Validity of bodily injury liability waivers

[Ricky B]

Of course, I have no assets in Virginia.....

Although I agree with the bulk of what you have posted, in which state you have assets is irrelevant. If a judgment is entered in a court that has jurisdiction over you, the judgment can be enforced in every state (either by suing on the judgment or registering it, depending on the state procedure).

A better question is whether any state other than Florida will have jurisdiction over you, and if it does, whether the case can nonetheless be transferred to Florida where all of the relevant events took place and most of witnesses will be.

---------- Post added May 19th, 2014 at 10:27 PM ----------

Are these waivers simply scare tactics used by the dive industry to discourage suits or are there actual, demonstrable, instances in which state or federal courts, in the United States, have held that these waivers are enforceable?
...
Anyone have a case on point they can cite?

No, they are not scare tactics because a family that wants to sue for the loss of a loved one (or perhaps not-so-loved but now the human equivalent of a lottery ticket to enter the court system) will consult a lawyer, and a lawyer will not be scared off by scare tactics.

Are waivers enforceable? The answer is absolutely, positively, they are--sometimes. And therein lies the rub.

It all depends on (1) the state (as the rules for waivers vary state by state), (2) the wording of the waiver (and the wording in different releases can vary substantially), and (3) the facts of the event (this is the giant variable).

Was it a case of a diver falling on the deck of a pitching boat wearing 60 pounds of gear while walking with his fins on? (Thanks, Wookie for suggesting that example.) Or was it a case of the dive boat leaving divers in the water and returning to port?

Just how negligent was the operator? How much did the diver contribute to the injury with his own negligence? Was the operator actively negligent (running over the diver while in the water) or was the operator passively negligent by failing to warn of a dangerous condition (Caution: Freshly buttered deck). How much should the diver have depended on the operator? Was the injury that occurred one that would have been expected, or was there obvious negligence but a freak injury far out of proportion that the negligence would have engendered?

Because the facts are so important, cases upholding releases are important mostly for determining whether the courts of the particular state will allow waivers at all, what the waivers have to say to constitute fair warning, what the procedure is to make sure the waiver is fairly and properly entered into, and so forth.

What a case on point won't do for you is tell you how effective the release will be in a particular case unless your facts are exactly the same as the facts in the case on point, including the wording of the release, and of course, the law of the state is the same.

So I see the quest to find "a case on point" as a footless errand.

---------- Post added May 19th, 2014 at 10:45 PM ----------

While you may generally limit potential suits to courts which would have jurisdiction over your place of business, I am far from confident that you can insist on all claims being heard in federal court. In fact, I'll go the extra step to say I would very much doubt that is universally enforceable. There are torts based solely upon Florida statutes that a federal court, in any state, would be extremely unlikely to hear absent one or more federal claims also being pursued.

If the injured party is from out of state, then he can have his case heard in federal court as long as the claimed damages are sufficient, and in a death case, they would most likely be. It's called diversity jurisdiction, and it's called that because the plaintiff and the defendants have to be from different states, e.g., Texas resident suing a Florida dive op. Diversity jurisdiction cases are decided using state law. It's a state law claim brought in federal court because the plaintiffs and defendants are residents of different states. So no federal claim needed.

 

[scagrotto]

I've also seen lawsuits where these liability waivers are apparently unenforceable, as the lawsuits proceed ...

That the lawsuit proceeds does not necessarily mean that the waiver is unenforceable. The concept behind waivers that purport to release somebody from every possible transgression are no different in principle than lawsuits that list every imaginable contributor to somebody's mishap. Contracts are routinely held to be enforceable despite specific clauses that are found to be unenforceable, and typically contain a severability clause specifically stating that unenforceable clauses won't invalidate the contract as a whole.

Of course arguments about whether or not the plaintiff adequately understood the risk will vary with the specific activity, but I'd guess that most people who aren't the plaintiff's attorney handling a case about SCUBA would allow that the activity itself is mostly irrelevant to the enforceability of the waiver. With that in mind, I offer the following examples, since I don't have a SCUBA specific case to offer (lists 2 California cases where waivers were upheld, but found that there were triable issues of fact as to whether or not gross negligence was involved):
Gross Negligence | CaseyGerry

The waiver tells the jury that the diver meant to be responsible for their own actions, understood the risks of their particular activity, and accepted those risks.

That makes sense except for the fact that the waiver may not always make it to a jury. If a judge, as a matter of law, rules on a motion in limine to exclude it.

A ruling that waiver is unenforceable and ruling that it's inadmissible are differnt things. Just because public policy or some deficiency makes a waiver unenforceable shouldn't mean it's not admissible as evidence that the diver knew and understood the risks.

The crew cleaning the deck with butter is gross negligence, and therefore cannot be waived. You fall down on the deck because you're a clumsy oaf ...

