Question on the legal end of accidents

[lamont]

Hello all,
I recently had a chat with a commercial dive boat owner/operator about releases. She asked me if I make my friends sign releases before we go out on my boat. I looked at her funny and said "of course not, why would I do that" The lady strongly suggested I get a release form and make them sign it even though I'm not a commercial operation and I just take a few friends out from time to time. The Capt. went into all the reasons you could get sue's even thought they are just friends, not customers, etc. Then I had to leave so I didn't get much more info than that. I was wondering though.

1.) has anyone ever heard of someone getting sued by friends for an injury off a private boat resulting from a diving acident?

2.) does a release exist that is worded for a private boat taking friends out diving?

3.) If I decided to use such a thing, how do you suddenly tell all you're friends, hey, you can't dive with me anymore unless you sign this everytime we go out?

Thanks for the input.

Dave.

If you are a DM or Instructor you should probably think about liability waivers, particularly if the 'friends' are previous students, and you should have current insurance. If not, I'm not sure what the waiver would gain you. Waivers are routinely attacked in the courts. IANAL, but if your argument rests on a waiver to establish that scuba diving is inherently dangerous I think that your case is sunk and you need to find a better lawyer.

 

[OHGoDive]

This thought just popped into my head...

If I have a boat, and I'm taking friends out for a day of diving and I ask them all to sign a waiver, could I somehow be held to some higher level of responsibility should an accident occur?

I mean, if I had them sign a waiver, then I'm explicitly acknowledging that this is a serious activity, not just a bunch of friends going to the same spot in the same vehicle. And, by passing out the waivers, have I somehow "taken charge" of the whole operation?

I mean, if this is not a commercial venture, couldn't it conceivably make things worse if I had everyone sign a waiver and then not act as the person "in charge" if something went wrong?

Maybe it's better to just carry insurance and act like I had no clue that people could actually injure themselves diving.

 

[H2Andy]

If I have a boat, and I'm taking friends out for a day of diving and I ask them all to sign a waiver, could I somehow be held to some higher level of responsibility should an accident occur?

good thinking...

but you will be ok. you can only be negligent for breaching duties you owe to others.

the mere fact of having them fill a waiver does not impose additional duties on you, especially if you spell that out in the waiver (i would).

again, please consult a lawyer in your area who knows this type of law. details vary from jurisdiction to jurisdiction.

 

[james croft]

I remember a conversation I had with a crusty old boat captain I dove with in NC years ago. He told me he would risk his life to save someone in trouble, unless they had gotten in trouble being a dumb *****. I had signed a waiver but never really looked at the fine print. I wonder if he had that in writing?

 

[OHGoDive]

I remember a conversation I had with a crusty old boat captain I dove with in NC years ago. He told me he would risk his life to save someone in trouble, unless they had gotten in trouble being a dumb *****. I had signed a waiver but never really looked at the fine print. I wonder if he had that in writing?

Boy, if not being a dumb ***** is the criteria for being saved... well, it's been nice knowing y'all.

 

[redrover]

I think the part about risking his life is a relativity to keep in mind. Big difference between handing you your fins once in the water and diving down a couple hundred feet because you forgot to check your air.

 

[ItsBruce]

So it's everyone else's fault, Bruce? The jurors, the media, the system (read judges and police) and politicians (makers of the law)?

Everyone except the lawyers...

Well *someone* is out there convincing basically good people to do some pretty mean and possibly unethical things to each other on a fairly regular basis. And this "someone" has a lot less of an ethical compass in many cases than the mostly decent people who put their trust in them...

And don't kid yourselves. Lawyers act every bit as much in their own interests as they do I their clients' interests. They have businesses to run and their clients' cases are what those business need to survive. There must be good lawyers around and for my part you might be one of them...I can't tell for sure over the internet but you're a straight kind of guy which is a good sign. But frankly, with these kinds of conflicts of interest, *will* bring out the worst in people and even good lawyers can (an probably do) lose sight of what's best for their clients' due to the deafening "ching" "ching" of a lucrative suit....

In fact, some lawyers probably don't give a rat's arse about their clients as long as the money is rolling.... which is why we ask

"what do you call 500 lawyers on the bottom of the sea"

and answer

"a good start"

R..

In no particular order:

1. "What do you call 500 lawyers on the bottom of the sea?" I call it pollution.

2. In my experience, no one is convincing basically decent people to do mean or unethical things. If they'll do those things at all, they don't need convincing. On the other hand, someone who has a meritorous claim may not realize he or she is entitled to compensation or that the amount being offered as compensation is insufficient, and needs a lawyer to protect his or her interests.

3. Without doubt, lawyers have a stake and many put their interests on par with or ahead of those of their clients. That is plain wrong. I'll even admit to putting my interests first, particularly when I turn down a plaintiff's case either because the chance of success or the potential recovery or both, do not warrant the work it will take. And, I put my interests first when I turn down a defendant's case because they can't afford me. However, once I take a case, I give the client what I consider the best advice and recommendations I can.

4. Lawyers do have businesses to run. And, if they take bad cases or mishandle good ones, they won't be in business very long.

5. You would be amazed at how many people who have marginal cases lie about what happened in order to get a lawyer to take it. And, once the lawyer takes a case, getting rid of it is not particularly easy. Lawyers cannot just quit. They usually need the judge's permission to withdraw and getting permission usually requires jumping through a bunch of hoops.

