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

[DivePartner1]

DivePartner, what large corporation do you work for?

One nobody's ever of heard except our specialized and eclectic target market.

 

[Scubaguy62]

One nobody's ever of heard except our specialized and eclectic target market.

Between Anapolis and the above, that has classified written all over it

This is an awsome thread though.

In Georgia, the US District Court for the Southern District, Savannah Division held that the boat Capt., and the DM were negligent in the death of two divers who were killed when they were inadvertently caught in a current, and accidentally came "too close for comfort" with the boat's props. The key factor for the finding in this case was that the DM and the Capt. 'reversed roles', and the DM assumed control of the vessel while the Capt. dove with the two injured divers, which was found to be in contravention with the DHSA (Death on the High Seas Act). It further held that the boat owner's liability could not be limited because it had privity or specific knowledge of the Captain and the DM's negligence. Sorry I wasn't able to get a link to this opinion, but if you have access to Westlaw, the cite is 837 F. Supp 1244. The case is captioned In the Matter of the Adventure Bound Sports, Inc.

In Florida, the 4th District Court of Appeals reversed summary judment (judgment entered when facts do not preclude judgment as a matter of law) awarded to a boat owner and the captain when a dive student file suit for negligence arising out of injuries she sustained when she fell on the boat. The Court found that despite the student signing a release which absolved the shop (Force E), the instructor, 'employees, officers, agents or assigns' from liability, the release did not establish the relationship the school had with the boat owner and the captain, thus summary judgment was not possible. No record of the disposition after reversal. Reckleben v. Boca Underwater Services, Inc., 673 So. 2d 185 (Fla. 4th DCA 1996).

While there are many Florida cases where the release from liability has stood unchallenged, it's obvious that the mere fact a release is signed does not give the boat operator, captain, or DM Carte Blanche to act stupid. They still have a duty for the overall safety of the divers, and if that duty is breached, :06:

Semper Safe,

Rick

 

[AzAtty]

DP, I assume to New York District Court case to which you refer is Murley v. Deep Explorers, Inc., 281 F.Supp.2d 580 (E.D.N.Y. 2003).

I've been trying to reconcile that opinion with the state law cases, and I don't know if I can. Admiralty law recognizes that a wrongful death claim under the Death on the High Seas Act, 46 App.U.S.C. §761 ("DOHSA") is a claim that belongs to the survivors, Kuntz v. Windjammer "Barefoot" Cruises, Ltd., 573 F.Supp. 1277 (W.D.Pa. 1983), which is the typical grounds under state law that waivers of the rights of heirs by the decedent are invalidated.

I think that the Murley holding is distinguishable from the state law cases because Murley sounded in admiralty. In maritime law, no claim existed for the wrongful death. Such a claim for non-seamen did not exist until the enactment of DOHSA. Now, DOHSA is the sole basis for a wrongful death claim when the indcident occurs more than one marine league (3 miles) offshore. Inside a state's territorial waters, state law still governs.

DOHSA reads as follows:

"(a) Subject to subsection (b), whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued."

To render vessel, person or corporation liable to personal representative of deceased seaman under this chapter, there must be a violation of some legal duty owed to the seaman, and only those wrongful acts, neglects, or defaults which would produce causes of action for a living person are preserved by this chapter. Hartsfield v. Seafarers Intern. Union, Atlantic, Gulf, Lakes, and Inland Waters Dist. (AFL-CIO), 427 F.Supp. 264 (S.D.Ala.1977); Noel v. United Aircraft Corp., 204 F.Supp. 929 (D.C.Del.1962).

Also, DOHSA preempts other wrongful death claims based on state law for circumstances falling within the reach of the statute. It does not, apparently, preempt state law wrongful death claims that do not fall within the statute (e.g. not on the high seas). Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).

I *think* that the statute is interpreted to mean that a DOHSA claim is predicated upon the decedent's right to sue. Thus, any defenses to the decedent's action would bar a claim by his survivors. This is precisely the argument rejected under New Jersey state law in Gershon. Since DOHSA is interpreted solely under federal law, though, the state law rules do not apply.

Of course, in Murley, the issue of who owned the claim and the standing of the decedent to eliminate a claim by the survivors was not decided.

It appears that I need to do some more research to address the disparity.

 

[DivePartner1]

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?

I don't think this solves the problem. The third party still has not input. One way to deal with this is with an indemnification clause, and scuba waivers generally have these. These require the diver to indemnify the diveshop or boat from third party claims. The fly in this ointment is that the indemnity is useless if the diver is bankrupt or has no resources. It might work if the diver died with substantial net worth--the right of indemnity could be a claim against the estate. Of course, the shop or boat would likely incure substantial legal costs in trying to enforce such a claim, which legal cost is not recoverable in the US but may be elsewhere (in part--even Canada, UK at all don't award total costs). Also, it's not hard to imagine that courts and juries might to back flips to come up with a basis to prevent the estate of a decedent from paying the liability costs of the entity that's being blamed for killing him/her.

We're back to the problem of the result being dependent on how the issue is teed up and the bias of the forum.

 

[DivePartner1]

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

Well, bummer. Seems like a pretty tight box.

I don't think much of lawyers but where does the actuary bashing come in. The have to pass the equivalent of about 10 increasingly complex professional exams to be fully certified. Accountants only count and wriggle around tax codes.

