Is it common in waivers?

[Lemonade]

I usually do read diving waivers that I sign, mostly out of curiosity, and usually find nothing interesting, but this one caught my eye.

It has a clause releasing operator of the responsibility even in case of “willful, active negligence.”
How common is it to include a clause like that?

"...as a result of any negligence, wanton or willful, of a party, including the Released Parties, whether passive or active."

 

[MXGratefulDiver]

I dunno ... I use this one ...

http://darwin.bio.uci.edu/~rvilla/waiver.html

... Bob (Grateful Diver)

 

[artdive]

we gat the same here

 

[Lemonade]

I dunno ... I use this one ...

http://darwin.bio.uci.edu/~rvilla/waiver.html

... Bob (Grateful Diver)

Finally, one that was worth reading!

 

[rab]

I dunno ... I use this one ...

http://darwin.bio.uci.edu/~rvilla/waiver.html

... Bob (Grateful Diver)

That's great.


As for Lemonade's question, can that kind of clause really stand up in court? Wouldn't "active negligence" be about a half-step from "sabotage"?

I'd love to hear an actual lawyer chime in on this one. (Or at least an operator who's had to get a lawyer to craft a water-tight waiver. )

-Rob

 

[O2BBubbleFree]

That's great.


As for Lemonade's question, can that kind of clause really stand up in court?

-Rob

Then again, wouldn't it always pretty much boil down to who has the best lawyer, waiver or no?

 

[freediver]

I dunno ... I use this one ...

http://darwin.bio.uci.edu/~rvilla/waiver.html

... Bob (Grateful Diver)

Sheez that is good! Do you have to sign in blood or will ink suffice?

 

[ScubaDadMiami]

It is a question of State law. Here in Florida, the Florida Association of Dive Operators is a pretty active lobby. California also has a pretty active trade association. Then, there are the training agencies as well.

I am retired now from practicing law. So I have not checked on case law in regard to this issue in some time.

However, I seem to recall these clauses being upheld more and more as a trend over the years. In general, this is in direct conflict with prior case law that held that one can never waive acts of negligence of others.

Oh, the times, they are a changin'.

 

[O2BBubbleFree]

Wonder what would happen it I lined through that clause, initialed the line-through, and signed it. Would the dive operator notice?

How would that stand up in court?

 

[MikeFerrara]

Wonder what would happen it I lined through that clause, initialed the line-through, and signed it. Would the dive operator notice?

How would that stand up in court?

In the US most shops use canned releases provided by the agency. If they've had any amount of practice at this they'll notice. The deal is simple. You sign it as is or you don't take the class.

In theory (and I'm not a lawyer) they can still be held responsible for failing to act as a reasonable prudent pro.