Dive shop waivers

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IANAL, but my understanding is that those clauses are fairly typical. It's also my understanding that they also aren't very enforceable. Businesses just count on people thinking they can't sue because they (or their family member) signed the waiver.
Yeah I think you're right. Like the sign in the parking lot saying not responsible if stuff is stolen from your car. I believe in most cases they are--it's their property.
Some here disagree. I'm certainly no lawyer.
There are a few threads on this and some on how responsible dive pros are when they are on a boat just diving for pleasure. I think each case is different. In both situations I think it all depends on what you/they do or don't do when the accident/incident is created.
 
In the signature bit I scrawl, Yeah Right, and sign their back aboard checklists with a scratchy X
 
I wish people would quit repeating this. It's not remotely true. While the exact details vary from state to state, a waiver is an enforceable contract in all 50 US states.

You can't sign away your right to sue, but waivers can certainly prevent you from winning the suit. Waivers do have limitations, for example they cannot normally excuse gross negligence or willful misconduct. But when it comes to voluntary recreational activities, waivers of a participant's right to collect damages for injuries due to ordinary negligence are enforceable.

That's why the waivers exist. Insurance companies know they work and thus insist on them as a requirement for writing liability policies.

These articles provide a decent overview:
- The ABCs of Liability Waivers -- Risk Management
- LIABILITY WAIVERS & RELEASES OVERVIEW, CAN YOU SAY "EXCULPATORY AGREEMENT"?

Wrong, they don't cover negligence at all.

They mearly meet the duty to warn so you can't sue because you were not warned of the danger. Negligence is entirely different.
 
If you are diving anywhere in SE Asia, no signing = no diving.
And there is NO chance that any operator will accept an X on the dotted line!
In many cases I have to initial nearly several times on several papers!
 
Wrong, they don't cover negligence at all.

They mearly meet the duty to warn so you can't sue because you were not warned of the danger. Negligence is entirely different.

I was looking into this a while back based on another post about waivers and found the information below published by MATTHIESEN, WICKERT & LEHRER, S.C. The document lists information for each state and is current as of 1/5/2021.

It is a much longer article linked here:

https://www.mwl-law.com/wp-content/...ORY-AGREEMENTS-AND-LIABILTY-WAIVERS-CHART.pdf

In at least 46 states, a well-written, properly administered waiver, voluntarily and knowingly signed by an adult, can protect the drafter of the waiver from liability for injuries resulting from ordinary negligence. Not all waivers, however, are well-written and properly administered. Some states, such as Louisiana, Montana, and Virginia, simply refuse to enforce such exculpatory agreements. Twenty (20) states have very strict standards which must be adhered to for an exculpatory agreement to be effective. These include Alaska, Arizona, Arkansas, California, Connecticut, Delaware, Hawaii, Indiana, Kentucky, Maine, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New York, Pennsylvania, Utah, Vermont, and Wisconsin. Sixteen (16) states have more moderate standards for such an exculpatory clause to be valid. They include Colorado, District of Columbia, Florida, Idaho, Illinois, Iowa, Minnesota, New Mexico, North Carolina, Oklahoma, Oregon, South Carolina, South Dakota, Texas, Washington, and West Virginia. Ten (10) states have very lenient standards and tend to enforce sloppily-drafted exculpatory agreements. They include Alabama, Georgia, Kansas, Maryland, Massachusetts, Michigan, Nebraska, North Dakota, Ohio, and Tennessee. Rhode Island hasn’t clearly defined its requirements and is hard to classify.
 
first off.....lets hope none of us ever have to deal with this type of situation.

here is my uneducated 2 cents worth.

scuba, and many other activities you might do at home or on vacation, come with inherent dangers. some of which could cost you your life. that's just life.

so if you are hiring someone to train you, or to paticipate in an activity, that business doesn't want to get sued everytime someone twists an ankle, cuts themsleves, or falls down and cracks their head open.

it is common place to have to sign a liability waiver that protects the business.

so imho, as long as that business follows all the rules and regulations etc in order to conduct the activity, if you get hurt. tough. and that's the way it should be.

however, if that business, or the employee working for that business, does not follow the rules and regulations, and you get hurt, then (at least in north america) we have a law suit.

so if you go on an atv excursion. and you break away from the group and drive into a canyon and kill your self, you are SOL. but if it turns out that the atv's were not properly maintained, and the guide never showed you how to use the machine properly, and the brakes were faulty......then we get a law suit.

scuba over all is a safe sport when students and instructors listen to each other and follow the rules. maybe throw in a bit of common sense too. haha ENJOY !! HAVE FUN !!
 
