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

[PhilEllis]

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.

Liability releases for many types of activities are good public policy. That is why the legal system in MOST states uphold them completely, providing they meet the elements necessary to properly inform and obtain release from liability for the specific activity covered by the release.

Without liability releases, MANY activities in which citizens participate would not be available to them. The public policy is best served when citizens are allowed to participate in a variety of activities from attending a rock concert to scuba diving on the California shores. Without liability releases, I can promise you that there would be no scuba gear for rent, no scuba tanks available at your local store for pickup, and certainly no organized scuba training. Absent a liability release, it would be impossible to get summary judgment in most injury cases for adventure sports and activities. The activity organizers simply could not afford the risk of defense.

Now, I know little about the fact of this case. However, some things are evident. Two people rented scuba gear to participate in risky endeavor. One of them apparently ran out of air. During the trauma of the event, a participant had a heart attack. He died, as do MOST people who have a severe heart attack. Now, someone what the gear rental place to pay for the heart attack.

Unfortunately, in this case, the store had a poorly written release. So, they will be forced to bear the gigantic cost of defending a suit for damages. It doesn't mean they will win....it simply highlights the importance of have a properly designed release. It appears that if they had included "rental for shore diving" in the bold text of the release, they would be out of this case.

However, this does not make releases themselves worthless and it certainly does not speak to the important public policy of allowing citizens to waive liability so that risky activities can be available.

Anyway, just my opinion.

Phil Ellis
Discount Scuba Gear at DiveSports.com - Buy Scuba Diving Equipment & Snorkeling Equipment

 

[Thalassamania]

Fillip? I don't get that word in this context. It usually means "something that excites" or "not very important."

 

[Rhone Man]

Unfortunately, in this case, the store had a poorly written release. So, they will be forced to bear the gigantic cost of defending a suit for damages.

To be fair, they will almost certainly be insured and it will be the insurers who will bear the cost of defending the suit (and as such will probably settle it).

However, you can safely bet what will happen to their premium next year.

 

[Rhone Man]

I was using it as in "benefit" or "boon". Maybe that is Brit slang.

 

[Thalassamania]

I seem to remember diving, training, going out on dive boats and renting gear long before waivers became de rigueur .

 

[k ellis]

Liability releases for many types of activities are good public policy. That is why the legal system in MOST states uphold them completely, providing they meet the elements necessary to properly inform and obtain release from liability for the specific activity covered by the release.

Without liability releases, MANY activities in which citizens participate would not be available to them. The public policy is best served when citizens are allowed to participate in a variety of activities from attending a rock concert to scuba diving on the California shores. Without liability releases, I can promise you that there would be no scuba gear for rent, no scuba tanks available at your local store for pickup, and certainly no organized scuba training. Absent a liability release, it would be impossible to get summary judgment in most injury cases for adventure sports and activities. The activity organizers simply could not afford the risk of defense.

Now, I know little about the fact of this case. However, some things are evident. Two people rented scuba gear to participate in risky endeavor. One of them apparently ran out of air. During the trauma of the event, a participant had a heart attack. He died, as do MOST people who have a severe heart attack. Now, someone what the gear rental place to pay for the heart attack.

Unfortunately, in this case, the store had a poorly written release. So, they will be forced to bear the gigantic cost of defending a suit for damages. It doesn't mean they will win....it simply highlights the importance of have a properly designed release. It appears that if they had included "rental for shore diving" in the bold text of the release, they would be out of this case.

However, this does not make releases themselves worthless and it certainly does not speak to the important public policy of allowing citizens to waive liability so that risky activities can be available.

Anyway, just my opinion.

Phil Ellis
Discount Scuba Gear at DiveSports.com - Buy Scuba Diving Equipment & Snorkeling Equipment

Phil with respect to this case I wont comment on this one in particular any more then I already have but what I can say is like I said earlier I had actually spoken to attorneys on this type of issue. Just because a waiver is in place doesnt 100 percent guarantee you wont be held accountable. In the instance for example you rent a car from a rental car place and sign a waiver. If they know beyond the shadow of a doubt that the brakes are defective but choose not to worry about because they have liability releases it wont hold in court. Waivers are only upheld in good faith.

