rmarrs:
Your grandmother-in-law had a terrible lawyer. She should sue him for malpractice.
Dave
Question on the legal end of accidents
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Your grandmother-in-law had a terrible lawyer. She should sue him for malpractice.
Dave
Rpeiffer
Registered
Thalassamania:
Don't know about anyone else, but as soon as I hear anybody say that, I get that warm feeling of smoke being blown up my........
Don't lie to your friends.
As captain, you may have:
1) taken them to a site beyond their capability
2) not adequately monitored weather, currents, conditions, etc.
3) not summoned assistance quickly enough
4) not had the proper emergency equipment on board
5) failed to inform the injured diver of conditions, potential hazards, etc.
6) had a boat with any sort of mechanical deficiency which may have compounded the incident
7) not taken adequate/appropriate steps during the rescue
8) had alcohol somewhere on board
Were I an uninformed, grieving family member, these are just a few of the things that I would consider going after the boat captain for. Whether any of them are provable or not, if someone leaves a stack of debt behind, their families are going to be looking for a way for someone else to deal with it. Likewise, if their insurance company pays out, you just know they're going to be looking for someone to share the costs.
If you have adequate liability insurance, you should be fine (do most policies cover taking friends out diving?). But if the waiver, as Andy inferred, lessens the cost of your defense, all the better.
Seems worth considering. If you have any assets at all (or hope to have any in the future), it's probably worth talking to an attorney and an insurance agent.
1) taken them to a site beyond their capability
2) not adequately monitored weather, currents, conditions, etc.
3) not summoned assistance quickly enough
4) not had the proper emergency equipment on board
5) failed to inform the injured diver of conditions, potential hazards, etc.
6) had a boat with any sort of mechanical deficiency which may have compounded the incident
7) not taken adequate/appropriate steps during the rescue
8) had alcohol somewhere on board
Were I an uninformed, grieving family member, these are just a few of the things that I would consider going after the boat captain for. Whether any of them are provable or not, if someone leaves a stack of debt behind, their families are going to be looking for a way for someone else to deal with it. Likewise, if their insurance company pays out, you just know they're going to be looking for someone to share the costs.
If you have adequate liability insurance, you should be fine (do most policies cover taking friends out diving?). But if the waiver, as Andy inferred, lessens the cost of your defense, all the better.
Seems worth considering. If you have any assets at all (or hope to have any in the future), it's probably worth talking to an attorney and an insurance agent.
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I agree, sorry if my sarcasm was not quite right up front.<G>Rpeiffer:
Since I slept in a Holiday Inn Express last night, I feel qualified to answer the OP's post!
1. Liability laws DO vary from jurisidiction to jurisdiction. Consult local counsel for an understanding of the law of your jurisdiction.
2. Waivers ARE worth the time and effort -- if only to help change the burden of proof. They probably do not need to be notarized or witnessed (again, consult counsel) -- if there is a question as to whether the victim actually signed it, that becomes a fact question. AND if you regularly require all people to sign one, that, in and of itself, can become a fact pattern in YOUR favor that the victim signed hers just as everyone else did.
3. Liability insurance IS an absolute necessity if you are going to take friends diving AND you have any assets you want to keep. It may not be that you'll be found liable but the biggest value may well be the obligation of your insurance carrier to defend you.
4. In addition to the family of the victim, you may also have to worry about the victim's insurance carrier if the victim survives but has significant medical care. The health insurance carrier (or the hospital if uninsured) will be looking to YOU if you had any liability in the accident.
The fact that you are not doing this for money merely reflects on the level of the duty of care -- not the question of ultimate liability for your actions. For example, did YOU pick the spot to dive knowing that the currents were bad (or NOT knowing because you hadn't looked at the current charts). Or did you pick a deep dive knowing that your friend hadn't done deep dives and just said (as I have) "Well, going to 100 feet is no different than going to 60 -- just deeper!" In retrospect "innocent" comments can loom large when the friend is now paralysed or dead.
1. Liability laws DO vary from jurisidiction to jurisdiction. Consult local counsel for an understanding of the law of your jurisdiction.
2. Waivers ARE worth the time and effort -- if only to help change the burden of proof. They probably do not need to be notarized or witnessed (again, consult counsel) -- if there is a question as to whether the victim actually signed it, that becomes a fact question. AND if you regularly require all people to sign one, that, in and of itself, can become a fact pattern in YOUR favor that the victim signed hers just as everyone else did.
3. Liability insurance IS an absolute necessity if you are going to take friends diving AND you have any assets you want to keep. It may not be that you'll be found liable but the biggest value may well be the obligation of your insurance carrier to defend you.
4. In addition to the family of the victim, you may also have to worry about the victim's insurance carrier if the victim survives but has significant medical care. The health insurance carrier (or the hospital if uninsured) will be looking to YOU if you had any liability in the accident.
The fact that you are not doing this for money merely reflects on the level of the duty of care -- not the question of ultimate liability for your actions. For example, did YOU pick the spot to dive knowing that the currents were bad (or NOT knowing because you hadn't looked at the current charts). Or did you pick a deep dive knowing that your friend hadn't done deep dives and just said (as I have) "Well, going to 100 feet is no different than going to 60 -- just deeper!" In retrospect "innocent" comments can loom large when the friend is now paralysed or dead.
It's been said many times already consult an attorney!! Waivers do have some value but not much.