I am pretty sure I have to sign a waiver on AJ Hackett bungy jump in NZ 30 yrs ago.
Same as parapenting in Meribel. I must be MAD for this.
 
Wrong, they don't cover negligence at all.
What is your basis for this extraordinary statement? Did you read either of my links?

Will text from actual court cases convince you that you are mistaken?

"South Dakota law provides that a valid release of liability bars claims for ordinary negligence, but does not bar claims for gross or willful negligence or recklessness. Holzer v. Dakota Speedway, Inc., 2000 SD 65, 610 N.W.2d 787, 792-93 (S.D. 2000). The Reeds do not argue that the release was invalid in any way or that the activity I.R. was engaged in when she was injured was outside the scope of the release. In fact, the Reeds concede that their first claim in their amended complaint for ordinary negligence is barred by defendant’s release. See Docket No. 30 at p. 5. Accordingly, the court recommends that defendant’s motion for summary judgment as to the Reeds’ claim for ordinary negligence, count one of the amended complaint, be granted. - Reed v. Union Resort, LLC, 2018 U.S. Dist. LEXIS 225856, 2018 WL 8332583

Here's a diving one. This was an appeal from a finding of summary judgement dismissing a case brought by a dead diver's family. The only issue in the appeal was whether the waiver also applied against the family members:

The judge determined, and the plaintiff does not contest on appeal, that Golbranson acted as DUI’s agent during the dive. The judge also concluded that the two waivers that the decedent signed prohibited the plaintiff from bringing an action for negligence against Golbranson....

Given that the plaintiff does not contest the judge’s determinations that the release from liability and the equipment rental agreement are valid and that those waivers covered Golbranson as an agent of PUI, the only issue before the court is whether the statutory beneficiaries in the action for wrongful death have a right to recover damages that is independent of the decedent’s own cause of action. See G. L. c. 229, §§ 1, 2. In GGNSC, 484 Mass. at, we have resolved that issue: our wrongful death statute creates a derivative right of recovery for the statutory beneficiaries listed in G. L. c. 229, § 1. Therefore, we hold that here, the valid waivers signed by the decedent preclude the plaintiff, as his “executor or personal representative,” from bringing a lawsuit under G. L. c. 229, § 2, for the benefit of the statutory beneficiaries. - Doherty v. Diving Unlimited International, Inc., 484 Mass. 193, 2020

Maritime case which took place in Puerto Rico, thus invoking US Federal law.

Beyond the issue of liability, plaintiffs executed a waiver precluding liability as to Water Toy and Axel Acosta – Water Toy’s sole owner and president, representative and agent – except for gross negligence, which the complaint only imputed to Castro. Plaintiffs attack the waiver, essentially characterizing it as unenforceable (Docket No. 61, at pp. 20-31). Voluntary waivers of liability for negligence in maritime activities are enforceable provided they: (1) are consistent with public policy; (2) do not configure a contract of adhesion; and (3) are drafted in clear and unambiguous language. See, Olmo v. Atlantic City Parasail, 2016 WL 1704365, *9 (D.N.J. April 28, 2016)(articulating and applying test)(citing Olivelli v. Sappo Corp., Inc., 225 F.Supp.2d 109, 116 (D.P.R. 2002)). By these standards, the waivers that plaintiffs signed are valid and enforceable...

For the reasons stated, the motion for summary judgment (Docket No. 52) is GRANTED and the claims against Water Toy, Axel Acosta and Ironshore Indemnity DISMISSED WITH PREJUDICE. - Morgan, et al., v. Water Toy Shop, Inc., et al., 2018 U.S. Dist. LEXIS 61546


Again, although the governing law is dependent on the state where the dive takes place, the general rule is that a properly written and executed waiver will bar a diver from recovering damages due to dive op negligence. It's a risk you take when diving, so you need to keep your eyes open when using an op. Which you should anyway because avoiding an incident is far better than suffering from one regardless of whether you can collect monetary damages afterwards

 
. . . That just seems very odd to me that they hold no accountability even if they are willfully negligent? . . .

