The Truth About Dive Releases, Part II

This is the second in a two-part installment on how the courts rule when an injured diver, seeking redress, has signed a release agreeing to hold the dive operator harmless.

Releases that offend important social interests are unenforceable, but most courts conclude divingrelated waivers are valid because they do not implicate public policy concerns. Unlike food or medical care, for example, diving is not essential and many judges (probably those who don’t dive) view it as inherently dangerous. The outcome is generally different when releases purport to exonerate a person from his or her “gross negligence” or conduct involving an extreme risk while it overlooks the likelihood of causing grave harm.

A Hawaiian case involving Pacific Adventures is illustrative. In January 1997, the Kai Nalu, a vessel owned by Tropical Hydro in Maui, took Stacey Courtney and Jeff Jensen, her fiancé, to Shark Fin Rock near the Island of Lanai. Leslie Farnel, owner of Tropical Hydro, captained the boat. Bradley Stafford served as dive guide. On the same day, the Rainbow Chaser, owned by Pacific Adventures, took a group of snorkelers to Shark Fin Rock. The boats anchored near each other. As Courtney, Jensen, and Stafford were completing their dive, the Rainbow Chaser was leaving the area. Courtney’s leg became entangled in its starboard propeller. She suffered serious injuries, including extensive lacerations, severed arteries, veins, tendons and nerves; and many broken bones. She sued. Under Hawaii law the “public interest is at stake” when someone attempts “to exempt himself for harm caused by gross negligence.” Consequently, such a release is void, and, absent intent to sever defective portions, “invalid in its entirety.”

Indeed, releases may not excuse performance that falls “woefully short” of minimally acceptable standards. Michael Turnbough was completing his open-water dives with instructor Janet Ladner in Panama City, Florida. After two dives Saturday and two Sunday he began to feel bends symptoms, but he waited to seek treatment for five days. He sued, charging Ladner was negligent in planning dive depths and failing to make safety stops. Last year the court found that the waiver in Turnbough v. Ladner did not automatically exonerate an instructor who “negligently planned” dives and disregarded safety stops which “significantly increased the risk of decompression illness.” However, there was an important dissenting opinion. Noting Turnbough had “consumed several alcoholic beverages,” the judge said the opinion helps those who “recklessly ignore sober warnings,” sign agreements they do not intend to fulfill and then ask judges “to reward their dishonest and reckless behavior.”

Compare Newman v. Tropica Visions, Inc., where the PADI release stated the signor understood the risks, assumed “foreseen and unforeseen” dangers, and held the program and persons harmless for claims from this course “by me, or my family, estate, heirs or assigns.” Nevertheless, when Jean Newman died in a certification class in Lake Travis, Texas, her heirs sued, claiming negligence. Unfortunately for her beneficiaries, in 1993 the court ruled “negligence and gross negligence are not separable” and the pre-injury release absolved defendants of liability.

Other courts go even further. For example, Borden v. Phillips directly conflicts with Pacific Adventures. In 1995, Ken Borden died while participating in a PADI Advanced Open-Water course, taught by Donna Phillips, off Destin, Florida. The boat, the Manta Ray, was owned and captained by Timothy Phillips. Before the dive, both Donna and Timothy Phillips briefed Borden, saying if he surfaced and needed assistance, he should wave. If he could not reach the boat, he should swim to the “tag line” (a rope tied to the vessel with a flotation ball on the end) to pull himself to the boat. During the dive, Borden did get separated from the Manta Ray. As he had been instructed, he swam toward the tag line. Captain Phillips saw him wave his hand but tragically misinterpreted the gesture as an “OK” signal. Consequently, Phillips detached the tag line from the Manta Ray, so when Borden reached the line he was unable to pull himself into the boat. By the time the Manta Ray reached Borden, he had drowned, floating with his hand wrapped in the tag line.

Here, the judges were not troubled that the PADI waiver released defendants from any “ ‘gross negligence.’ The term ‘negligence’ as used in the release is not limited, and therefore should be construed as intending to encompass all forms of negligence, simple or gross, with only intentional torts being excluded.” Thus, the waiver was upheld.

Take it or leave it

In Mann v. Wetter, a student died during his first training dive. His estate alleged the instructor, whom Horizon Water Sports employed, acted negligently. This Oregon court, like most that face the issue, rejected the argument that the NASDS release was an invalid take-it-or-leave-it (i.e., “adhesion”) contract. While the defendant signed after the course began, if he objected to the waiver, he retained the option simply to discontinue training.

Likewise, in Marshall v. Blue Springs Corp., Danny Marshall executed an NASDS waiver “for any occurrence in connection with this diving class that may result in injury or death.” He also released the park for “any accidents or mishaps which may occur while scuba diving.” Preparing for his dive, he was on the floating dock putting on his fins when he slipped and fell, injuring his knee. He subsequently sued the school (Cincinnati Diving Center) and the park. The court found no evidence, he was forced to sign the release and explained he had other choices — finding a dive school that did not require releases or abandoning his quest for certification.

Of course, we divers might see that suggestion as disingenuous. Nearly all dive operations demand releases. The only real choice is sign or stay on land.

When Federal Law is Consulted

Following an accident, boat owners are obvious litigation targets. However, the Limitation of Liability Act, a federal statute (46 U.S.C.§ 183c), explicitly makes “null and void and of no effect” attempts to release “the manager, agent, master, or owner of any vessel transporting passengers between ports of the United States” from liability for injury from tort-like conduct. If this provision applies to recreational divers, waivers are probably invalid against boat owners or their agents.