 

[DivePartner1]

Between Anapolis and the above, that has classified written all over it

If we just worked for the government, I wouldn't think of risk management in terms of civil courts systems, but that other stuff is a big local industry.

Ok, one last post. AZ, I think approaches by different states cannot be reconciled. California, for example, isn't likely to ever be on the planet.

When I was young and foolish, I took 4 exams to get admited in 5 states. Three of these apply pure contributory negligence while 2 used different versions of comparitive negligence.

Of the comparitive states 1 was "pure" (if shop is 10% liable, boat is 90%, the shop pays 10% of whatever multi-million dollar number that can be drawn for the emotions of the jury). In the "comparitive state), the shop only pays if its more than 50% liable. In both if the shops is 50% liable and a co defendant of, say, 10% goes bust, the shop can also get socked with their share in some cases under the theory of joint and several liability.

In a contributory negligence state, if the victim contributed the error in any way, or he assumed the risk, he gets nothing.
My favorite example of where this gets hinky is the "boulevard" rule. A driver on the un-favored role approaches the road with the right of way in fog. He stops, rolls down the window to listen and cautionly proceeds. He gets hit by a speeding drunk driving on the wrong side of the road with no lights on. The cautious drive has no claim. Since he did not have the right of way he is contributorily negligence.

Again, you just can't reconcile the appoaches of systems with different rules driven by different judicial and social biases.

 

[aa777888]

This is an interesting thread. As a brand new diver and an experienced skydiver one of the first things I noticed about the dive industry is a rather more relaxed attitude with respect to waivers and such as compared to the jump industry.

Some drop zones make new students perform "video waivers". These are often relied upon as much more likely to sway the jury, as opposed to "that piece of paper that isn't worth the paper it's written on". It can be a powerful thing to see somebody on video saying "It's my decision and I know I can be hurt or killed, etc., etc."

The real eye opener was one day, around the time I became a newbie jumpmaster, I was in a conversation with the drop zone owner and he happened to mention a new student that had gotten hurt recently had brought suit against the DZ. But the owner seemed completely unconcerned, even amused, and I asked him why. He proceeded to tell me that most of the lawyers calmly go back and tell their clients "Thanks, but no thanks" when they find out that a) there are no real assets, i.e. the land, buildings, equipment, aircraft, etc. are all owned by a half-dozen different companies (all leased for a dollar/year, of course!), b) each instructor and jumpmaster is a subcontractor and would have to be sued separately, and that few have more than a couple dollars to their name, c) insurance is intentionally not carried to avoid another deep pocket, d) there is always at least one other lawsuit pending that threatens to wipe the tiny little bit that is available for the taking, and e) they spend the money they would spend on insurance and put it into lawyer fees, i.e. a good offense.

I'm no lawyer, but it seems like a good stategy with multiple layers of defense for the business. No defense against personal liability, though, right?

 

[AzAtty]

I'm no lawyer, but it seems like a good stategy with multiple layers of defense for the business. No defense against personal liability, though, right?

It isn't terribly uncommon to see "layering" when you're trying to protect assets. But those strategies simply place obstacles in the way of collection actions.

Even if a person does use several corporations, trusts, and other entities, once you have a judgment against the person, you can engage in post-judgment collection actions. For instance, if a drop zone owner has squirreled away all his assets in a spendthrift trust of which he is a beneficiary, you can blow right through the trust and reach the assets. If his only asset is stock in a corporation that owns other corporations or business entities, you can garnish the stock, gain control of the company, and then start reeling in whatever "fish" are on the lines running out of the company. The layering strategies look impressive to a layperson, but if you know how to use post-judgment remedies skillfully, the layers aren't as substantial as one might think.

I tell clients that the safest way to protect assets is to own nothing. However, that goal is fairly difficult to achieve, and it also requires that you know somebody whom you can trust completely.

 

[skyimp]

I'm doing a paper for school. I need to know where I would find something to defend a negligence suit against a diver whose unknown buddy dissapeared and drowned. The "buddy" was 15, the suit is from his parents. I'm new at this research, and you really seem to know what you are talking about. I was hoping you might steer me in the right direction.

 

[DivePartner1]

I'm doing a paper for school. I need to know where I would find something to defend a negligence suit against a diver whose unknown buddy dissapeared and drowned. The "buddy" was 15, the suit is from his parents. I'm new at this research, and you really seem to know what you are talking about. I was hoping you might steer me in the right direction.

Law library. Start with Prosser on Torts for the concepts. In my day I'd go the Decennial Digest under Negligence and look for promissing Key numbers to search. Nowadays, you might try FindLaw and do searches under "diver" "dive buddy" et al. Then "negligence" w/# "duty" & "amatuer" w/p "sport" combos, etc.

Don't expect to find much, if anything, on point. You have to argue concepts, sometimes in new cases. Your task will be to find cases on negligence and how far the definition of "duty" goes when each are not professionals but a amateurs in a mutually supporting sport.

Even if you find a case that superficially seems on point arguing against you, do research that argues why it doesn't apply, why your facts are different (if they are) or why it is wrong. E.g., if you are in New York, the decision in the recent Andrea Doria case will trump any cases from California or Alabama. Argue the concepts and do not be seduced by superficial similarities. E.g., if a DM is liable, a buddy may not be. If a buddy is liable in one case, she may not be under different facts.

Dont' forget to be an advocate, but be honest in your arguments. If your argument feels like a stretch, it probably is, in which case it's back to the books! Have fun!