Suppose I fell because you washed it with detergent or bleach? You knew that could make it extra slippery, right?

My expectation is that in most places waivers are generally enforceable, so plaintiff's attorney is going to devote considerable effort to arguments that your actions weren't merely simple negligence, but rose to the level of gross negligence (after they unsuccessfully argue that the waiver is unenforceable). This is, of course, where it may come down to whose lawyer is better at arguing (not to be confused with which has the better argument).

my understanding is that a liability waiver is not binding on your heirs.

I'm fairly confident in saying that few courts would permit you to waive somebody else's rights (unless perhaps you have a power of attorney that specifically grants you that authority, which would be very unusual in terms of a liability waiver).

Finally, anyone who has never seen it may enjoy reading this thorough and entertaining (and also not SCUBA related) waiver:
Climbing Disclaimer Nelson Rocks Preserve - CascadeClimbers.com

 

[Ricky B]

My expectation is that in most places waivers are generally enforceable, so plaintiff's attorney is going to devote considerable effort to arguments that your actions weren't merely simple negligence, but rose to the level of gross negligence (after they unsuccessfully argue that the waiver is unenforceable). This is, of course, where it may come down to whose lawyer is better at arguing (not to be confused with which has the better argument).

Very good points.

Given that negligence vs. gross negligence is ordinarily a question of fact, I suggest that this may come down to whose lawyer has picked the better expert witness.

---------- Post added May 20th, 2014 at 10:12 AM ----------

I'm fairly confident in saying that few courts would permit you to waive somebody else's rights (unless perhaps you have a power of attorney that specifically grants you that authority, which would be very unusual in terms of a liability waiver).

Parents can usually waive the rights of their minor children (who have no capacity to grant a power of attorney). In fact, the IRS allows parents to sign the tax returns of minor children but won't allow a power of attorney to be used to sign a tax return for an adult.

As far as heirs, it may depend on the approach the state takes. If the wrongful death claim is the claim of the estate, then clearly a competent person can waive claims on behalf of his own estate. If the claim is by the family members for their loss, then a waiver that they didn't sign probably shouldn't be valid for those claims.

---------- Post added May 20th, 2014 at 10:16 AM ----------

Finally, anyone who has never seen it may enjoy reading this thorough and entertaining (and also not SCUBA related) waiver:
Climbing Disclaimer Nelson Rocks Preserve - CascadeClimbers.com

Whoa, that waiver rocks!

 

[scagrotto]

Parents can usually waive the rights of their minor children

I'd disagree even if that wasn't a very broad statement.

The risk with accepting a waiver purporting to waive the rights of a minor who isn't legally competent to do so is that when they come of age they probably have about 3 years to initiate their own lawsuit. Waivers signed by a parent have been upheld in some states, but I don't know if subsequent lawsuits have offered any clarity on what happens when the child reaches majority and thinks they have a case. As far as I know, in most states courts have not allowed parents to waive the rights of their minor children. The law generally gives parents quite a bit of leeway to be bad parents, but that's different than removing the child's chance to seek a remedy, and in some instances the state always puts the child's welfare ahead of parental wishes.

Here's a case from Michigan:
MSC Opinion: Woodman v. Kera LLC | Michigan Law Firm ? Attorneys | Warner Norcross & Judd LLP

the IRS allows parents to sign the tax returns of minor children

Actually, they require a parent or guardian to sign if the child can't, but any child that's physically capable of signing may do so. A parent signing the return allows them to be directly informed by the IRS of matters related to the return. That's expedient in most cases, but if the IRS doesn't ask for the child's permission first I'd agree that the IRS is letting the parent waive the minor's right to confidentiality. OTOH, if there's an allegation that the child willfully filed a false return I'm pretty sure that either the child is old enough to be culpable or not and the parent's signature will be irrelevant.

At any rate, the details of waivers are complex, and it's just more complex when the waiver is for a minor. FWIW, as a practical matter it's nearly impossible for a minor to skydive in the US. I'm not aware of any legal restrictions, but the industry has nearly a 100% consensus to refuse to accept the risk.

Whoa, that waiver rocks!

It's a great piece of work, but I'd be curious if it might be found unenforceable for being so over the top as to not be considered a legitimately serious legal document. Given the humor I can see that there may be a legitimate argument that people might not realize that they really are waiving their rights. I believe the property has changed hands, and that waiver is definitely not in use anymore. Nelson Rocks also has the protection of being in West Virginia, where a defendant is completely off the hook if the plaintiff is more than 50% responsible for their mishap.

 

[John_B]

Was it a case of a diver falling on the deck of a pitching boat wearing 60 pounds of gear while walking with his fins on? (Thanks, Wookie for suggesting that example.)

http://www.scubaboard.com/forums/scubapro/483369-seawing-nova-fins-dangerous.html

 

[B Lo]

I've not disappeared; I just haven't yet had a chance to go through the cases I've pulled but I would like to reply to a few comments I've seen in catching up on this thread.

