Court: Scuba death suit can proceed even though man signed waiver
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Happened in Texas diving the gulf, diver had a heart attack on the surface before decending.archman:
Is it just me or is there something of an urban legend feel to this?archman:
It's not uncommon to find me at the head of the line when it comes to throwing stones at the legal system, but I would have hoped for a citation with a little more meat on it than this...which kind of sounds to me like the Seeker/Murley case, which resulted in a judgment upholding the validity of the releases, at least within the specific jurisdiction. To the best of my knowledge the court did not order any money to be paid to the plaintiffs and the Seeker appears to still be in business.
I'd be interested in seeing more information about that case. No such case has been reported at the appellate level, and I'd be very surprised if a defendant did not appeal what appears to be a JNOV (Latin term meaning judgment notwithstanding the verdict) under the circumstances.
Now, there is another possibility under which this scenario could occur, and the journalist may not have understood *why* the court ordered an award of damages. Suppose the court were convinced that scuba diving is an inherently dangerous activity and determined that strict liability governed the case. Even if the operator proved that it was not negligent, the doctrine of strict liability would impose damages regardless of fault. That's how strict liability works--no amount of care will defeat the claim. Fortunately, the doctrine is limited to those activities that are inherently dangerous. The classic example given in law school is a company that works with explosives. About the only defense to strict liability of which I am aware is "assumption of the risk."
It's also possible that the jury was merely advisory on the issue. That would be highly unusual in a tort action, but there are cases in which a judge is the ultimate trier of fact and the jury merely provides its two cents, which the judge is free to take or leave.
Now, there is another possibility under which this scenario could occur, and the journalist may not have understood *why* the court ordered an award of damages. Suppose the court were convinced that scuba diving is an inherently dangerous activity and determined that strict liability governed the case. Even if the operator proved that it was not negligent, the doctrine of strict liability would impose damages regardless of fault. That's how strict liability works--no amount of care will defeat the claim. Fortunately, the doctrine is limited to those activities that are inherently dangerous. The classic example given in law school is a company that works with explosives. About the only defense to strict liability of which I am aware is "assumption of the risk."
It's also possible that the jury was merely advisory on the issue. That would be highly unusual in a tort action, but there are cases in which a judge is the ultimate trier of fact and the jury merely provides its two cents, which the judge is free to take or leave.
The Seeker/Murley case doesn't quite sound like the one I read about... I'm fairly certain the diver falsified his physical exam form and suffered a heart attack. Maybe I'm confusing it with another case. The article was in an edition of either SkinDiver or Alert Diver a year or two back.
Sorry if I cannot supply you with the case number; I'm not a lawyer.
Sorry if I cannot supply you with the case number; I'm not a lawyer.
DEEPLOU
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When I first saw this thread I was waiting to see when Murley would pop up. The link noted in Reefraff's post is the entire decision. Pages 7 to 9 go into detail about the enforcability of waivers in Federal and NYS jurisdiction.
While different states have slightly different laws, this decision is an important presedent.
While different states have slightly different laws, this decision is an important presedent.
EDIT: Sorry, I can't make the decision accessible from my data dump. If someone wants to host a .pdf or .doc, send me a PM and I'll shoot it to you.
Anybody besides me getting a Page Cannot Be Found error?AzAtty:
Yeah, I am. Still working on getting on the site. Maybe someone more skilled at web stuff can post it for me.
DivePartner1
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The decision is not surprising given the way the NJ court chose to couch the issue. One generally can't sign away the rights of others, especially when they receive nothing in return ('no consideration' to lawyers), and the right they seeking to enforce is an enjoy the them (their loss), not the victim. Keep in mind, however, that a federal court in New York came to the opposite conclusion last year in a case brought by the relatives of a diver who died on the surface during an attempt to dive the Andrea Doria. That court couched the issue more in terms of an informed waiver but one engaging in inherently dangerous activity with knowledge of the dangers.
