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

[Flamebug818]

high i might ask the school but am afraid if they think their is risk they might cancel the club. my other thought is to say that this is just us "Showing up by sheer chance at the same dive site on the same weekend every month" that might not work and i am somewhat nervous that i will get some total crap divers or worse yet a stupid and wreckless one. I have zero authority over them except i can kick them out. but the problem the only enforcer in my club is my wrestling coach and i know he doesn't dive so i figure i'll just though it to the wind and make them sign a waiver that i will try to get from the school and just bank on no one doing any thing dumb

 

[wolf eel]

This may be wrong where you live but. Where I live if you have a beware of dog sign and your dog attacks a postal guy or anybody who enters the yard it is your fault you knew it was a bad dog, you said so yourself in the sign. by signing a waiver you knew how bad it could be of a dive and forsaw trouble.
You are having a group of divers get together to do dives if you leave it at that then all is good. The more involved you get the more real you become responsible to the group. Keep it simple stupid (kiss) it works. Take no formal role and let everybody agree on a dive and keep the dive in groups that can handle each others abilities. And it can not fall back on you.
my .002 percent of a penny.
Cheers
Derek

 

[DivePartner1]

Actually, there was a story in the Sacramento Bee last month about a court that held that simply by posting the "Beware of Dog 'sign the dog owner had admitted the dog was dangerous; the owner could be held strictly liable.

States east of that Mad Labrotory of "Progressive" laws still embrace the old rule: the first bite is free and your strictly liable for the next ones. Unlike California, by statute in Florida a dog owner who puts a "beware of dog" sign is protected as against trespassers who are bitten. Even if the sign is only in English.

While many of would say Florida has a more common sense approach, beware: California likes to be the tail that wags the dog of the rest of the country.

And as to the high school club idea, I'd drop it. It's hard to see how you can manage the potential risk or get insurance. Sorry.

 

[miketsp]

Well I didn't see this thread first time around and all I can say is, "Thank God most countries outside the USA have laws which limit adhesion contracts."

Here's a nice example from Korea.
http://ftc.go.kr/data/hwp/adhesion(6459).doc
See Articles 6 & 7.

Article 6 General Principles
(1) Any clause in an adhesion contract which is not fair or is contrary to the principle of trust and good faith shall be null and void.

Article 7 Prohibition of Exemption Clause
Any clause of an adhesion contract concerning the liability of contracting parties shall be null and void if it -
(1) exempts an Enterprise from liability for intentional wrongdoing or gross negligence on the part of the Enterprise, its agents, or employees;

Most countries I've worked in have similar laws.

 

[DivePartner1]

Well, if you're free not to dive, it's not adhesion. More to the point, that statute does not bar limiting liability for negligence, even under its own terms. Negligence is where I'd expect a claim.

Everyone generally allows limits for ordinary negligence. This law only deals with intentional misconduct -- say, a crime -- or harm done with manifest disregard for consequences (gross negligence). Both are much harder to prove than negligence and may have nothing to do with a dive injury (except, feeding sharks around swimmers?).

Virtually all companies limit liability for their products where ever they do business, all over the world--usually to a replacement costs. If you have any doubts, read the fine print in any Fedex or Microsoft package, anywhere.

I've confirmed the legality of limits of liability for negligence everywhere my people do business: in Korea, thoughtout Asia and the Western Hemispher, including Korea and Brazil. My local country counsel has blessed this language. Since lawyers (oddly) can't limit their liability to us for this advise, I'll take that advice to the bank if I have to.

 

[WJL]

Well I didn't see this thread first time around and all I can say is, "Thank God most countries outside the USA have laws which limit adhesion contracts."

Now you are going to see why people scream after talking to lawyers about something like this (we lawyers prefer to think it means we have subtle minds, not that we twist things around to suit our advantage):

Adhesion contracts in consumer transactions are illegal in most places in the U.S. too. How then, you may ask, are waivers ever enforceable in the U.S.? The answer is simplicity itself - just because you are forced to sign the waiver, doesn't mean it is an "adhesion contract." (You may begin screaming at this point.)

An "adhesion contract" is narrowly defined in most U.S. jurisdictions, and I'll bet Korea and most places elsewhere, to be a contract involving something you can't get some other way or can't do without. Like, for example, the contract you must enter into to get electrical service from a monopoly utility company. There the electric company can't impose unfair conditions on you, because you have no other choice for getting electricity, a commodity generally considered important to survival in a modern society.

