Merged: Liability Releases - shop sued diver's death, Catalina Island 2005

[Pubcrawler]

In the U.S. there are a couple difficulties in drafting liability waivers depending on the jurisdiction in which the loss occurs. In some places those types of 'releases' are considered 'exculpatory clauses' and are just not enforceable. The theory being there's no real incentive to be safe when by contract one can pass one's own exposure for one's own negligence on to another. On the other-hand, some jurisdictions will permit enforcement of a pre-loss waiver of liability under the theory that if loss liability is considered non-waivable then many valuable human activities may not even be offered us in the first place. To compound the confusion, there are a bunch of different combinations and permutations of those two general theories. The point is, it's a bit dangerous to haul down a document off the internet and modify it for use without at least running it past an attorney in the specific geographical area in which you are going to be conducting business. Like Rhone Man said above, the presumption is usually that contracts are construed against the drafter, and that is especially true when the issue deals with enforcement of an exculpatory clause or pre-loss release.

 

[k ellis]

The theory being there's no real incentive to be safe when by contract one can pass one's own exposure for one's own negligence on to another.

This is what was explained to me once by an attorney. You simply cant write off 100 percent liability. The willful disreguard for safety under the expectation a waiver will save you from litigation falls under gross negligence (cant spell sorry)

 

[Pubcrawler]

K Ellis has another good point. In many places pre-loss releases apply at best only to simple negligence. That is the failure to use 'ordinary care' to avoid injuring another. If the injured party can prove 'gross negligence', which, depending on where you are, might be 'more than mere negligence', a 'wilful and wanton disregard' for the safety of others or 'recklessness,' the release may be totally ineffective even if well drafted.

 

[openmindOW]

Ok. Let's get real.

I know this is going to upset someone's political beliefs. Oh well.

There are a couple of people who appear to believe that waivers should control in all circumstances. If you are one of those folks, let em ask ya' this. Have you ever signed a waiver without reading it?

When you use a sfotware application and click on the "I agree" button, you have probably waived rights. (Did you really read all that stuff anyway?)

When you got a credit card, you signed a liong agreement, which you probably didn't read. It contained a waiver.

Waivers are everywhere. There are so common that they have become meaningless. People don't read them.

 

[drbill]

While I do not know the particulars of this specific case, I do know the procedures of the dive op in question since I have dived with them for a long time and worked for them part-time as well. The procedures in renting a tank are for the shop staff to have the tank checked for pressure before releasing it. This is done either with the non-submersible pressure gauge adjacent to the filled tanks, or sometimes by hooking up the reg to check it.

If the tank were "empty," it would seem pretty apparent that the pressure check would catch this prior to it leaving the shop. I find it hard to believe that the "experienced" diver took a tank that was low on air on a dive. If the tank had been checked with the SPG on the reg, does anyone think an "empty" tank would read 3,000 psi even if it were off a few hundred psi? Yes, it could happen... but I seriously doubt it.

The issue of over weighting is the diver's responsibility. An "experienced" diver should have a good idea of how much weight he or she needs under given conditions. Even if the diver were a warm water diver, I would imagine that they would under weight themselves when diving in a 7mm in cold water... seen that happen many times out here.

The phrase in the liability release that seems to be getting the attention of the appeals court judge involves the phrase "multi-day diving." Since rentals from the shop are for a 24-hour period rather than for a single day, they are considered multi-day rentals. The wording for the liability release itself was apparently authored by PADI's chief legal person per the shop owner.

 

[DandyDon]

Yeah this is pretty much a farce. This part is humorous even...

The issue of over weighting is the diver's responsibility. An "experienced" diver should have a good idea of how much weight he or she needs under given conditions. Even if the diver were a warm water diver, I would imagine that they would under weight themselves when diving in a 7mm in cold water... seen that happen many times out here.

Of course they gave you too much weight dodo head. Otherwise you'd be complaining that you couldn't dive because you were all the way at the point with insufficient lead. They gave you plenty, for you as the carded diver to use what you needed - not see if you could wear it all... :silly:

 

[ItsBruce]

There is a very odd kind of logic here: Empty tank / overweighted diver. If the tank was empty then the diver would have been around 4 pounds buoyant upon entering the water. Thus, he would have needed an extra 4 pounds or so just to descend.

One thing I'd really like to know is what Ken Curtis has to say about the gauge. This is a L.A. County case and Ken was probably the coroner's forensic expert on the matter. Ken, where are you?

 

[DandyDon]

I don't think they ever claimed it was an empty tank - just short. Poor excuse as all he had to do was ask for another, but the family & lawyer may not know that. Having more lead than he needed was just good business, and his call to decide how much.

I emailed Scuba Luv about this thread. I was surprised she remembered me, but she reminded me of a hurricane story I told her. Anyway, they're certainly not going to post, but appreciate our support - and might be reading.

The other side may be reading too. If so, I am sorry about the loss, but the case stinks.

 

[Farty]

This is terrible tragedy for the family and now unfortunately for the scuba shop - no matter who wins all have sleepless nights.


If there is one thing (and there is probably more) the shop should not be liable for, then it's weight. Casino point is one of the best shore dive spots for checking buoyancy before you start diving - it's not like you have to kick 200 years to get to 6 feet depth.

If I ignore safety for second, why would you dive overweight (and I mean more than few pounds)? That is so uncomfortable and ruins the whole dive.

 

[stakanak]

I am wondering why/how an experienced diver would run out of air at 60'? The gauge would have to have been off by over 500 psi, and he still would not have had time for a safety stop not withstanding having reserve when surfacing.
Seriously, is this a regular occurrence with analogue SPG's?
Good Diving!