As to waivers, I've implemented something similar everywhere my company does business throughout the Western Hemisphere and Asia Pacific Regions. By analogy, limits of liability in a commercial service agreement are enforceable to limit liability for ordinary negligence so long as the amount of the limit is not 'unconscionable' (which means different things in different countries). Ordinarily, liability for gross negligence or intentional conduct can't be limited anywhere.
My typical experience is not a perfect match to a Scuba waiver. I deal with agreements between businesses. Knowing waivers between relatively sophisticated parties are more likely to be upheld than waivers in agreements with consumers. On the other hand, the agreements I work with don't deal with an 'inherently dangerous activity' such as SCUBA (at least dangerous in the minds of non-divers). I believe that waivers of liability by an adult who intends to engage in a risky activity are more likely to be honored in most places, especially when enforcing agreements in seen as protecting a local interest. Again, gross negligence likely trumps this waiver in many places, but not all.
Again, this suggests that the result often depends on how a claim is characterized as well as the general biases of courts in the given state, province or nation. Alleging gross negligence whether it exists or not can defeat a waiveror at least advance the issue to trial. In jurisdictions that are more inclined to protect locals, more severe conduct might be generously viewed as a waiveable mistake.
As to the Canadian system, in my experience in a half dozen trials there, it's nothing like the lottery-style, lawyer enriching looting festivals that US courts have become. First, the use of a true merit system produces a higher quality bench on average (although saying "My Lord" takes some getting used to), (ii) they still use the English loser-pays system on attorneys fees that discourages meritless claims, (iii) juries in civil cases are by consent and not a right (at least the last time I did one there), (iv) judges have the right to veto juries in inappropriate or complex cases, and (v) the courts only award actual damages, not 'punitive damages. Also, compensatory damages are limited to proof of loss, a 'technicality' that no longer troubles many US courts. The US is the only country where you see lawyers getting 8 figure fees for "winning" for their class action clients a coupon worth a few dollars that is good only for a future purpose from the alleged wrong-doer. Canada hasnt yet come to this, much to its credit.
As to waivers, I've implemented something similar everywhere my company does business throughout the Western Hemisphere and Asia Pacific Regions. By analogy, limits of liability in a commercial service agreement are enforceable to limit liability for ordinary negligence so long as the amount of the limit is not 'unconscionable' (which means different things in different countries). Ordinarily, liability for gross negligence or intentional conduct can't be limited anywhere.
My typical experience is not a perfect match to a Scuba waiver. I deal with agreements between businesses. Knowing waivers between relatively sophisticated parties are more likely to be upheld than waivers in agreements with consumers. On the other hand, the agreements I work with don't deal with an 'inherently dangerous activity' such as SCUBA (at least dangerous in the minds of non-divers). I believe that waivers of liability by an adult who intends to engage in a risky activity are more likely to be honored in most places, especially when enforcing agreements in seen as protecting a local interest. Again, gross negligence likely trumps this waiver in many places, but not all.
Again, this suggests that the result often depends on how a claim is characterized as well as the general biases of courts in the given state, province or nation. Alleging gross negligence whether it exists or not can defeat a waiveror at least advance the issue to trial. In jurisdictions that are more inclined to protect locals, more severe conduct might be generously viewed as a waiveable mistake.
As to the Canadian system, in my experience in a half dozen trials there, it's nothing like the lottery-style, lawyer enriching looting festivals that US courts have become. First, the use of a true merit system produces a higher quality bench on average (although saying "My Lord" takes some getting used to), (ii) they still use the English loser-pays system on attorneys fees that discourages meritless claims, (iii) juries in civil cases are by consent and not a right (at least the last time I did one there), (iv) judges have the right to veto juries in inappropriate or complex cases, and (v) the courts only award actual damages, not 'punitive damages. Also, compensatory damages are limited to proof of loss, a 'technicality' that no longer troubles many US courts. The US is the only country where you see lawyers getting 8 figure fees for "winning" for their class action clients a coupon worth a few dollars that is good only for a future purpose from the alleged wrong-doer. Canada hasnt yet come to this, much to its credit.
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