Get Your Dive Buddy Waiver Right Here! Red Hots! (ha)

[agilis]

The case law in this area is changing, it seems. I think the extent to which you can legally bind heirs is generally limited to things like property, or rights that you own or control at the time the waiver is signed. You can't limit someone's ability to seek relief or compensation for damages that they claim were inflicted not on you, but on them.

 

[minnesota01r6]

cowboyneal I have a cite you will not like:

845 A.2d 720

Decedent did not have the legal authority to bargain away his heirs' statutory rights to institute a wrongful death action in exchange for the privilege of having defendants provide him with scuba diving instructions.

I think it is absolutely stupid, but NJ obviously loves litigation.

They even discuss allowing a party's heirs to file a wrongful death suit after the party has sued for negligence, won, and then died later on. Holy Res Judicata Batman!

 

[CIBDiving]

In other words, it's a very effective waiver.

:33:

 

[cowboyneal]

We used to call that "Headnote Scholarship" when I went to law school...maybe they don't anymore...where's H2Andy when you need him?

 

[minnesota01r6]

That was the last line of the opinion (i.e. I read the entire thing), not a headnote. C'mon, I'm better than that.

 

[Lucy's Diver]

I never heard that particular term in law school. I did, however, learn that attacking the messenger instead of the message was a tool of the ill informed. If you want to play lwayer, go read his case and then explain, using the facts and law from that and related cases, why the cite he uses does not stand for the proposition he posits.

 

[minnesota01r6]

I will grant that the facts are slightly different (dive op as opposed to buddy) but the legal principle espoused was twofold:

1) one cannot sign away rights that are not his, and since he and the dive op were the only people to sign the instrument, he could not relieve liability to his heirs

2) One's heirs do not exist while one is alive. You only have heirs when you are dead. Therefore, you cannot sign away rights of people who don't exist (yet).

 

[miketsp]

You forgot to say that it should be signed in blood so that the signature can be validated by a DNA test just in case the heirs try to say it was forged.

DNA really gives a whole new meaning to the old clichés doesn't it?

 

[cowboyneal]

Like I said: Litigators: sucking the fun out of life for generations...hahaaa...Law students are funny, too. Check with your Torts professor, and ask him/her if hundreds of years of Anglo-American jurisprudence is now wrong. "All waivers are ineffective" is just a flat out wrong statement. "No waiver can waive the rights of family members, heirs, executors, etc." is just a flat out wrong statement. If you actually know anything about waivers, you would know that they are upheld more often than not, and when they are not upheld it is most often defects as to form that does them in, not "because no heirs exist until your dead." If that reasoning were the least bit sound, how could you make a will? How could you leave property to someone that doesn't yet exist because you're not dead yet (an heir)? If you didn't hear the term "Headnote Scholar" in law school, it could be because you may have been one...lol...Finally, the cite stated that a waiver couldn't bar a WRONGFUL DEATH action, not a NEGLIGENCE action so, again, the specific facts and application are important! Calm down kids, jr. sharks, ambulance chasers...relax! How is Sao Paulo Mike? I used to go to Floripa a bit with my ex-girlfriend from S.P.

CN

 

[agilis]

I'm not a lawyer, though while a graduate student I completed two courses in the university's law school, Torts and Civil Procedure. I'll always remember the first day of Torts. The arrogant professor began his first class by quoting from a poem which mentioned the term "fellow servant". He said something like "I don't suppose anyone here (about 70 first year law students and me) can tell me what this is from. The poem was related to my field, so I was very familiar with that Butch Weldy epitaph from Edgar Lee Master's Spoon River Anthology, and I quickly provided that information to the professor, who was visibly upset. "never before in 22 years of teaching,(etc)" I ruined his first lecture, which had always focused on the narrow and limited education of most law students.

What an ego.

Cowboyneal, it seems to me that WRONGFUL DEATH is the basis of a potential claim, the tort. NEGLIGENCE is why an event may be actionable, if damages resulted . Also, one does not become an heir until one inherits, something that cannot happen until the person bequeathing is dead. Until then, there are presumptive heirs, persons who will inherit, but who have not yet done so, and who may have no claim on the property. There are exceptions, as with EVERYTHING in the law.

And it is true that no waiver you sign can waive another person's right to sue, except in situations when it can. (See, I did learn something in my two law school classes.)