appeal.

D. DECISION OF THE COURT OF APPEAL
The appellants (referred to herein as the plaintiffs) appealed the decision of the trial court on four grounds, alleging that the trial judge made following errors:

1. Holding that he was bound by previous authorities to conclude that the release was not unconscionable;

2. Finding that the waiver was not unconscionable under the BPCPA;

3. Failing to apply the reverse onus requirements of the BPCPA; and

4. Finding that there was consideration in exchange for signing the release.

In considering the unconscionability of the waiver, the Court first examined the status of the common law on the enforcement of waivers. This examination revealed that there is a well-established line of authority that releases in relation to recreational sports are not unconscionable, even when, as in this case, the activity is totally within the control of the service-provider. Further, the Court found that the principle demonstrated by these cases is “that it is not unconscionable for the operator of a recreational-sports facility to require a person who wishes to engage in activities to sign a release that bars all claims for negligence against the operator and its employees. If a person does not want to participate on that basis, then he or she is free not to engage in the activity.”[4]

The Court next considered whether there was an overriding public policy reason to not enforce the waiver. The plaintiff argued that it was against public policy to enforce a waiver that allowed service-providers to escape liability for injury and death resulting from negligence in sporting and recreational activities. The Court reviewed the Supreme Court of Canada’s decision in Tercon Contractors Ltd. v British Columbia (Transportation and Highways),[5] stating that the power to decline enforcement of a waiver must be rarely exercised in the interest of stability of contractual relations. The Court determined that in order to decline to enforce a waiver on the grounds of public policy, the party relying on the waiver must have “engaged in conduct so reprehensible that it would be contrary to the public interest to allow it to avoid liability”.[6] As these conditions were not present in this situation, the Court found that the waiver was not unenforceable on the grounds of public interest.

The Court then disposed of the ground of appeal relating to unconscionability under the BPCPA, finding that the elements to establish unconscionability were the same as under the common law discussed above. As such, the waiver was not unconscionable under the BPCPA, and that the defendant had met the reverse onus in this regard.

Finally, the Court considered the claim that the waiver was unenforceable for lack of consideration. The plaintiffs argued that they entered the contract to go on a zip-line tour at a different time than when they signed the waivers. They claimed therefore that when the signed the waiver, which is a contract, no consideration changed hands so the contract was not legally formed. The Court determined however that the consideration that the plaintiffs received was the ability to participate in the zip-line tour, which they did in fact do, albeit with unfortunate results.

E. CONCLUSION
This decision is important to charities and not-for-profits for two reasons. Firstly, it further increases the likelihood that a properly drafted and executed liability waiver will insulate service-providers from liability. However, it is important to note that this is a decision of the British Columbia Court of Appeal and is therefore influential, but not binding outside of that province. Secondly, this decision illustrates the importance of ensuring that a liability waiver is properly drafted and executed. The liability waiver was found to be enforceable by the trial judge and the Court of Appeal because it was clear, drew attention to the impact of the waiver in terms of liability of the service-provider, and gave the plaintiffs the opportunity to read and understand its terms. It is also noteworthy that the Court considered the plaintiffs’ capacity to understand the waiver. Where these conditions are not present, a liability waiver will be less likely to be legally enforceable if challenged.



--------------------------------------------------------------------------------

* Barry W. Kwasniewski, B.B.A., LL.B., practices employment and risk management law with Carters’ Ottawa office and would like to thank Michelle Thériault, B.Soc.Sci. J.D., Student-At-Law, for her assistance in the preparation of this Bulletin.

[1] 2012 BCCA 122 (released March 15, 2012).

[2] The decision of the lower court in the matter was addressed in Charity Law Bulletin No. 251, which is available at: http://www.carters.ca/pub/bulletin/c...1/chylb251.htm.

[3] “Consideration” is a legal component to a contract. It refers to the benefit or detriment that must be exchanged between parties to a contract in order for the contract to be valid.

[4] Loychuk, supra note 1 at para 40.

[5] 2010 SCC 4.

[6] Loychuk, supra note 1 at para 46.
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Old September 25th, 2012, 17:49   #11
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Secondly unless you make really really really good cash at this throw all the CF guys under the Bus till the JAG gives them paper work that says otherwise.

OH FFS you should have mentioned you are yourself in the CF, and you are playing on BASE and the guy got his teeth shot out!

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Old September 25th, 2012, 18:44   #12
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This is a textbook example why people should be sketched out about playing with minors.

Call the CF personal the kids & the DND their parent. You can see the outcome of giving a minor the bad touch.
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Old September 25th, 2012, 19:42   #13
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Secondly unless you make really really really good cash at this throw all the CF guys under the Bus till the JAG gives them paper work that says otherwise.

OH FFS you should have mentioned you are yourself in the CF, and you are playing on BASE and the guy got his teeth shot out!

I didn't think it would be appropriate to discuss the guy's injuries with out his consent. Any way, our club doesn't make much money at all. What ever we do make gets injected into club functions and upkeep, so what this is going to come down to I think is risk mitigation.

I realized from the get go that there will always be some risk to running an Airsoft club. At this point I might take up your suggestion and exclude the DND member until I can pry some more help out of the JAG.

I spoke with my Sgt. who has some experience with DND clubs and injuries and he told me as long as I take all necessary safety precautions DND will not come after me or the club. Which brings me back to my earlier post.

By the way, how'd you know about the teeth any way Armyissue? Well regardless thanks for all the information so far every one.

One last thing, I kind of made a mistake and placed this discussion under the wrong Forum section :banghead: Could an Admin move it to General, or FAQ, sorry and thanks
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Old September 26th, 2012, 13:27   #14
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Pre-caution is something you do before, not after.
Dude you posted on Facebook about Newton injuries then stated everyone needed to have full face masks and mouth guards.
50% of the players here are familiar with that type of injury, and 20% are sympathetic.
The rest are too fkn new to this game to appreciate the risk.
You are in the army so there's no contest to what the JAG wants to do.
You are also wearing Cadpat while participating in non-approved training excercises, That will draw you a smack from the Code Of Conduct as well. I'm not bitter, I'm being Blunt.

What is interesting in this case is that the CF will now have to create a policy specifically dealing with Airsoft injuries and formulate rules about it. Up till now the CF has un-officially looked at Airsoft as a Benificial and in-expensive Training tool. Now it's being force to officially deal with the potential damage it can cause to the soldiers. They were going to have to look at it sooner or later.
Picture Airsoft is a big thermometer that can be take Orally or Anally, you just shoved it up their ass without Warning or Lube.


They will be tracing this up the wrong way and looking at damage control instead of the benifits.

These are things you probly haven't considered yet.
There are a lot of CF members here who play AS recreationally. They may be affected by the JAG's decisions. They may have some information that could be benificial to the JAG's investigation. There are also a lot of Players here who are a lot smarter than the JAG who could help.
There's even a Personal Injury Lawyer in here who could help Newt. If you think I'm spilling the Beans here, you did it on Facebook first, we at least can help.
Not me though, Dude, I sell Pants!
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Old September 26th, 2012, 14:55   #15
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To be honest I thought I had all this squared away. I assumed that i had been proactive enough and had all my bases covered, but in the end I still failed miserably. Worse yet it took something like this happening for me to realize I had missed something. Now while trying to learn more about this situation I have made the matter even worse and now I may have gone and dragged the whole airsoft community into this. Regardless I got all my questions answered save one, and that was, whether or not DND would come knocking on the club door for every stubbed toe or only significant injuries. I would assume it would only be for major things such as what happened to Newton. Regardless there's nothing I can do for now.
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