"Willfully negligent" would be an oxymoron. I'm simplifying here, but "willful" means you knew what you were doing, while "negligent" means you just screwed up. Now, to get into the finer points, as others have pointed out there is a flavor of negligence called "gross negligence," which means different things in different states but essentially that you reasonably should have known it was not going to turn out right. As others have pointed out, you can waive your right to sue for negligence--and waiver forms for just about every activity, not just scuba, include the same kind of waiver of negligence--but you will always retain your right to sue for gross negligence.

@Esprise Me , the CA bar exam was a long time ago. How did I do? :)
 
What is your basis for this extraordinary statement? Did you read either of my links?

Will text from actual court cases convince you that you are mistaken?

"South Dakota law provides that a valid release of liability bars claims for ordinary negligence, but does not bar claims for gross or willful negligence or recklessness. Holzer v. Dakota Speedway, Inc., 2000 SD 65, 610 N.W.2d 787, 792-93 (S.D. 2000). The Reeds do not argue that the release was invalid in any way or that the activity I.R. was engaged in when she was injured was outside the scope of the release. In fact, the Reeds concede that their first claim in their amended complaint for ordinary negligence is barred by defendant’s release. See Docket No. 30 at p. 5. Accordingly, the court recommends that defendant’s motion for summary judgment as to the Reeds’ claim for ordinary negligence, count one of the amended complaint, be granted. - Reed v. Union Resort, LLC, 2018 U.S. Dist. LEXIS 225856, 2018 WL 8332583

Here's a diving one. This was an appeal from a finding of summary judgement dismissing a case brought by a dead diver's family. The only issue in the appeal was whether the waiver also applied against the family members:

The judge determined, and the plaintiff does not contest on appeal, that Golbranson acted as DUI’s agent during the dive. The judge also concluded that the two waivers that the decedent signed prohibited the plaintiff from bringing an action for negligence against Golbranson....

Given that the plaintiff does not contest the judge’s determinations that the release from liability and the equipment rental agreement are valid and that those waivers covered Golbranson as an agent of PUI, the only issue before the court is whether the statutory beneficiaries in the action for wrongful death have a right to recover damages that is independent of the decedent’s own cause of action. See G. L. c. 229, §§ 1, 2. In GGNSC, 484 Mass. at, we have resolved that issue: our wrongful death statute creates a derivative right of recovery for the statutory beneficiaries listed in G. L. c. 229, § 1. Therefore, we hold that here, the valid waivers signed by the decedent preclude the plaintiff, as his “executor or personal representative,” from bringing a lawsuit under G. L. c. 229, § 2, for the benefit of the statutory beneficiaries. - Doherty v. Diving Unlimited International, Inc., 484 Mass. 193, 2020

Maritime case which took place in Puerto Rico, thus invoking US Federal law.

Beyond the issue of liability, plaintiffs executed a waiver precluding liability as to Water Toy and Axel Acosta – Water Toy’s sole owner and president, representative and agent – except for gross negligence, which the complaint only imputed to Castro. Plaintiffs attack the waiver, essentially characterizing it as unenforceable (Docket No. 61, at pp. 20-31). Voluntary waivers of liability for negligence in maritime activities are enforceable provided they: (1) are consistent with public policy; (2) do not configure a contract of adhesion; and (3) are drafted in clear and unambiguous language. See, Olmo v. Atlantic City Parasail, 2016 WL 1704365, *9 (D.N.J. April 28, 2016)(articulating and applying test)(citing Olivelli v. Sappo Corp., Inc., 225 F.Supp.2d 109, 116 (D.P.R. 2002)). By these standards, the waivers that plaintiffs signed are valid and enforceable...

For the reasons stated, the motion for summary judgment (Docket No. 52) is GRANTED and the claims against Water Toy, Axel Acosta and Ironshore Indemnity DISMISSED WITH PREJUDICE. - Morgan, et al., v. Water Toy Shop, Inc., et al., 2018 U.S. Dist. LEXIS 61546


Again, although the governing law is dependent on the state where the dive takes place, the general rule is that a properly written and executed waiver will bar a diver from recovering damages due to dive op negligence. It's a risk you take when diving, so you need to keep your eyes open when using an op. Which you should anyway because avoiding an incident is far better than suffering from one regardless of whether you can collect monetary damages afterwards

Let me see, I'm licensed
 
https://www.shearwater.com/products/perdix-ai/

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