If the defendant(s) have tried having the lawsuit dismissed on the basis of waiver or estoppel, based upon the signed waiver, and a judge rules against defendant(s) motion to dismiss or defendant(s) motion for summary judgment, the lawsuit would proceed in instances in which the waiver is likely to be unenforceable.

If a waiver is determined unenforceable, what basis would the defendant(s) have to bring it in? It would be of little to no probative value and any probative value it might barely have would be substantially outweighed by the danger or unfair prejudice, confusion of the issues, etc. It would almost certainly be kept out under federal rule 401 and/or 403 (or state level equivalent - e.g., F.S. 90.401 / F.S. 90.403) if a judge determines it is not enforceable in ruling on a motion in limine to exclude it. All it would do is taint the jury with irrelevant hearsay and it would go *poof*.

I'm not talking about should or shouldn't. I'm talking about what actually happens and what judicial opinions exist to support positions taken by divers and/or businesses in the dive industry.

That the lawsuit proceeds does not necessarily mean that the waiver is unenforceable. The concept behind waivers that purport to release somebody from every possible transgression are no different in principle than lawsuits that list every imaginable contributor to somebody's mishap. Contracts are routinely held to be enforceable despite specific clauses that are found to be unenforceable, and typically contain a severability clause specifically stating that unenforceable clauses won't invalidate the contract as a whole.

Of course arguments about whether or not the plaintiff adequately understood the risk will vary with the specific activity, but I'd guess that most people who aren't the plaintiff's attorney handling a case about SCUBA would allow that the activity itself is mostly irrelevant to the enforceability of the waiver. With that in mind, I offer the following examples, since I don't have a SCUBA specific case to offer (lists 2 California cases where waivers were upheld, but found that there were triable issues of fact as to whether or not gross negligence was involved):
Gross Negligence | CaseyGerry



A ruling that waiver is unenforceable and ruling that it's inadmissible are differnt things. Just because public policy or some deficiency makes a waiver unenforceable shouldn't mean it's not admissible as evidence that the diver knew and understood the risks.



Suppose I fell because you washed it with detergent or bleach? You knew that could make it extra slippery, right?

My expectation is that in most places waivers are generally enforceable, so plaintiff's attorney is going to devote considerable effort to arguments that your actions weren't merely simple negligence, but rose to the level of gross negligence (after they unsuccessfully argue that the waiver is unenforceable). This is, of course, where it may come down to whose lawyer is better at arguing (not to be confused with which has the better argument).


I'm fairly confident in saying that few courts would permit you to waive somebody else's rights (unless perhaps you have a power of attorney that specifically grants you that authority, which would be very unusual in terms of a liability waiver).

Finally, anyone who has never seen it may enjoy reading this thorough and entertaining (and also not SCUBA related) waiver:
Climbing Disclaimer Nelson Rocks Preserve - CascadeClimbers.com

 

[mselenaous]

Florida Injury Lawyer ? Blog Release Law Unenforceable for Diving Accident | Florida Injury Laywer

---------- Post added May 22nd, 2014 at 08:05 PM ----------

Here's another legal comment
Florida Injury Lawyer ? Blog Release Law Unenforceable for Diving Accident | Florida Injury Laywer

 

[Omisson]

Again, the negligence is your lawyer vs the operator's lawyer, and who has the better (or more convincing) one, and in reality, that's why operators buy insurance, to protect their asset from their negligence, should they prove to have the less skilled lawyer.

Here's how my insurance company explained it to me. The waiver is a tool which speaks to the mindset of the diver prior to the mishap. The waiver tells the jury that the diver meant to be responsible for their own actions, understood the risks of their particular activity, and accepted those risks. That's why waivers tend to say that diving is a dangeruous sport, and that you may die. It's spelled out for the diver, so if they choose not to read it, like Finnmom, and they do sign it, it's on them. That's why every paragraph must be initialed. We additionally require a witness to the signature. Anyway, there are some rules about waivers, especially in Florida. First, to be valid, the person to sign it must see it before they pay for the event. If you make them pay, then show them a waiver, they are "coerced" into signing it. Next, they must not change the wording. My lawyers advice is that if they try to change the wording, refund them and send them on their way. We've done that twice this year so far. Last, every box must be filled with something. Even if it's N/A.

My insurance does not cover me if the waiver is not properly filled out. It's in the terms and conditions on the front of the policy. It also doesn't cover me if I do something illegal. That includes violation of my USCG COI.

If you didn't write the first paragraph I'd be in agreement with how it was explained to you.

