Standard Release Form: Do You Read Before Signing?

[wanderlass]

I've been on many dive trips and admit I sign release forms without reading them ever, until now. Does anybody ever read them? I was just very surprised to find this statement twice on the General Liability Release & Assumption of Risk Agreement received today via email.

"BY THIS INSTRUMENT, DO HEREBY EXEMPT AND RELEASE ALL THE ABOVE LISTED
ENTITIES AND/OR INDIVIDUALS FROM ALL LIABILITY AND RESPONSIBILITY FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH, HOWEVER CAUSED, INCLUDING, BUT NOT LIMITED TO, PRODUCT LIABILITY OR THE NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE."

even when found negligent!?

 

[Steve_C]

Sometimes. Something like that is pretty standard. Note that depending on where you are that paragraph does not actually spare them legal action in case of gross negligence.

 

[Wookie]

Steve is right. Most folks have taken the release for gross negligence out, because it isn't enforceable. The problem with negligence is, anything that hurts you on my boat is construed as my negligence, so if you get stung by an urchin, I could be negligent because I didn't warn you, or because I didn't go clear the urchins out of your way, or because I didn't take the spines off of the urchin, etc. Gross negligence is if I push you into an urchin under water. Even if I were just goofing off, if I push you and you hit an urchin and are injured, I should have known better. That kind of activity can't be excused, but I can't reasonably be expected to make diving "safe".

The release speaks to the mindset of the releasing party. The release is used in court to show the judge and jury that what you meant was, you understand diving is a dangerous activity and you accept the risks. It is signed by you to speak for you after your death diving. If the release doesn't say what you feel, then by all means don't sign it. Don't expect to be let on the boat, either. If you come on my boat with a modified release, I will not let you board, on advice of my counsel and my insurance company. If you throw your hands up in a huff and say fine, get me a fresh release, we still won't let you board because that is considered signing under duress.

Basically, sign the release as presented, or don't. But the only recourse you have if you choose not to is to ask for your money back. See, if you sign up to come with me, you must accept the wording of the release before I take your money.

 

[fmerkel]

Capt. Frank was pretty clear. You can't sign away negligence. The problem is, the form no matter how worded and signed cannot prevent you from being sued. This is especially true for those left behind who don't understand the risks of diving and are VERY VERY upset, doubly or more so if the deceased is a minor.

The next unfortunate part, should a case go to trial, is the outcome is hugely influenced by the choices the lawyers make for the jurors, and how well they 'market' their case. "Negligence" is a very slippery word to lawyers and becomes a focal point to jurors. Prior life experiences massively color juror perceptions of the 'facts'. In a diving accident, the fact are often damn difficult to determine.

 

[raftingtigger]

My understanding is the release has more validity if it is signed BEFORE money is paid and if done as a part of the reservation process. Presenting the release as you board the boat (after taking time off, expense of travel, etc) even if the money is refunded is still a form of duress.

Even knowing that, I and I expect most divers, know that no signed release equals no doing the dive/trip. I come to the dive/trip knowing I'll sign the release - unless there is something onerous in there like willing you my first born son.

 

[BRT]

Why waste my time? My family will not sue anyway.

 

[wanderlass]

Thanks for the replies guys! I'm more confortable to note that this is pretty standard and that negligence is not gross negligence. Cheers.

 

[simcoediver]

Recent case of a diver getting run over by the charter dive boats propeller would be a good example of gross negligence on the boat owners part, the waiver would not apply in that situation , right?

 

[DeputyDan]

Also depends on the country you are diving in.

 

[oldschoolto]

The key to waivers standing up in court has been to spell out in plain English that the person understands all the risks involved and that they understand they can get a refund at any point..

Jim....