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

[AzAtty]

I'll get you one step further. Once you've looked at Prosser to get an idea of the elements of different tort claims, go to the law library as DP suggested. Ask one of the reference librarians to direct you to the case reporters. Find the "Pacific Reporter," third series (the citation form we used is P.3d to mean Pacific Reporter, Third Series). Find volume 29. Turn to page 56 in volume 29, and you'll find a case entitled "Cully C. Rasmussen, as Personal Representative of Bonny Jo Bendotti, Deceased... v. Eugene L. Bendotti" (citation form "Rasmussen v. Bendotti").

The case is from Washington state and deals with a lawsuit against the buddy of a diver who drowned.

There is an unreported case from California called Yace v. Dushane. It deals a situation in which one diving buddy panicked and ascended to the surface and left the other buddy (who was low on air) behind. The buddy left behind died. Since it is not a reported case, it cannot be cited as authority on the point.

Rasmussen and Yace are the two cases dealing with the liability of a diving buddy about which I know. What you'll find is that courts borrow from other sports to determine liability. For instance, in Yace, the court looked to a case relating to voluntary participation in a school football program to determine that a voluntary participant in a sport assumes the risk of ordinary injuries. The court then determined that a buddy panicking is an ordinary risk of scuba diving. You might consider looking at cases where a couple people go out hiking, or biking, or skydiving, or boating and someone gets injured. Then, look at the general rules established by those cases and try to conceive how the rule might apply to a scuba diving case.

Good luck.

 

[skyimp]

You guys are awesome!!! I live in Oklahoma, so you can imagine there are very few scuba diving lawsuits here. Now I at least have a good basis to start my research.
Love Ya!!!!!

 

[Sharkbait97]

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.

My shark attack and subsequent dominant hand paralysis was a direct result of food being thrown off a liveaboard dive boat on top of snorkelers as we observed the beautiful animals. The waiver held up in a Miami court, even though the captain himself was one of the food-tossers. Assume nothing!

 

[DivePartner1]

Well, baiting the water 'might' be viewed as gross negligence if it also viewed the crew as having a duty not create or exacerbate a dangerous condition in the water.

On the other hand, the public misconceptions as mad, ravening beasts may have worked against you if they viewed this as primarily an act of nature or assumption of the risk (i.e., being in the water with a shark -- I know, we all do it but non-divers don't understand). I know that is no comfort to you and I regret I can't be of more help.

Incidentally, what dive operation did this? I'd like to avoid them.

 

[H2Andy]

My shark attack and subsequent dominant hand paralysis was a direct result of food being thrown off a liveaboard
dive boat on top of snorkelers as we observed the beautiful animals.

holy beejesus... what was their rationale for doing this?????

and what were they throwing?

 

[wolf eel]

H2Andy holy beejesus... what was their rationale for doing this?????

and what were they throwing?

So did anybody respond at all ? And if so what was it ???

 

[Flamebug818]

it seems that no one takes reponiblity for their actions. even when it is all the diver being dumb they still sue everyone down to the maker of their dive booty it is said that a waiver can't fix this

 

[Flamebug818]

hi i am going to high jack this tread but it feel like it matchs what was said.
I have just started a dive club at my high school and we are going to get an oxygen kit and eventualy (when i get my cert in the summer) have a rescue diver at every shore dive and was wondering if i should hav a waiver, like "this is only to make dives safer and is not forcing you to dive etc" anyone have any idea, i don't want to get my parents ***'s sued, can't be my i am a minor wooot.
any help would be cool
flamebug

 

[WJL]

Flamebug:

If you have read through this thread, you should realize that drafting an enforceable waiver is a non-trivial undertaking. You need to consult with an attorney knowledgeable in relevant California law. Perhaps someone at your high school can help you if your club is associated with the school in some way. In fact, if you are associated with your school, the school may already have waiver forms for participants to sign. Don't rely on advice you get over the Internet if you are truly concerned about this issue. (I guess I just told you not to listen to me - oh well).

 

[Stirling]

"Don't rely on advice you get over the Internet if you are truly concerned about this issue. (I guess I just told you not to listen to me - oh well)."

Flamebug: Pay close attention to what WJL said. Except I guess what he wrote means you shouldn't rely on my advice, either. Ignore that part. He's right - enforceable waivers can be very tricky business. (I am a lawyer, but not a California lawyer, and the law about waivers and such is different from place to place around the country.)

I notice you said earlier that "it seems that no one takes responsibility for their actions" and "it is sad that a waiver can't fix this." Well, here's why - the courts recognize that a waiver often represents - guess what? - somebody trying to avoid responsibility for their actions, after somebody else got hurt or killed.

Theoretically - and there's a word that hides all kind of problems and exceptions - if you really didn't do *anything* wrong to cause another person's injury, you shouldn't be liable to them in the first place - so what's the waiver for? Often, the waiver is being used to protect a person who really *did* screw up somehow to cause another person's injury. The courts don't like to see *those* people trying to avoid responsibility for their actions, either. So right away the whole subject has become very complicated.

That is why you need to understand (1) a good waiver is important, but even a perfectly drafted waiver may be less protection than you think; (2) you do need help to prepare or find a good waiver - but there are lots of other organizations that have gone through this, and there will be lots of waiver forms out there that can be borrowed and copied so it shouldn't be very expensive; and (3) even if you think you have a bulletproof waiver, act like you still believe that anybody who gets hurt can still sue you, because if you are involved in organizing activities where there is a risk that somebody will get injured, that risk never really goes away.

So don't count on a waiver to solve your problem. Your best protection is to be very careful and disciplined in everything you do, AND to make it clear to everybody involved - this is one of the things that most waivers DON'T do very well - what you are NOT. You are not a dive instructor. You aren't an expert diver. You aren't accepting responsibility for teaching or supervising people that you aren't qualified to teach or supervise. On the other hand - and this is where things get to be very tricky - one of the responsibilities of being any kind of a leader in any potentially dangerous activity is that you will almost certainly get stuck with *some* responsibility for others, even while you are trying to avoid taking responsibility for them. If other people start acting stupid, you can't put up with it, because they are a danger to themselves and to the people around them, and you will at least have to be ready to throw them out of your dive club if they have a dangerous attitude. If you're going to have an actual "club," there has to be *somebody* with authority to set the standards and enforce them, and I would strongly recommend that you recruit some adults to be a part of any diving you do.

Here's the reality of the way things work. Years ago I was climbing with a couple of other people when we heard some other climbers shouting for help. They were stuck and couldn't get off the mountain without help. If we ignored them, or called for somebody else to come help them, we were off the hook. We had no responsibility to them, because they weren't climbing with us and we had nothing to do with the jam they were in. But we went to help them, and as soon as we got to them and started trying to help them get off the mountain, we were - at least potentially - liable for whatever happened to them. They were dehydrated and stupid, and the scariest thing I ever did was get on the same rope with these guys. But once I agreed to rope up with them, I knew they were relying on us to find the best way down - and in fact we insisted on making all the decisions because they were idiots. So the law would say we "voluntarily assumed a duty" to them. Once you create *any* kind of relationship with other people, the law always has the last word about whether you did what you should or should not have done, waiver or no waiver.