In contrast, most recreational activities, like scuba diving to pull an example out of thin air, are voluntary pursuits engaged in for pleasure. You can live your life without scuba diving. You can get on a different charter boat than the one you are on, or forego riding on charter boats altogether, and your basic survival will not be imperiled. In short you have a choice not to enage in scuba diving. And if you have a choice not to engage in an activity or buy a particular service, then a vendor of that service can condition providing that service to you on you agreeing to sign a waiver. Painting with broad strokes, that will not be considered an "adhesion contract" by most U.S. courts. If you don't like the waiver, don't sign it. If that means you can't ride on that chater boat, the attitude of the U.S. courts is "so what? Go find a different boat. Or don't go diving. Diving is just a goof for crazy people."

Of course there are lots of fuzzy edges to these concepts, but that's why lawyers exist, to guide the uninitiated through the uncertainties that lawyers created in the first place.

 

[Teresa Mars]

It is very interesting that I find this subject at this time, especially since waivers were so very important to Peter Hughes Diving after the capsizing of the Wave Dancer. I lost my husband on that ship, so I am not very removed from opinions about deaths due to negligence. I have received much (very much) criticism about my views on this tragedy, usually very mean-spirited and cruel, at least it appears so to me. What I want to let you all know tonight is that IMMARBE (The International Merchant Marine Regulatory Office of Belize) has finally, after over 3 years, released it's official report on the Wave Dancer capsizing tragedy, and the loss of 20 lives. I thought at least some might find this of some interest. It can be found at:
www.IMMARBE.com/regulations.html or at www.cyber-diver.com at CDNN website, where it is readily found. It is very long, and quite involved, and I will leave all of you to form your own opinions as to its meaning. Many of you, and others, were very ready to give their own official pronouncements on this horrible disaster, before having all the facts. It seemed to some that it was not proper for me to place blame, or have anything negative to say about those responsible for my husband's untimely, and horrific, painful death. So, if you care at all, please read this report, and then decide what happened that night, October 8, 2001, and how it could have been avoided, so very easily. I am very interested in any thoughts you may have, since so many views and opinions were freely given before all the facts were known.
Teresa Mars, wife of Ray Mars, Wave Dancer victim

 

[wolf eel]

Thats a very sad story to say the least. Sorry for your loss.

Given what was read they should have not been where the were. The blame does seem to rest on the company not getting the clients off the boat or at the very least getting to a safer place.

Again sorry for your loss
Derek

 

[Stirling]

Mrs. Mars, I am very sorry for the loss of your husband and of the others on that boat. I have reviewed the report quickly and downloaded the pdf file of the report so that I can read it again more carefully later. It is a terrible thing after a catastrophe to look back and see how easily it might have been avoided. My first diving community in Tucson was devastated by the loss of nine divers when the Santa Barbara capsized and sank at night in the Sea of Cortez in 1990.

A direct link to the pdf file is http://www.immarbe.com/IMMARBELIB/MCR_WAVE_DANCER.pdf

 

[miketsp]

..snip..
Adhesion contracts in consumer transactions are illegal in most places in the U.S. too. How then, you may ask, are waivers ever enforceable in the U.S.? The answer is simplicity itself - just because you are forced to sign the waiver, doesn't mean it is an "adhesion contract." (You may begin screaming at this point.)

An "adhesion contract" is narrowly defined in most U.S. jurisdictions, and I'll bet Korea and most places elsewhere, to be a contract involving something you can't get some other way or can't do without. Like, for example, the contract you must enter into to get electrical service from a monopoly utility company. There the electric company can't impose unfair conditions on you, because you have no other choice for getting electricity, a commodity generally considered important to survival in a modern society.

In contrast, most recreational activities, like scuba diving to pull an example out of thin air, are voluntary pursuits engaged in for pleasure.
..snip..

Just a couple of comments:
The recent changes in Brazil made by the "New Civil Code" clearly brought such things as cable TV, health plans and credit card agreements into the classification of "adhesion contracts". At least the first and the last I can live without.

If I go to a place to dive and all the operators use similar waivers, that makes them adhesion contracts because I have no free choice. Technically I could even sue them for setting up a "Cartel". Especially if they charge the same price.