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

[ROMO DIVER]

Going back to the Waiver. I dare say that the equipment was not picked up and returned the same day so why could it not be argued that it was a multiple day rental? I know that our divers pick up their gear on friday and return it on Monday for a Sat. dive. That sounds like multiple days to me.

 

[Amphiprion]

As divers, we can all say that the the deceased was either being careless or that in any event it wasn't the dive shop's fault. However, this is not a ruling on whether the dive shop will be found negligent. This is a California appeals court decision on whether the heading of a liability waiver is part of the waiver itself. The ruling seems narrow in my opinion, but I am not licensed in California.

This hurts the dive shop in terms of legal fees because the summary judgment was overturned. However, I doubt that the deceased's family gets a penny unless there is a settlement.

 

[Herk_Man]

Personally, I find the concept of a release that tries to protect a shop from a suit based upon the shop's negligence to be offensive. In practice, the number of renters who are in position to thoroughly examine and verify all aspects of rental gear is probably pretty small, and the shop ought to be responsible for verifying the quality and quantity of gas in a tank they rent. If that weren't the case, then why would anyone have ever been upset with Gundi? After all, the issues there were a result of gas quality, and it would have been the responsibility of the divers to test that before using the tanks, right?

No piece of paper should release someone from responsibility for the results of their own negligence.

That's a load of crap, unless the shop did something negligent. This is clearly a case of someone renting gear, not taking responsibility for their own negligence in a sport/hobby that has inherent risks, and then trying to get someone else to pay for their own stupidity. Obviously the shop is not culpible in the claimant's running out of air or having a heart attack. This is a technicality in a poorly written release being exploited by greedy idiots and tort lawyers. A load of crap.

 

[MXGratefulDiver]

Going back to the Waiver. I dare say that the equipment was not picked up and returned the same day so why could it not be argued that it was a multiple day rental? I know that our divers pick up their gear on friday and return it on Monday for a Sat. dive. That sounds like multiple days to me.

Actually it could easily have been picked up and dropped off the same day ... Scuba Luv is an easy walk (pushing a hand cart with dive gear) from the dive site ...

... Bob (Grateful Diver)

 

[Notso_Ken]

I do not understand your point here. Yes, EVERY diver is perfectly capable of verifying the quantity of air in the tank. I see no evidence he didn't have air, just that he ran out. Was it first dive, second? Don't see any of that. I think you are jumping to conclusions that are not warranted.


Ken

Personally, I find the concept of a release that tries to protect a shop from a suit based upon the shop's negligence to be offensive. In practice, the number of renters who are in position to thoroughly examine and verify all aspects of rental gear is probably pretty small, and the shop ought to be responsible for verifying the quality and quantity of gas in a tank they rent. If that weren't the case, then why would anyone have ever been upset with Gundi? After all, the issues there were a result of gas quality, and it would have been the responsibility of the divers to test that before using the tanks, right?

No piece of paper should release someone from responsibility for the results of their own negligence.

 

[ameneon]

On every scuba forum I read in all threads about scuba trips people are recommended to bring their own equipment. At a minimum their regulators, gauges etc, because there is so much lack of maintenance on renting gear. Something is very wrong with the industry when this is the norm. Maybe suits such as this one can at least help reduce this problem just abit.

 

[justintimetobelate]

Liability waivers do not protect against gross negligence. If someone was negligent then fine so be it sue. However in this case I don't see negligence on the dive shop as being the cause.

The appeals court's decision, to me, seems to be because of the previous courts ruling. The waiver was used as evidence by the plaintiff for the appeal. However barring any evidence that I have not seen I can't foresee a judgment in favor of plaintiff, then again who knows with some jurors.

The use of ambiguous language is quite common in law, hence why there is an appeals process.

In order to write a iron clad liability waiver the thing would need to be dreadfully long, protect every possible instance.

My question is did this gentleman even read the waiver or did he just make his mark like most people do?

 

[Rhone Man]

Personally, I find the concept of a release that tries to protect a shop from a suit based upon the shop's negligence to be offensive.

That's a load of crap, unless the shop did something negligent.

Sounds to me like you guys are arguing at cross purposes.

In practice, many jurisdictions restrict by statute the ability to disclaim responsibility for personal injury and death (for example, see the Unfair Contract Terms Act 1977 in the United Kingdom).

I always liken it to the ebb and flow of the tide. The prevalence of widely worded waivers serves to counteract the problem of courts imposing liability on people who are not realistically at fault but were in some way connected with the incident. I always remember a lawyer at a press conference who acted for the victims of 9/11 and he was settling their claims against the Federal Government for failing to prevent 9/11, and he justified himself with the comment: "We couldn't take the risk that the jury would think 'Heh, some muslim fanatics were responsible for this, not the US Government.'" Really? Yah think?

 

[DandyDon]

On every scuba forum I read in all threads about scuba trips people are recommended to bring their own equipment. At a minimum their regulators, gauges etc, because there is so much lack of maintenance on renting gear. Something is very wrong with the industry when this is the norm. Maybe suits such as this one can at least help reduce this problem just abit.

I don't know about over there, but over here - nah. US companies are already under enough pressure and I suppose the same goes for Canadians. South of the US where divers, cruise boaters, and other tourists go by the thousands every day - it's a different story.

If someone is injured or killed in the Caribbean and Latin America area, the news is generally suppressed as bad for tourism. Even if it's because of negligence or a mistake of the operator, suing them in their courts would generally be too expensive and not likely rewarding. Warnings are published my our State Department like on Mexico but go largely ignored.

There was a recent Carbon Monoxide scare on Cozumel, but any facts that eventually came out were well hidden. That operator is no longer operating at that resort, but still does business on the island. A few divers are starting to carry and use CO testers and report their results here. Some European countries have legal limits for CO in scuba air, but none in CALA that I know of.

The general rule still stands: When you leave the US, you leave the US. Cover your ass!

 

[Rhone Man]

A few quick thoughts (some of which I posted on another thread):

• Not surprising that the court threw the waiver out. Liability exclusion clauses are always interpreted contra preferendum (ie. against the person whom they protect). Unless the drafting is spot on, the court will ignore them.
• My least favourite parts of the US legal system are (i) punitive damages (giving a huge profit motive to lawyers), and (ii) that they never adopted the British rule that the loser has to pay the winner's legal costs (cuts out an awful lot of frivolous lawsuits).
• Best waiver clause I ever read was not a waiver at all - it was a contractual undertaking by the diver to at all times abide by PADI safe diving practices. Given that almost every diving accident involves some element of fault on the part of the diver, that is a significant fillip for the defendant, and not subject to the contra preferendum rule.