PADI Liability Release Form EU vs Non-EU

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grassybreakfast

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I am planning my first overseas trip to Mexico (I am based in the UK, and we are still using the EU form despite Brexit), and just saw the non-EU release form, and thought the differences are very interesting.

For comparison:
EU - https://www.davyjonesdiving.com/download/PADI-Statement-of-Risks++-EN.pdf
Non-EU (Americas) - https://www2.padi.com/mypadi/assets/0/3206/3212/3222/5910/6e407be2-4a88-4856-b1ce-5912c050604e.pdf

From the EU form, there is only a release of liability for things that are the customer's fault -
[...] accept any responsibility for any death, injury or other loss suffered by me to the extent that it result
from my own conduct or any matter or condition under my control that amounts to my own contributory negligence.
And specifically only applies if..
[...] In the absence of any negligence or other breach of duty by the dive professionals conducting this programme [...]

On the Non-EU (Americas) form, the agreement is to release all liability, even negligence of the operator!
[...] FROM ALL LIABILITY OR RESPONSIBILITY WHATSOEVER FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH HOWEVER CAUSED, INCLUDING BUT NOT LIMITED TO THE NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE.

I guess this is probably not enforceable anyways, and probably just another example of the American way of just throwing everything into a liability release to try to intimidate people from suing them. I remember seeing a lot of forms like this when I lived in the US, but had forgotten about it until I saw this. I guess they can't do that in the EU because of stronger consumer protection laws.

Obviously (hopefully) none of us would have signed it if we thought it was actually enforceable, but isn't this all a bit silly? Anyone of the legal profession happy to explain what's going on?
 

Jcp2

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It must be standard. I was in the Rockies in Canada (B.C.) and this disclaimer was on the form for a whitewater rafting trip. We signed it but a family from Germany was not happy about it. After making it clear that they would not sign it, it was made clear to them that they had driven 3 hours for a view of the parking lot, as they would not be allowed on the raft. They changed their minds.
 

lowwall

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I am planning my first overseas trip to Mexico (I am based in the UK, and we are still using the EU form despite Brexit), and just saw the non-EU release form, and thought the differences are very interesting.

For comparison:
EU - https://www.davyjonesdiving.com/download/PADI-Statement-of-Risks++-EN.pdf
Non-EU (Americas) - https://www2.padi.com/mypadi/assets/0/3206/3212/3222/5910/6e407be2-4a88-4856-b1ce-5912c050604e.pdf

From the EU form, there is only a release of liability for things that are the customer's fault -

And specifically only applies if..


On the Non-EU (Americas) form, the agreement is to release all liability, even negligence of the operator!


I guess this is probably not enforceable anyways, and probably just another example of the American way of just throwing everything into a liability release to try to intimidate people from suing them. I remember seeing a lot of forms like this when I lived in the US, but had forgotten about it until I saw this. I guess they can't do that in the EU because of stronger consumer protection laws.

Obviously (hopefully) none of us would have signed it if we thought it was actually enforceable, but isn't this all a bit silly? Anyone of the legal profession happy to explain what's going on?
It is state dependent. Many states will not allow waivers of liability for acts of ordinary negligence to stand up in court. And none (?) will allow it for grossly negligent, reckless or intentional behavior on the part of the operator.

But some will allow it as a defense to a claim of ordinary negligence. The usual rule is that the waiver has to be unambiguous and the person signing has to clearly understand what they are giving up. There are other requirements depending on the state. For example, it may not be allowable for children to waive this right even if the parents sign.

Here's how a few of the popular diving states handle this:

Florida - can waive ordinary negligence, but not gross negligence. Parents can waive their children's right to collect damages only for the inherent risks of an activity, not negligence.

California - can waive ordinary negligence, but not gross negligence. Parents can waive their children's right.

Hawaii - can't waive negligence, only allows waivers for damages resulting from “inherent risks that have been fully disclosed to the customer.”

I would assume that it is included on the PADI form because they don't want to create different forms for different states and there's always the chance that victims may think the wording is valid even if it's not enforceable in their state.
 
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grassybreakfast

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It must be standard. I was in the Rockies in Canada (B.C.) and this disclaimer was on the form for a whitewater rafting trip. We signed it but a family from Germany was not happy about it. After making it clear that they would not sign it, it was made clear to them that they had driven 3 hours for a view of the parking lot, as they would not be allowed on the raft. They changed their minds.
I guess the only way for that to change is if enough people refuse to sign that it starts affecting their bottom line. Probably not going to happen though, as long as most people keep signing those without reading.

I found another thread where @Gareth J said
In the UK (and EU I believe), waivers are not worth the paper they are written on.

I have signed no end of American waivers on courses in the UK where the American agency requires the waiver to be signed to comply with the agency rules, but where they have no bearing in law. In fact, in some cases, they have been viewed as an attempt by the organisation to avoid their legal obligations, the courts really don't like that!
I am pretty sure PADI in the UK got into a lot of hot water about 15 years back after a death on an open water course, the fact a waiver had been signed made things a lot worse for them. Almost seen as an admission of negligence on their part.

If that's true maybe US courts should start doing that, too, as a way to limit these liability releases to keep growing to encompass everything under the sun.
 
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grassybreakfast

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It is state dependent. Many states will not allow waivers of liability for acts of ordinary negligence to stand up in court. And none (?) will allow it for grossly negligent, reckless or intentional behavior on the part of the operator.

But some will allow it as a defense to a claim of ordinary negligence. The usual rule is that the waiver has to be unambiguous and the person signing has to clearly understand what they are giving up. There are other requirements depending on the state. For example, it may not be allowable for children to waive this right even if the parents sign.

Here's how a few of the popular diving states handle this:

Florida - can waive ordinary negligence, but not gross negligence. Parents can waive their children's right to collect damages only for the inherent risks of an activity, not negligence.

California - can waive ordinary negligence, but not gross negligence. Parents can waive their children's right.

Hawaii - can't waive negligence, only allows waivers for damages resulting from “inherent risks that have been fully disclosed to the customer.”

I would assume that it is included on the PADI form because they don't want to create different forms for different states and there's always the chance that victims may think the wording is valid even if it's not enforceable in their state.
Very helpful thanks! If only there's some penalty for them to include unenforceable clauses...

Do you know what the situation is in Mexico by any chance? I did a quick search that wasn't fruitful.
 
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