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We've all signed the waivers, and frankly - I don't read them anymore. I figure that if I don't sign, I don't dive, so I sign them. This news sheds new light to me, though...
Court: Scuba death suit can proceed even though man signed waiver
- Thread starter DandyDon
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ScubaSarus
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I mean if there is negligence involved there can be a suit regardless of a waiver being signed. I have a funny saying when we sign our waiver at the shop I got certified at.
"The waiver they have us sign is so strict that they can probably drown us and not be sued"
Signing a waiver does not release a dive op, shop, or class to deviate from the standards of safe diving practice.
"The waiver they have us sign is so strict that they can probably drown us and not be sued"
Signing a waiver does not release a dive op, shop, or class to deviate from the standards of safe diving practice.
Waivers have virtually no legal weight in Texas, regardless of who signed them. They've always been paper tigers.
This new court rules now establishes a precedent that unless everyone who is capable of bringing suit signs a waiver against such suits, they can proceed legally. For all intensive purposes it nullifies any legal protection if the signed party dies, as anyone can sue on their behalf.
I hope the lawyer divers chime in on this thread. I would love to hear what their solution would be.
This new court rules now establishes a precedent that unless everyone who is capable of bringing suit signs a waiver against such suits, they can proceed legally. For all intensive purposes it nullifies any legal protection if the signed party dies, as anyone can sue on their behalf.
I hope the lawyer divers chime in on this thread. I would love to hear what their solution would be.
I thought this had been known for a long time. The reality is it is simply to provide the service provider documents showing the person knew full and well the risks involved and accepted them. In this day of outrageous jury awards the dive operator has a battle. Juries will say oh its just the insurance company that will pay
. Another perfect example of the abdication of personal responsibility, and a society who always wants somebody to blame
Courts in the US have taken differing views depending upon the activity. Waivers signed by participants in recreational activities with obvious hazards are sometimes viewed favorably.
Some points stressed in decisions I have read upholding waivers are that the activity is entirely voluntary and that the operators could not reasonably stay in business without participants taking some significant portion of the responsibility for obviously hazardous activities.
The path the court in this case is heading would lead to a situation which is entirely impractical. A dive operation is not willing to provide training without you assuming the risks of diving so you sign a waiver. Now this court would have any and all potential heirs sign a waiver as well? But a child cannot meaningfully waive his/her rights, so will dive shops cease offering training to persons with minor children?
Some points stressed in decisions I have read upholding waivers are that the activity is entirely voluntary and that the operators could not reasonably stay in business without participants taking some significant portion of the responsibility for obviously hazardous activities.
The path the court in this case is heading would lead to a situation which is entirely impractical. A dive operation is not willing to provide training without you assuming the risks of diving so you sign a waiver. Now this court would have any and all potential heirs sign a waiver as well? But a child cannot meaningfully waive his/her rights, so will dive shops cease offering training to persons with minor children?
Drew Sailbum:
Add to this the fact that the insurance offered by PADI, NAUI etc. isn't valid if you don't get a waiver from your student then what the heck is an instructor to do? Canada is less litigous that the USA but is not far behind. Waivers from what I have been told are mostly to help with nuisance law suits anyway.
A lawyer is a gentlemen that rescues your estate from your enemies and then keeps it to himself. ~ Lord Henry P. Brougham
Anybody dumb enough to take an assistant prosecutor diving should be sued. He's a Greek, if this was Greece, they would have put him in jail for 2 years pending the court hearing.
Having said that, this certainly is a concern. My attitude is, no matter what you have, to prove otherwise, everyone is going to get lambasted in the case of an accident.
So the best protection is to make sure there aren't going to be any accidents. Knock on wood.
Having said that, this certainly is a concern. My attitude is, no matter what you have, to prove otherwise, everyone is going to get lambasted in the case of an accident.
So the best protection is to make sure there aren't going to be any accidents. Knock on wood.
OP
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If I jump off of a perfectly good boat into the ocean, I feel 100% responsible for that action. I expect the operator to fill my tank with safe air, and to transport me safely per U.S.Coast Guard regulations, but the diving is my deal.
Yet, if the operators are sued more, they'll be less likely to take us out. Even if they win every time, they still have to fight the suit. Then, the next time I want to dive a wreck in less than wonderful conditions, the operator is going to be less likely to go. Beyond that, he'll have to charge more for the times he goes to make up for the down time. In the end, less diving, more money, for the diver.
I flew to Florida for a week of diving last month, always thinking about pushing my limits safely, but ensuring that my greenhorn buddy and I were okay. There were 4 beach drownings the week before, one of a lady who was walking on the beach and caught by a rougue wave. In comparison, I guess we're keeping a pretty safe record.
Yet, if the operators are sued more, they'll be less likely to take us out. Even if they win every time, they still have to fight the suit. Then, the next time I want to dive a wreck in less than wonderful conditions, the operator is going to be less likely to go. Beyond that, he'll have to charge more for the times he goes to make up for the down time. In the end, less diving, more money, for the diver.
I flew to Florida for a week of diving last month, always thinking about pushing my limits safely, but ensuring that my greenhorn buddy and I were okay. There were 4 beach drownings the week before, one of a lady who was walking on the beach and caught by a rougue wave. In comparison, I guess we're keeping a pretty safe record.
The New Jersey decision is no great revelation for wrongful death claims generally. At common law (which controls in the absence of statutory law in most states in the U.S.), a wrongful death claim "belongs" to certain of the decedent's survivors, not to the decedent. Therefore, the decedent cannot waive that claim on behalf of his potential survivors.
