Legal considerations for the Fire on dive boat Conception in CA

[IT.]

I agree however the waivers put all the accountablility on the customer. The waiver holds the provider faultless. That is the problem. There is no shared accountability in the waivers you are made to sign to get a the service. I(f the waivers were legit, this discussion would not be taking place because the waiver holds the boat and its associates 100% faultless.

A waiver NEVER protects the operator from negligence.

 

[NAM001]

That could be bad news. IIRC from other threads, waivers don't release the provider from 'gross negligence,' so they're full protection, anyway. The nature of recreational scuba boat diving is that there is always risk, and the customer needs to accept assuming that risk as a condition of participating in the activity. Gear or a loose tank could fall and break your foot. You could stumble over something on the deck and hurt yourself. The boat might jerk up or down with a swell when you grab the ladder and injure your should (a guy diving out of North Carolina got a broke arm being too close to the boat, though ladder wasn't involved).

You're not forced to exchange your rights for services, as the services are non-essential and you're not forced to obtain them. The issue is not so much your actual rights as what a liability lawyer can convince a jury they are in the shadow of a tragedy. That some juries may be willing to find a known innocent party guilty just to hook the plaintiff up with money adds to the problem.

As a practical example, there are divers who, knowing about the Conception accident and deaths, would still go out on overnight live-board trips on a boat like it. Let them have their informed choice as a matter of free will.

Making everybody a target for lawsuits doesn't make everyone safe, it puts everyone in danger, and businesses hedge their risks by buying larger insurance policies and passing their costs on to us.

Neither is preventing a customer from attempting redress for a services failures.

Ebay tried that logic and lost in court. I did not suggest making everybody a target. Only that the waivers should be made to be clear that the responsibility is shared and not bore on the customer only as they currently do.

Ca passed a law prohibiting any service being able to forfeit they protections in exchange for service. Ebay then changed their user agrement again to say the customer forfiets protection provided by the new law and then got that shoved up their backsides also. Ebay is not a necessary service any more than a boat service is.

 

[Lorenzoid]

You can waive a future claim of negligence--"simple negligence" for foreseeable events, not "gross negligence." You can agree to assume certain risks. I don't think you can totally "waive" a future claim of breach of contract if that's what you mean by "services failure." There are some rights that just can't be waived, no matter what the waiver says.

 

[ChrisM]

I agree however the waivers put all the accountablility on the customer. The waiver holds the provider faultless. That is the problem. There is no shared accountability in the waivers you are made to sign to get a the service. I(f the waivers were legit, this discussion would not be taking place because the waiver holds the boat and its associates 100% faultless.

That's just simply not true.

I do this for a living

 

[ChrisM]

Neither is preventing a customer from attempting redress for a services failures.

Ebay tried that logic and lost in court. I did not suggest making everybody a target. Only that the waivers should be made to be clear that the responsibility is shared and not bore on the customer only as they currently do.

Ca passed a law prohibiting any service being able to forfeit they protections in exchange for service. Ebay then changed their user agrement again to say the customer forfiets protection provided by the new law and then got that shoved up their backsides also. Ebay is not a necessary service any more than a boat service is.

Are you saying that California holds waivers and assumptions of risk invalid?

 

[drrich2]

I did not suggest making everybody a target.

True. The problem is, the business can't get a solid handle on just what the standard will be, what will be required to be in compliance with it, whether they are in compliance, and what the costs of violation will be.

That's because you can't predict potential plaintiffs, their attorneys, juries and regulatory agencies.

Truth Aquatic's boat was in compliance with Coast Guard inspection, what means of exit from the bunk room were available to see for any who cared to look, etc...

The more liability you expose these operations to, the more burden will fall upon us all.

 

[drrich2]

If you have a client with a large economic loss (e.g., lifetime earnings of a deceased brain surgeon with small children to support), you will sue that peripheral 1% defendant because of the joint and several liability laws in California. In other words, that 1% liable defendant is responsible for 100% of the economic damages jointly and severally with the other more culpable defendants. You can therefore collect 100% of the economic damages from that one peripheral defendant where the more culpable defendants have zero money.

This, from an attorney, shows what I'm talking about. Consider the gross injustice of being held liable for 99% of damages when you were only found responsible for 1% of them, because the plaintiff couldn't find anyone else to wring it out of.

Richard.

 

[Wookie]

That's just simply not true.

I do this for a living

My professional liability lawyer and commercial general liability insurance company agree with you. A waiver speaks to the mindset of the person signing it at the time they signed it, but if your deck is slippery and the non skid worm, and they fall down, they will be digging in your pocket.

 

[ChrisM]

Waivers are a defense to liability, not immunity. The defendant has to prove that the waiver is valid, that it covers the scope of the conduct, and that no gross negligence, recklessness or intentional conduct occurred, and that there is no public policy prohibition against their enforcement. Just like a defense of no causation, or no damages, or the statute of limitations, you're still going to get sued even if you have a signed waiver, you just have to prove it's effective.

Most people either assume it's an immunity or completely worthless. Neither are true without more

 

[Wookie]

And Texas is absolutely considered a plaintiff friendly state as far as waivers go. I’d far rather be sued in California or Florida.