What I am trying to say is you maintain your rental gear yearly and you are qualified to inspect it and say it fails for some reason that was beyond your control you may be covered. But if you know that a guage is off and rent it expecting a diver to know enough to pick up on the problem and adjust his diving to accommodate the error and dont tell the diver about it in advance then that falls under gross negligence (sorry cant spell that word)

But anyway I will to all of his friends and family I offer my condolences.

 

[Scared Silly]

Sure the release is wrong, but that doesn't mean the family aren't eejits for suing the dive op.

I hope if I ever die when diving due to something stupid I've done my family does not sue someone else for my own mistakes.

I do not think the family are idiots for suing, they are doing what they think they should do based on their knowledge - I bet yours might do the same.

Where is what I see:

Dad goes diving, rents equipment that has a possible defect, has an OOA event, dies of a heart attack.

They believe the equipment had direct affect on the death of their loved one. Quite reasonable.

First, the summary judgement gets tossed cause the shop had a faulty waiver. That issue is now between the shop and the source of the waiver. OT that is what is called a technicality - happens all the time. I once got out of a ticket cause I was cited for "Leaving my vehicle unattended in a restricted zone" when in fact I parked in a "No Parking Zone. The court threw it cause of a technicality.

The dad's experience as a diver and his health will be raked over the coals. As will the state of the equipment. What will be interesting is how the waiver might still be used. Though the waiver was faulty the fact still remains that it was signed. As such, he was making an acknowledgement of his ability to properly conduct a dive.

The other part that will come in culpability. Say the father was not in the shape portrayed or had some unknown heart defect that was found during the autopsy. Further, lets say they did not do all the proper pre-dive checks. Continuing on lets say the tank was short and the gauge reading was not accurate. All the plaintiff will need to do is show cause and effect between the gear and the accident and subsequent death to have a case. If a jury agrees then it will come down to to who is responsible for what. For instance say the father was predisposed to hear failure and was probably going to die from a scuba accident or a car accident or from mowing the lawn. Then the defense has less culpability as they were the trigger and not the cause.

Kinda like when you get hit by a car and your insurance rates still go up even though it was not your fault. You were still there ...



BTW There are measures in the court system to monetarily punish lawyers who bring frivolous law suits. Also in many civil cases and in some criminal cases the plaintiff when losing does pay the defendants legal expenses.

 

[rjack321]

Remember that exemption clauses are construed contra preferendum (ie. against the party they are intended to protect). If there is any ambiguity, it will be resolved in favour of the claimant party.

Exactly. And the defendant may very well prevail at trial. A better worded release would have avoided going to trial. Assuming the air quality was actually suitable (carbon monoxide can precipitate heart attacks) I hope they defend the suit rather than attempt to settle. There are minimum "industry" standards for gas quality though and not meeting those standards should not absolve a shop from liability. Do they make customers sign waivers to get fills?

 

[Rhone Man]

Kind of reminds me - I was looking a website a couple of years back where a captain was offering charters to the Andrea Doria. I wasn't thinking of doing it, but it was fun to look. Anyhow, the website stresses that before they leave the dock they need a waiver signed by you, and another signed by your wife, and both of them have to be notarised.

And I remember thinking to myself, well that's great and all, but unless the waiver has been drafted carefully it won't matter if the customer signs it in blood, it 'aint gonna help them in court!

 

[JohnB47]

I have two comments here:

First of all, it should be noted that the guy who rented the equipment and signed the waiver is not suing the shop - he is dead! It is his family that is suing.

Second, I have seen many cases where lawyers, either through ignorance, negligence, or a fraudulent attempt at ensuring future business, over-complicate the contracts they write to the point where they contain ambiguities that ultimately end up in court. If the waiver had simply included all rentals, without any reference to boat dives and multiple days, the shop would have had as much protection as a waiver can supply.