The decision is important for New Jersey because it decided the effect of a waiver by the decedent upon an heir's right to file a wrongful death suit under a New Jersey statute that allows wrongful death claims. The Court noted that the issue was a matter of first impression, meaning that the statute had not been tested under the circumstances present in the case. The statute seemed to mean that a wrongful death suit could not be filed unless the decedent would have been entitled to sue for the conduct that caused his death. Thus, if a waiver would have deprived the decedent of the ability to sue for the conduct, an heir would arguably be barred too. Frankly, the way the statute is drafted is unclear and confusing. Poor legislative drafting caused the question.
In other words, the case means pretty much zip outside of New Jersey, and merely reinforces the common law rule in the dicta contained in the opinion.
As for waivers generally, courts disfavor them. However, they are far from paper tigers if done correctly. One of the key features missing in many waivers is the element of "bargain," i.e. that the parties actually discussed the waiver and conditioned certain performances upon the waiver. Thus, in Arizona, the "read this and sign" type of waivers are not typically valid, while a waiver signed after a person is told "read this, you're giving up your right to sue us if you sign it, and we won't provide services unless we get the waiver" is usually valid (barring some other defect). There's a great article from Arizona Attorney on the issue of waivers that explains the issues reasonably well.
Edit:
Not precisely true. The Court decided an issue relating to wrongful death actions. Only certain people can bring such an action. As I understand New Jersey law (and I'm not licensed there), only those to whom the decedent owed "support," such as spouses and children, can bring a wrongful death action.
Also, the decision has no effect whatsoever upon the validity of the waiver of the diver's claims. If the diver in this case had survived, his personal claims would likely be barred by the waiver. (The text of the waiver is reproduced in the Court's opinion, so I've read it.)
The decision is important for New Jersey because it decided the effect of a waiver by the decedent upon an heir's right to file a wrongful death suit under a New Jersey statute that allows wrongful death claims. The Court noted that the issue was a matter of first impression, meaning that the statute had not been tested under the circumstances present in the case. The statute seemed to mean that a wrongful death suit could not be filed unless the decedent would have been entitled to sue for the conduct that caused his death. Thus, if a waiver would have deprived the decedent of the ability to sue for the conduct, an heir would arguably be barred too. Frankly, the way the statute is drafted is unclear and confusing. Poor legislative drafting caused the question.
In other words, the case means pretty much zip outside of New Jersey, and merely reinforces the common law rule in the dicta contained in the opinion.
As for waivers generally, courts disfavor them. However, they are far from paper tigers if done correctly. One of the key features missing in many waivers is the element of "bargain," i.e. that the parties actually discussed the waiver and conditioned certain performances upon the waiver. Thus, in Arizona, the "read this and sign" type of waivers are not typically valid, while a waiver signed after a person is told "read this, you're giving up your right to sue us if you sign it, and we won't provide services unless we get the waiver" is usually valid (barring some other defect). There's a great article from Arizona Attorney on the issue of waivers that explains the issues reasonably well.
Edit:
Not precisely true. The Court decided an issue relating to wrongful death actions. Only certain people can bring such an action. As I understand New Jersey law (and I'm not licensed there), only those to whom the decedent owed "support," such as spouses and children, can bring a wrongful death action.
Also, the decision has no effect whatsoever upon the validity of the waiver of the diver's claims. If the diver in this case had survived, his personal claims would likely be barred by the waiver. (The text of the waiver is reproduced in the Court's opinion, so I've read it.)
The solution depends on the problem. The only real solution to a wrongful death claim, for instance, is a waiver of the prospective claim by those entitled to bring the claim, e.g. spouse, children, or those who were supported by the decedent. Or legislative action, but I shudder to think about the legislature mucking around with substantive rights. There are also Constitutional issues when you start barring claims entirely through the legislative process.
If the issue is a negligence claim from a diver who didn't quite die, such claim may be barred by a proper waiver. PADI's waiver has been upheld in California as being valid (I believe it's the Madison case) and effective to bar claims brought by the diver himself.
But Drew raises an excellent question--what about minor children? The fact of the matter is that a waiver by a minor of any claim may not be enforceable. Likewise, there is a split among the states whether parental waivers of a minor's claim are enforceable. Colorad say that such waivers are unenforceable. Ohio and California suggest they're valid. Refer to the Arizona Attorney article referenced in my previous post for an overview of the issues. Unfortunately, there's no easy answer to this issue. You can't protect against every risk. It's simply part of the cost of doing certain kinds of business. Believe me, I hate to tell a client that. Sometimes, we just can't do anything that will effectively protect against a particular kind of risk. At that point, we call in the insurance agent and make sure the risk is covered by the client's policy. And if you can't insure against it, you simply have to roll the dice if you want to be in that business.
Even though a particular waiver provision may be stricken, we attorneys often include them anyway. Part of the strategy when drafting a waiver is to place hurdles in the way of a potential litigant. When the average person is faced with an apparently comprehensive waiver document, the initial reaction is "wow, this must be bulletproof." Sometimes you have to bet on the perception of a potential plaintiff rather than the strength of a legal or factual argument. A plaintiff may objectively have a fantastic case, but if the plaintiff or the attorney believes there are problems, that perception will affect the case.
There. I've revealed the fact that sometimes litigation is won or lost on the strength of your poker face. But then we all knew that, right?
Edit:
Simple. Get the waiver. Although I haven't read the NAUI and PADI policies, I'm fairly certain they'll say something to the effect of "if you don't use our waiver, you're not covered." Also, the policy probably does not say "failure to get an enforceable waiver will result in lack of coverage." So get the waiver PADI or NAUI recommends, and tender the claim to the insurance company if you get sued.
That's another little trick we use from time to time. Use the insurer's documents (or title company, etc.) when dealing with issues that affect coverage. An insurance company will look awfully stupid if it tries to deny coverage because you used its own documents and those documents were unenforceable. I call it "putting the turd back in their pocket."
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