6. As I said, lawyers don't make the law. In fact, the law basically says that a lawyer who takes on a case has a duty to vigorously advocate the client's case and that if doing so requires that the lawyer advicate a change in the law or an extension of existing law, the lawyer must advocate it. Its then up to the judge or jury to decide the case.

7. Lawyers litigate cases in accordance with the rules. Most play by the rules. Whether the rules are fair or not, they are the rules and so we play by them. If the rules get changed, we will abide by the changes. People should not complain about what we do when we play by the rules. Change the rules. (Look, I don't like the bit about defense lawyers trying to show reasonable doubt when they know their clients are guilty, but that's the rule. Get it changed.)

 

[paintsnow]

i heard of an incident where a married couple was helping a friend recover a sunken snowmobile.
the were ill prepared for the operation and i dont remember details but i know the husband ran low on air and turned to signal the wife to go up and she wasnt there
(low vis i think was why) and so he went up himself
after a while she didnt come up and he went back down(with a different tank presumably) and found her entangled and dead.

the parents sued
he infact neglected his duties as her buddy, but because his situation was more serious at the time and he had to preserve his own life they didnt get anything.

 

[WJL]

...I was wondering though.

1.) has anyone ever heard of someone getting sued by friends for an injury off a private boat resulting from a diving acident?

2.) does a release exist that is worded for a private boat taking friends out diving?

3.) If I decided to use such a thing, how do you suddenly tell all you're friends, hey, you can't dive with me anymore unless you sign this everytime we go out?

Thanks for the input.

Dave.

Dave,

I'm a lawyer. My practice is primarily in the areas of commercial litigation, personal injury and employment law. i deal with waivers regularly. With that background, here's some free advice.

1. Yes, it could happen. If somone gets hurt or killed diving off your boat, there is a risk that you may be sued, and a smaller risk that you may be found liable, which are two different things. Whether you win or lose or settle the lawsuit, it will be expensive and upsetting to deal with in a number of different ways.

2. Waivers are uncertain. You need to talk to a lawyer who knows the law in your jurisdiction to find out whether you can put together a enforceable waiver, including what kind of misconduct can be waived. This is critically important, because the exact same waiver language may be enforceable in one jurisdiction (generally speaking, this means the state you live in) and not enforceable in another.

You also need to consider admiralty law if you are operating on a navigable waterway. Admiralty law has its own world of rules and responsibilities. For just one example, the definition of "navigable waterway" is not static.

Depending on exactly what you are doing, such as collecting money (or beer, or whatever) in exchange for anything from your passengers, you may be engaged in a commercial enterprise, and subject to yet different rules. Just asking your passengers to sign a waiver may be grounds for arguing that you are engaged in commerce. The waiver will only be enforceable if there is consideration behind it, and if there is consideration behind it then some sort of exchange has taken place, which someone might argue means commerce.

In general, it's better to have a good waiver then have no waiver, once you've crossed the line into commercial operations. Whether you have or want to cross that line is a whole different discussion.

3. Rely on Insurance. Before whipping up waivers, or even talking to any lawyers (we are expensive, although well worth it), first talk to the insurance agent who sold you the liability policy for your boat. Tell the agent everything you are doing with guests and passengers on your boat and how you are doing it. Make sure that everything you are doing is covered by at least one policy, whether it is your boat, your homeowners or your umbrella policies, or whatever else you have. If you want to be careful, commit to writing what you told the agent, in case there is an episode of memory failure later in a coverage dispute.

If the insurance company wants you to get waivers from your passengers, it will tell you so and it will provide you with the waiver forms it wants signed. In that case, you tell your passengers that your insurance company requires you to get signed waivers. This will have the distinct advantage of being the truth.

If your insurance company doesn't require you to get waivers, then don't do it.

If you get sued, tell your insurance company about it. It defends you and pays the claim. That's what insurance is for.

 

[H2Andy]

Just asking your passengers to sign a waiver may be grounds for arguing that you are engaged in commerce. The waiver will only be enforceable if there is consideration behind it, and if there is consideration behind it then some sort of exchange has taken place, which means commerce.

consideration simply means that a benefit is bargained for between two parties. the benefit of diving together is ample consideration for signing a waiver.

you simply say "In consideration for XYZ to agree to dive with me and be my buddy, I hereby blah blah blah."

making it a mutual waiver will certainly help.

i disagree that asking someone to sign a waiver means suddenly the relationship becomes a commercial relationship. you can certainly expressely acknowledge that in the waiver (I agree that signing this waiver and thus being able to dive with XYZ does not constitute a commercial relationship with XYZ..." blah blah blah.

better to get the waiver signed than not. may not help, but it might.

of course, consult a lawyer in your area who specializes in this subject. this is not intended as legal advice.

3. Rely on Insurance. Before whipping up waivers, or even talking to any lawyers (we are expensive, although well worth it), first talk to the insurance agent who sold you the liability policy for your boat. Tell the agent everything you are doing with guests and passengers on your boat and how you are doing it. Make sure that everything you are doing is covered by at least one policy, whether it is your boat, your homeowners or your umbrella policies, or whatever else you have. If you want to be careful, commit to writing what you told the agent, in case there is an episode of memory failure later in a coverage dispute.

absolutely. if you pay insurance that will cover this type of liability, the carrier has the utlimate responsiblity to defend you should the crap hit the fan. as stated, check with them to see if they want a waiver signed.