No matter what operation you
dive with these days, it’s almost
certain you’ll be asked to sign a
waiver, most likely saying that you
will be unable to hold the operator
responsible for any accident,
no matter what role he has in it.
Period. You’ll be handed a waiver
if you take an advanced certification
class, take a tank off the
beach in Bonaire, or travel on a
live-aboard. And, whether you like
it or not, most often these waivers
hold up in court.
This is the last of a three-part
series on the difficulty injured
and deceased divers face in
bringing lawsuits, based in large
part on research conducted by
Phyllis G. Coleman, Professor of
Law at Nova Southeastern University
in Fort Lauderdale; it appeared
in the Journal of Maritime
Law and Commerce.
Although they are strictly
construed, a well-drafted preaccident
waiver or release will
absolve a defendant from liability
in a diving case if he can show: 1)
the clause was knowingly agreed
to and clearly spelled out the
dangers of diving (i.e., there was
informed consent); 2) the clause
was not inconsistent with public
policy; and, 3) the clause does not
constitute an invalid adhesion
contract.
For example, in Mitchell v.
Lang Sales, after signing a release,
the decedent drowned after
becoming entangled in guide
lines set by a defendant. Her
husband sued. In upholding the
release, the court noted the clear
language of the release coupled
with the inherent risks of diving,
the “voluminous instructional
materials” concerning dangers associated with diving defendants
gave to decedent, and the fact
that decedent was in an advanced
course, “point towards an intelligent
and informed consent to the
release.”
“And, whether we like it
or not, it appears that
most often these waivers
hold up in court.” |
Similarly, in Baschuk v. Diver’s
Way Scuba, the court rejected
plaintiff’s claim that the release
she had signed applied only to
negligence during actual class
participation. She failed to inform
her instructor about her history
of ear problems before she
submitted the release form. Once
she told him, the instructor told
her to obtain medical approval to
dive but he neglected to follow up. When she suffered a punctured
eardrum during the fourth
class, she sued. According to the
court, the record shows that the
liability release signed by the
plaintiff in clear and unequivocal
language expressed the intent to
relieve the defendant of all
liability for personal injuries to
the plaintiff caused by the
defendant’s negligence. The
liability release was enforceable.
In Hewitt v. Miller, the court
upheld a release signed by
decedent before enrolling in an
advanced scuba class. Following
his disappearance without a trace
during the class’ second dive,
defendants denied liability based
on the release. The court agreed,
finding the language, which was
unambiguous and conspicuous,
clearly covered this type of
accident.
Just how detailed a release or
waiver must be to qualify as
“unambiguous” is unclear.
However, as Whitlock v. Duke
University shows, a form will not
automatically be insufficient
simply because it does not list
every type of danger. Plaintiff
participated in an experimental
simulated deep dive and, as a
result, suffered permanent brain
damage. Claiming he had not
been warned about such a
possibility, he sued the parties
who conducted the experiment.
In granting defendants’ motion
for summary judgment, the court
found that, although the form
failed to warn about brain damage,
there was no evidence that there was a “reasonably foreseeable
... risk of brain damage
different from that normally
associated with decompression
and unique to experimental deep
diving.”
On the other hand, a release
that fails to express the parties’
intent “in unmistakable language”
will not be upheld. In Stoll v.
Niagara Scuba Sports, the appellate
court held that summary judgment
should not have been
granted where defendant’s release
was vaguely worded and there
were questions whether plaintiff
was “fully advised of the potential
dangers” involved in diving.
Likewise, in Reuther v. Southern
Cross Club, plaintiff had signed a
form releasing defendant “from
any and all claims.” The court
held this wording did not necessarily
provide protection for
injuries suffered on the Club’s
boat en route to the dive site.
Even when a release is clear,
however, some courts refuse to
enforce them because to do so
would violate important social
interests. In particular, courts are
concerned that recreational
business owners, immunized by
broad releases, would lose their
incentive to take safety precautions
and obtain sufficient
insurance even though, relative to
their customers, they are in the
best position to act. Likewise, if a
special legal relationship exists
between diver and defendant,
some courts have found the
relationship provides a basis to
deny enforcement of the release.
Several plaintiffs have sought
to invalidate their releases on the
ground that they represent
inequitable adhesion contracts.
For the most part, such arguments
have failed.
In Marshall v. Blue Springs
Corp., for example, plaintiff had
signed a release “for any occurrence
in connection with this
diving class that may result in
injury or death.” To complete the
course, he was required to sign an
additional waiver releasing the
park where the dive was to take
place for “any accidents or mishaps which may occur while
scuba diving. . . .” Despite these
waivers, plaintiff sued both the
school and park when he injured
himself while attempting to put
on his fins in preparation for a
dive. In dismissing the suit, the
court rejected the argument that
the releases were adhesion
contracts. Finding no evidence he
had been forced to sign the
forms, the court pointed out the
plaintiff could have pursued other
options. Such as looking for a
course or dive site that did not
require releases or abandoning
his quest for scuba certification.
Coleman notes, however, that
a valid release will probably not
absolve a defendant of gross
negligence.
In conclusion, you never have
to sign a release, but then you
most likely won’t get to dive. You
may try to modify the release, but
you may not be successful.
Basically, when you go diving
assume the responsibility is yours,
yours entirely, and enjoy the dive.
But, dive safely.
— Ben Davison