It's not the better lawyer.... It's the ability of the lawyer to match the facts to the controlling law. The waiver is a shield, helping defend an action - as you say, it can not excuse gross negligence- but can be a source for summary judgment for accidental injury or (simple) negligently inflicted injury claims.

Every state has slightly different law controlling the procedure - but unless the lawyer responding/defending files cross-and/or-counter claims it's difficult to hold the "ambulance chaser" to account.... And usually the defendant is happy to just have an end to the legal costs.

Also, because insurance companies actuarially analyze the case they may be willing to settle a case for "costs" - even if they are in the right- meaning what they offer what they would pay their attorneys to defend the action through trial.... It's risk management for them.

It's not a perfect system, but better than most.


Dan-O

Sent from my iPad using Tapatalk 2

---------- Post added May 23rd, 2014 at 12:53 AM ----------

Florida Injury Lawyer ? Blog Release Law Unenforceable for Diving Accident | Florida Injury Laywer

---------- Post added May 22nd, 2014 at 08:05 PM ----------

Here's another legal comment
Florida Injury Lawyer ? Blog Release Law Unenforceable for Diving Accident | Florida Injury Laywer

The FACTS in the case were clearly on the plaintiffs side to prevent summary judgment. The dive op did not gave the proper release signed for deep diving. They effectively invalidated the prior waiver (for shallow diving) by letting the couple do a deep dive.

Whether there was negligence is a still undetermined issue in the case.... All the court did was say the waiver was not sufficient to prevent the lawsuit.

What the appellate court also said was that a waiver PROPERLY executed and APPROPRIATELY fashioned to the activity WILL estopp a lawsuit under similar circumstance....

So florida's waiver law seems to be fairly solid.


Dan-O

Sent from my iPad using Tapatalk 2

 

[Ricky B]

If a waiver is determined unenforceable, what basis would the defendant(s) have to bring it in? It would be of little to no probative value and any probative value it might barely have would be substantially outweighed by the danger or unfair prejudice, confusion of the issues, etc. It would almost certainly be kept out under federal rule 401 and/or 403 (or state level equivalent - e.g., F.S. 90.401 / F.S. 90.403) if a judge determines it is not enforceable in ruling on a motion in limine to exclude it. All it would do is taint the jury with irrelevant hearsay and it would go *poof*.

The fact that a waiver is unenforceable does not mean it's irrelevant. One claim might be that the defendant is liable for failure to warn of a dangerous condition. (That's why you see all those little floor stands that say "Wet Floor"; they are a warning of a potentially dangerous condition, i.e., a floor that might be slippery). So a waiver could negate a failure to warn. In addition, a waiver might be relevant to assumption of the risk.

The motion ruling on the waiver might not be a motion in limine but a motion for summary judgment. Therefore, the validity of the waiver might depend on disputed facts, and disputed facts would be determined by the jury. For example, was the plaintiff obviously intoxicated when he signed the waiver just before getting on the boat? Did the defendant's employee give assurances to the plaintiff that undercut or negated the waiver?

There are a number of possible reasons why a waiver might be part of the trial even if the waiver is not adequate to keep the case from going to trial.

A waiver signed by the plaintiff is not inadmissible hearsay if the defendant wishes to introduce it.

---------- Post added May 22nd, 2014 at 10:54 PM ----------

It's a great piece of work, but I'd be curious if it might be found unenforceable for being so over the top as to not be considered a legitimately serious legal document. Given the humor I can see that there may be a legitimate argument that people might not realize that they really are waiving their rights. I believe the property has changed hands, and that waiver is definitely not in use anymore. Nelson Rocks also has the protection of being in West Virginia, where a defendant is completely off the hook if the plaintiff is more than 50% responsible for their mishap.

I had a similar thought about the somewhat flippant tone of the document, but in terms of being a disclaimer (as opposed to a waiver), I think it works. You can't read that and think that the activity is perfectly safe. As a waiver, it's questionable, for it appears that it was intended not to be signed. It says that by entering you agree to it. That may or may not be valid.

 

[oldschoolto]

I really don't know if this fits in here or not , But... Ran a skydiving dropzone for years and had made a waiver / Release ... Never was tested as no one was ever hurt that was "BAD"... A few bumps and bruises... One badly broken wrist...

Waiver was in " PLAIN ENGLISH " and spelled out just about everything that could go wrong and that " NO ONE could foresee what would happen or help the jumper once they left the plane... Waiver was done at the start of class before any money was paid... I read out loud the waiver and asked if it was understood after each paragraph... Then they would initial it... After the last page was signed and witnessed by another student and then signed by me...

I had lawyers look at it and everyone said... Kind of hard to say they didn't know it was a dangerous thing to do... They would be lucky if they "weren't" hurt.... Other dropzone operators though I was crazy to have a waiver like that... :shocked2:

Jim...

Like to add.... It's really a assumption of risk that works to slow down a lawyer....