ItsBruce
Contributor
It seems apropos to put this under "Near Misses and Lessons Learned."
The California Court of Appeals for the Second Appellate District just released its decision in a case involving a diver's death in Catalina. The decision is important because it is likely to directly impact liability releases used by shops and dive operators everywhere. Here is the story:
Raffi Huverserian and his son, Ari Huverserian, rented scuba diving equipment from Catalina Scuba Luv. Raffi Huverserian executed an equipment rental agreement which included language purporting to release Catalina Scuba Luv from any claims or liabilities. It stated in bold, underlined print: Equipment rental agreement, liability release and assumption of risk of scuba & snorkel gear for boat dives or multiple day rentals Following this is text in unemphasized type, it said: This agreement is entered into between Catalina Scuba Luv and rentor and is a release of the rentor[]s rights to sue for injuries or deaths resulting from the rental and/or use of this equipment. Rentor expressly assumes all risks of skin and/or scuba diving related in any way to the rental and/or use of this equipment. Rentor hereby acknowledges receipt of the equipment is in good working condition and that he/she has examined the equipment to ensure that it is free from defects, including checking both the quality and quantity of air in any scuba tank(s) rented. Rentor also understands that Catalina Scuba Luv and its employees, owners, officers, or agents shall not be held liable or responsible in any way for any injury, death or other damages to rentor or his/her family, heirs, or assigns which may occur as a result of the rental and/or use of the equipment, or as a result of product defect, or the negligence of any party, including the released parties, whether passive or active. I have carefully read and understand the above agreement. By signing this agreement, I exempt and release Catalina Scuba Luv and all related entities as defined above, from all liability or responsibility whatsoever for personal injury, property damage, or wrongful death as a result of renting and/or using the equipment, however caused resulting but not limited to product liability or the negligence of the released parties. Rentor agrees that he/she will be charged for damaged or missing gear.
The Huverserians did not rent the equipment for boat dives or multiple days.
The Huverserians took the dive equipment to Casino Point Dive Park in Avalon and entered the water. Raffi Huverserian ran out of air at a depth of 60 feet. He made a controlled ascent by breathing with his son, but went into cardiac arrest on the beach. Although he was resuscitated in Avalon, he died the next day at UCLA Medical Center.
Raffi Huverserians wife, son, and daughter sued Catalina Scuba Luv for wrongful death.
Catalina Scuba Luv asserted that because of the release language in the rental agreement, it had a complete defense and that as a result, it was entitled to a judgment as a matter of law without even the need for a trial. The trial court agreed and dismissed the case.
The Court of Appeals reversed the judgment in favor of Catalina Scuba Luv.
It found that by virtue of the boldface, underlined language the exculpatory language that followed was limited to persons who rented equipment for a boat dive or multiple day rentals. Since the Huverserians did not fall into either category, the language did not apply to them. As a result, the language did not serve as a defense and Catalina Scuba Luv was not entitled to have the case dismissed.
It is important to note that the court did not say Catalina Scuba Luv was liable or that an appropriate release would not have been effective.
Any shop or operator who uses release language should check what it actually says and see if it might be read to limit itself. (I am hesitant to suggest that anyone have an attorney look over their release because I don't want anyone suggesting that I'm trying to make business for lawyers...but as for myself, I would never consider letting an attorney service my regulator.)
The California Court of Appeals for the Second Appellate District just released its decision in a case involving a diver's death in Catalina. The decision is important because it is likely to directly impact liability releases used by shops and dive operators everywhere. Here is the story:
Raffi Huverserian and his son, Ari Huverserian, rented scuba diving equipment from Catalina Scuba Luv. Raffi Huverserian executed an equipment rental agreement which included language purporting to release Catalina Scuba Luv from any claims or liabilities. It stated in bold, underlined print: Equipment rental agreement, liability release and assumption of risk of scuba & snorkel gear for boat dives or multiple day rentals Following this is text in unemphasized type, it said: This agreement is entered into between Catalina Scuba Luv and rentor and is a release of the rentor[]s rights to sue for injuries or deaths resulting from the rental and/or use of this equipment. Rentor expressly assumes all risks of skin and/or scuba diving related in any way to the rental and/or use of this equipment. Rentor hereby acknowledges receipt of the equipment is in good working condition and that he/she has examined the equipment to ensure that it is free from defects, including checking both the quality and quantity of air in any scuba tank(s) rented. Rentor also understands that Catalina Scuba Luv and its employees, owners, officers, or agents shall not be held liable or responsible in any way for any injury, death or other damages to rentor or his/her family, heirs, or assigns which may occur as a result of the rental and/or use of the equipment, or as a result of product defect, or the negligence of any party, including the released parties, whether passive or active. I have carefully read and understand the above agreement. By signing this agreement, I exempt and release Catalina Scuba Luv and all related entities as defined above, from all liability or responsibility whatsoever for personal injury, property damage, or wrongful death as a result of renting and/or using the equipment, however caused resulting but not limited to product liability or the negligence of the released parties. Rentor agrees that he/she will be charged for damaged or missing gear.
The Huverserians did not rent the equipment for boat dives or multiple days.
The Huverserians took the dive equipment to Casino Point Dive Park in Avalon and entered the water. Raffi Huverserian ran out of air at a depth of 60 feet. He made a controlled ascent by breathing with his son, but went into cardiac arrest on the beach. Although he was resuscitated in Avalon, he died the next day at UCLA Medical Center.
Raffi Huverserians wife, son, and daughter sued Catalina Scuba Luv for wrongful death.
Catalina Scuba Luv asserted that because of the release language in the rental agreement, it had a complete defense and that as a result, it was entitled to a judgment as a matter of law without even the need for a trial. The trial court agreed and dismissed the case.
The Court of Appeals reversed the judgment in favor of Catalina Scuba Luv.
It found that by virtue of the boldface, underlined language the exculpatory language that followed was limited to persons who rented equipment for a boat dive or multiple day rentals. Since the Huverserians did not fall into either category, the language did not apply to them. As a result, the language did not serve as a defense and Catalina Scuba Luv was not entitled to have the case dismissed.
It is important to note that the court did not say Catalina Scuba Luv was liable or that an appropriate release would not have been effective.
Any shop or operator who uses release language should check what it actually says and see if it might be read to limit itself. (I am hesitant to suggest that anyone have an attorney look over their release because I don't want anyone suggesting that I'm trying to make business for lawyers...but as for myself, I would never consider letting an attorney service my regulator.)
