Court: Scuba death suit can proceed even though man signed waiver

[H2Andy]

DivePartner, what large corporation do you work for?

 

[UWSojourner]

The decision is not surprising ...

Your response seems quite knowledgeable.

Suppose a waiver explicitly assigned a value, say $0, on any relationship, or claim of value based on the relationship with the diver signing the waiver. Any better?

 

[Ian Binnie]

As noted above, the ability of persons other than the deceased diver to advance "wrongful death" and similar claims depends on local law (ignoring, for the moment, any conflict of laws issues). In the Province of Ontario, for example, this right is codified in the Family Law Act. In any other province, state or other jurisdiction, the applicable law (and the caselaw interpreting that law) will be different. If you're concerned about your exposure to such claims, you should at least become familiar with the applicable local law. Reliance on second-hand information from the web is not really a good idea.

Several years ago, I looked into this issue for a presentation given to a group of Ontario divers. Negligence law is complex, and I think that I managed to bore most of the audience to tears. However, a couple of points have stuck with me. First, there is very little accurate, publicly-available information on diving fatalities. Second, there is very little caselaw in Ontario (or across Canada) that deals with diving fatalities. (Reasons for judgment are not given in all trials, and out-of-court settlements leave little trace in the public record). Third, the results in the few reported cases seem to rely heavily on the opinions of expert witnesses (of whom there are only few in Canada). Fourth, there is little indication (in the caselaw or anecdotally) that successful Family Law Act type claims are being advanced in Canada. All that said, I remain uncomfortable with the risk posed by this type of claim. In the context of dive clubs, it is just not practical to get waivers from everyone who might make such a claim. As others have pointed out, a properly-drafted waiver should assist a defence (even against FLA type claimants), but the utility of a waiver is uncertain. Liability insurance is a logical response, but this does not seem to be readily available to individual divers. As well, there is the risk of denial of coverage by the insurer if the diving activity falls outside of the restrictions imposed by the policy. I suspect that most "insured" divers have never bothered to read the fine print (even if they were provided with a copy of the policy itself).

Anyway, all of this doesn't stop me from diving in Ontario. But my DM card doesn't get much use.

Needless to say, nothing in this post constitutes legal advice to any person, and no person may rely on anything in this post in any context whatsoever. (I need an avatar.)

 

[H2Andy]

not sure i understand what you're saying:

Suppose a waiver explicitly assigned a value, say $0, on any relationship, or claim of value based on the relationship with the diver signing the waiver. Any better?

are you trying to establish a cap as to recoverable damages (in this case zero)? if so, how is this more or less enforceable than the waiver as to negligence?

are you trying to explicitly "waive" claims by others by limiting possible recovery on those claims? if this is the case, you still have not addressed the issue that Person A can't waive Person's B rights away.

but i don't think i understand the question

of course, you could get all those who have standing to
bring a wrongful death action waive their right to those
claims for some consideration, assuming they are over 18,
and make that a condition to let anyone dive (and then
you get into a huge public policy issue...)

not much of a solution, is it?

 

[UWSojourner]

not sure i understand what you're saying:

Suppose a waiver explicitly assigned a value, say $0, on any relationship, or claim of value based on the relationship with the diver signing the waiver. Any better?

are you trying to establish a cap as to recoverable damages (in this case zero)? if so, how is this more or less enforceable than the waiver as to negligence?

are you trying to explicitly "waive" claims by others by limiting possible recovery on those claims? if this is the case, you still have not addressed the issue that Person A can't waive Person's B rights away.

but i don't think i understand the question

of course, you could get all those who have standing to
bring a wrongful death action waive their right to those
claims for some consideration, assuming they are over 18,
and make that a condition to let anyone dive (and then
you get into a huge public policy issue...)

not much of a solution, is it?

First, I'm not going to rely on anything said.

The "hope" was just that the value explicitly placed on the relationship by Person A might act to limit damages. Person B still could sue, but might Person A's explicit declaration of Person B's relationship-value help?

 

[H2Andy]

first let me make sure i understand:

you are saying that Diver A fills a form out that says, "My loss to Dependant B is
worth X, to Dependant C is worth XX." Then, if Dependant B and C bring a claim,
they can not recover more than X and XX respectively?

 

[UWSojourner]

first let me make sure i understand:

you are saying that Diver A fills a form out that says, "My loss to Dependant B is
worth X, to Dependant C is worth XX." Then, if Dependant B and C bring a claim,
they can not recover more than X and XX respectively?

How come I get the feeling the next question is, "You never went to law school, did you?" :05: Well, you're right, I didn't.

The "thought" was that maybe, since it takes at least two to form a relationship, A's declared value of the relationship would help.

 

[H2Andy]

what??? no way... dude, i went to law school, you don't have to be all that bright to
get in. (definition of a lawyer: someone not bright enough to get into med school)

honestly, i was just trying to figure out the scenario you are posing.

i don't think it would work because you have the same problem with the waiver: someone (the diver) is giving away someone else's (the dependant's) legal rights (amount of damages).

(did i mention i hate personal injury?)

 

[UWSojourner]

(definition of a lawyer: someone not bright enough to get into med school)

Definition of an actuary - someone who didn't have enough personality to be an accountant.

Well, bummer. Seems like a pretty tight box.

 

[IndigoBlue]

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.)

I agree, in that it seems to me that this ruling has no weight outside of the jurisdiction of the appellate court that issued it. And if a different appellate jurisdiction happens to issue a different ruling in a similar set of circumstances, then the issue might rise to the US Supreme Court, and only their ruling would have weight all over the USA.

Of course, in the rest of the world, like the UK, Canada, Australia etc, they would not give a squat about the USSC either. Just sign the waiver, if you please.