Pacific Adventures, which was previously discussed, was the first case to use this Act to invalidate a recreational dive release. The court found that the statute covers all vessels used on lakes or rivers or inland navigation and negated the waiver though plaintiffs hired the boat “to transport them to and from the same port, and Section 183c applies to transportation between ports.” This decision immediately sparked criticism.

In fact, in Borden v. Phillips, where scuba students signed a release before the class, the court rejected the Pacific Adventures analysis, concluding the defendant was no longer a passenger when he entered the water. Moreover, as the crew’s alleged negligence in ignoring defendant’s distress signal “did not involve the operation or maintenance of the Manta Ray,” admiralty law did not nullify the release. Further, the court noted the statute — limited to owners, managers, agents or masters of a vessel transporting passengers — cannot apply to PADI, which falls outside all these categories. At least three other courts agree the federal statute is not applicable to diving.

In Shultz v. Florida Keys Dive Center, Inc., Patricia Shultz signed a document releasing defendants from liability for all claims, even for those arising out of negligence or gross negligence. The Dive Center’s boat, the Goody III , transported her, her husband Blaine, and their 13-year-old daughter, all certified divers, to the dive site. Not long after entering the water, the Shultzes surfaced, but found themselves too far away to swim back to the boat. The boat did not get to them immediately because it was waiting for other divers to reboard. The divemaster from the Goody III swam out to help the Shultzes, but Patricia Shultz became unconscious, and then died. Disregarding a release, her husband sued the Dive Center, its owners and employees in federal court. He asserted failure to provide proper warnings and negligently conducting the dive caused his wife’s death. The court said that by transporting divers from shore, defendants were “performing an activity traditionally performed by vessels.” As the Dive Center was not a common carrier, state law controlled. Because the release was valid in Florida, plaintiff’s claim was barred.

In Cutchin v. Habitat Curacao, plaintiff signed a document “purporting to release Habitat from liability for injury or death resulting from Habitat’s negligence.” When the plaintiff experienced decompression sickness, he sued the travel agent and the Netherlands Antilles Hotel, alleging the instructor told him to surface without decompressing, there were insufficient personnel and the employees did not administer necessary treatment. The federal statute —Section 183c — did not invalidate the release because it protected only passengers traveling “between ports of the United States or from a port of the United States to a foreign port.”

And in Thompson v. ITT Sheraton Corp ., a hotel guest signed a release agreeing to “hold harmless” Caribbean Water Sports, Inc. (CWS), “its employees, agents and its boats . . . from any and all liability for personal injury, property damage or wrongful death caused by negligence or gross negligence.” Nevertheless, when she suffered “serious and permanent injuries,” she sued, asserting the employee supervising the dive intentionally inflated her BC causing her to ascend to the surface which precipitated decompression sickness and gas embolism. Defendants contended this was a “private recreational enterprise, and defendants had the prerogative to refuse to allow Plaintiff to come along for the dive if she did not sign the release.” The fact that the injury occurred in the water was also significant. “The dive itself was not a customary stop-off in the journey, but a separate activity altogether . . . At the time of the alleged negligence, [plaintiff] was not a passenger but a scuba diver. ” Moreover, because the voyage . . . was outbound from Islamorada, and returned to the same port it could not satisfy the federal “between ports” requirement. Therefore, the waiver was valid.

Sometimes, a “special legal relationship” might preclude enforcement. Sydna Ann Spancake signed a waiver when she boarded the Belize Aggressor. During the trip, she participated in a fish feed, in which divers hand fed fish while being videotaped. A barracuda bit her hand, causing severe injury. She sued the Aggressor Fleet, (Spancakev. Aggressor Fleet) alleging that various acts of negligence onboard the Belize Aggressor resulted in the injuries to her hand. The Aggressor Fleet argued it was not the proper party to be sued: it has no corporate relationship with the Belize Aggressor, for which it acts merely as a travel agent. Furthermore, it denied liability for any negligent acts occurring while the plaintiff was under the control of Belize Aggressor’s employees. Spancake responded that Aggressor Fleet held itself out, and in fact operated, as the owner of the Belize Aggressor and should not be permitted to exonerate itself from its own negligence. The court disagreed and upheld the release, saying the connection must be between plaintiff and defendant. The link between defendants — the vessel and travel agent who arranged the fish feeding excursion — had no effect on validity of the release.

California Contradictions

Some courts find creative ways to circumvent waivers. In Scroggs v. Coast Community College District, in California, the defendant signed a release for himself and his heirs. Nevertheless, when he drowned, his widow filed a wrongful death action. Because this was “a separate and distinct right belonging to the heirs” which only arises at death, a defendant could not waive his widow’s right.

On the other hand, in Madison v. Superior Court, a California appellate court rejected a wrongful death action because the waiver was “clear, explicit and comprehensible” and notified the signer of the effect of executing the agreement.

Conclusion

Although laws and judicial interpretations vary from state to state and country to country, a diver ought to assume a waiver he or she signs is generally enforceable. So, think before you sign. Then, as always when diving, be careful and remember you are ultimately responsible for your own safety.

Phyllis Coleman is Professor of Law at Shepard Broad Law Center, Nova Southeastern University, Ft. Lauderdale, Fla. She received her NAUI certification in 1984 and has logged more than 200 dives since. Her favorite local dive spot is Minnow Cave in John Pennekamp State Park, Key Largo, Fla.