Also talk to your insurance agent. Most private boat owners have insurance which covers accidents (I hope) if a friend gets hurt on board. But when you add diving to the mix the policy may not cover an accident even if it's not diving related. Insurance companies are notorious for trying to get out of paying.
Bottom line if there's an accident and someone finds a lawyer who can even come up with a novel theory of liability you're in for some tough times.
And being a lawyer, hey I do real estate, there are just way too many lawyers out there just waiting for what they think is a nice case.
So let me do my lawyer thing and add a disclaimer to the above advice
that it's not meant as legal advice.
But being a lawyer does have its advantages when diving. A shark will not attack me because of professional courtesy.
Also talk to your insurance agent. Most private boat owners have insurance which covers accidents (I hope) if a friend gets hurt on board. But when you add diving to the mix the policy may not cover an accident even if it's not diving related. Insurance companies are notorious for trying to get out of paying.
Bottom line if there's an accident and someone finds a lawyer who can even come up with a novel theory of liability you're in for some tough times.
And being a lawyer, hey I do real estate, there are just way too many lawyers out there just waiting for what they think is a nice case.
So let me do my lawyer thing and add a disclaimer to the above advice
that it's not meant as legal advice.But being a lawyer does have its advantages when diving. A shark will not attack me because of professional courtesy.
ArcticDiver
Contributor
To underline Peter's post: Although suits may be brought in the name of the injured or deceased it is often actually an insurance company at the reins. Many, I presume most or all, insurance contracts have within them a thing called a subrogation clause. In that clause the insured passes their rights to sue to the insurance company.
Regardless of the insured's desires it is the insurance company in the driver's seat. I've seen it cut both ways with a lot of resulting stress imposed on what had been to then friendly relationships.
Regardless of the insured's desires it is the insurance company in the driver's seat. I've seen it cut both ways with a lot of resulting stress imposed on what had been to then friendly relationships.
ronski101
Contributor
If people that you take out on your boat are unwilling to sign a liability release, they are not people that you want for friends. If your boat breaks down or you hit a log or your anchor breaks loose with no one aboard, or fog comes in and you miss the breakwater, etc. etc. you could possible be held liable. Just make sure that the signed releases aren't left on the boat. It is unfortunate that in this sue crazy day and age, immoral people are unwilling to accept responsibliity for their actions and are looking for a fast buck and you would be wise to protect yourself beforehand.
redrover
Guest
I’ll second the you can get sued with no assets, and fighting a stupid suit with absolutely no assets is very bad place to be. I’d worry about the surviving too. It’s quite disheartening to see what havoc people wreck on the innocent when they can afford to. And with insurance companies, it’s just their job, and just as terrible.
I'd consult with a couple of insurance companies and probably several attorneys to get the local perspective and options then make a choice.
And BTW, If somebody thinks or is advised to have a waiver I’m not offended. What they do to protect themselves is fine with me, I have my own insurance. If I don’t trust someone to behave responsibly I don’t go.
I'd consult with a couple of insurance companies and probably several attorneys to get the local perspective and options then make a choice.
And BTW, If somebody thinks or is advised to have a waiver I’m not offended. What they do to protect themselves is fine with me, I have my own insurance. If I don’t trust someone to behave responsibly I don’t go.
ItsBruce
Contributor
I am amazed by how much good and how much bad advice I see being brandished about here. The lawyers (and consultants to lawyers) seem to have the edge on good advice. Most of those providing common sense seem to have an edge. The non-lawyers who will tell you waivers are effective or are not effective, are questionable.
For myself, if I ever take friends out for a dive, I'lll ask for a waiver. I'll tell them the truth, namely that a waiver will give me peace of mind because I don't want to end up in a lawsuit if the unthinkable happens. I'll tell them that I believe that the waiver means what it says. I'll never say it is just a formality or that it is meaningless. That's how waivers become unenforceable.
So long as I'm not involved in a business pursuit and no money or barter is involved, I will expect my boat insurance to cover most, if not all potential liabilities. (Since my specialty is insurance, I feel pretty comfortable with this expectation.) My homeowners insurance policy excludes liabilities arising from the ownership, maintenance or use of a watercraft, but whether a particular liability arises from that may be subject to debate. (For example, was the injury really one arising from the boat as a boat, or was the boat just the location where something happened?)
And, if I'm anywhere other than in my home waters, I'll consult with a lawyer there.
BTW: I'm aware of divers suing their buddies. I'm also aware of waivers being upheld and of them being rejected. The outcomes are dependent of specific facts.
For myself, if I ever take friends out for a dive, I'lll ask for a waiver. I'll tell them the truth, namely that a waiver will give me peace of mind because I don't want to end up in a lawsuit if the unthinkable happens. I'll tell them that I believe that the waiver means what it says. I'll never say it is just a formality or that it is meaningless. That's how waivers become unenforceable.
So long as I'm not involved in a business pursuit and no money or barter is involved, I will expect my boat insurance to cover most, if not all potential liabilities. (Since my specialty is insurance, I feel pretty comfortable with this expectation.) My homeowners insurance policy excludes liabilities arising from the ownership, maintenance or use of a watercraft, but whether a particular liability arises from that may be subject to debate. (For example, was the injury really one arising from the boat as a boat, or was the boat just the location where something happened?)
And, if I'm anywhere other than in my home waters, I'll consult with a lawyer there.
BTW: I'm aware of divers suing their buddies. I'm also aware of waivers being upheld and of them being rejected. The outcomes are dependent of specific facts.
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