Validity of bodily injury liability waivers

[tech_diver]

Originally Posted by mselenaous
Florida Injury Lawyer ? Blog Release Law Unenforceable for Diving Accident | Florida Injury Laywer

I read this article and it seemed reasonable until I came across this chilling quote,
"If the business really did not think there was a good chance that an injury would occur, they would not need a release for it."

I would argue that good businesses don't believe there is a 'good chance' that their customer will be injured. They use a release to protect themselves from that one rare chance that something could go wrong and someone could get hurt creating legal fallout which could financially devastate the business they spent years building.

My Opinion: The idea that the scuba industry in general needs waivers because they know there is a 'good chance' they will hurt people is repugnant. If he can have that view of our industry, I have no guilt over telling lawyer jokes.

 

[oldschoolto]

Originally Posted by mselenaous
Florida Injury Lawyer ? Blog Release Law Unenforceable for Diving Accident | Florida Injury Laywer

I read this article and it seemed reasonable until I came across this chilling quote,
"If the business really did not think there was a good chance that an injury would occur, they would not need a release for it."

I would argue that good businesses don't believe there is a 'good chance' that their customer will be injured. They use a release to protect themselves from that one rare chance that something could go wrong and someone could get hurt creating legal fallout which could financially devastate the business they spent years building.

My Opinion: The idea that the scuba industry in general needs waivers because they know there is a 'good chance' they will hurt people is repugnant. If he can have that view of our industry, I have no guilt over telling lawyer jokes.

No... People do stupid stuff all the time... Accidents happen all the time... "SCUBA DIVING IS VERY DANGEROUS" It'll kill you in a heart beat.. If you don't know that , And tell people that.... You are not living in the real world....

Jim...

 

[Ricky B]

Originally Posted by mselenaous
Florida Injury Lawyer ? Blog Release Law Unenforceable for Diving Accident | Florida Injury Laywer

I read this article and it seemed reasonable until I came across this chilling quote,
"If the business really did not think there was a good chance that an injury would occur, they would not need a release for it."

I would argue that good businesses don't believe there is a 'good chance' that their customer will be injured. They use a release to protect themselves from that one rare chance that something could go wrong and someone could get hurt creating legal fallout which could financially devastate the business they spent years building.

My Opinion: The idea that the scuba industry in general needs waivers because they know there is a 'good chance' they will hurt people is repugnant. If he can have that view of our industry, I have no guilt over telling lawyer jokes.

I suggest that you misread the quoted text, which led you to misunderstand it. The text does not say that "they" (the scuba industry) will hurt people. It talks about a "good chance" of injury. If I say that there is a "good chance of being injured in an automobile accident" during your lifetime, I would in no way be saying that the manufacturers know that "they will hurt people."

If you read the instruction manuals for most scuba gear, you will often see dire warnings of RISK OF INJURY OR DEATH (in bold face and all caps). They must agree with their lawyers that there is a good chance of injury.

Even on ScubaBoard, it's common to see a response to a diving question that says "You're gonna die!" Nobody ever says that about stamp collecting.

 

[Darnold9999]

A bit of a side note. Have a look at the ski industry and waivers. Similar industries, similar level of risk, similar participants. Lots more people doing it so there are more cases. Did some public policy work in the area 30 odd years ago, and it was in Canada, so nothing specifically relevant but thought I would point you in that direction as a source of more case law and discussions re the public policy around enforceability of waivers.

 

[nimoh]

I don't think there is any LDS, operator or instructor out there asking a person to sign a release thinking that there is a "good chance" they are going to be hurt. On the contrary, I think they ALL believe that there is a very good chance that nobody will be injured. However, since there is a remote chance that it could happen, they have the release and prepare for the worst case scenario.

In other words, I don't think that having a liability release means that there is a "good chance" of injury as suggested in the article, only there there is at least a little bit of a chance.

 

[tech_diver]

Maybe I am a little sensitive in my reading of the lawyers comments (years of working in the scuba biz listening to all the industry bashing) but I think Nimoh nailed it.

Had the quote read, ""If the business really did not think there was some remote chance that an injury would occur, they would not need a release for it." then it wouldn't mess with my emotions so much.

Yes, scuba can be dangerous but it can also safe enough for a teenager.

If I thought there was a 'good' chance my customers would be hurt, I would have found a different line of work two decades ago.

 

[Darnold9999]

I think the issue is more that if you do something stupid there is an excellent chance that you will get hurt, and then try and blame the operator for your stupidity. A waiver just makes that harder. If the operator is truly to blame courts have found any number of ways around waivers.

 

[markmud]

Maybe I am a little sensitive in my reading of the lawyers comments (years of working in the scuba biz listening to all the industry bashing) but I think Nimoh nailed it.

Had the quote read, ""If the business really did not think there was some remote chance that an injury would occur, they would not need a release for it." then it wouldn't mess with my emotions so much.

Hey Tech Diver,

I don't think you are being sensitive regarding the lawyer's statements. He bashes "for-profit" organizations and claims that they are responsible for mishaps.

Mrs. Deodoto was a trained diver. She was trained regarding the need for Deep Certifications. If she has a cert card, she should have had at least a rudimentary understanding of the risks. I view the release as a reminder not to F-Up (or I could die).

The lawyer claims that he is not popular at PTA or family outings. I think I know why. He wants a risk free life guaranteed by a "for-profit" organization.

Disclaimer: I don't know the lawyer, and my opinions are based solely on my gut feeling after reading his blog.

I did not read the Deodoto case, but was depth a contributory factor? Or was the waiver held invalid for technical reasons?

It has been my experience that releases that allow gross negligence from the operator are not worth much.

markm, IANAL

 

[Ricky B]

I think the issue is more that if you do something stupid there is an excellent chance that you will get hurt, and then try and blame the operator for your stupidity. A waiver just makes that harder. If the operator is truly to blame courts have found any number of ways around waivers.

+1

I agree that "good chance" is not the best choice of words.

 

[scagrotto]

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

That the waiver is unenforceable doesn't mean it has no probative value. The primary purpose of the waiver is obviously to eliminate liability at the outset, but there's a secondary purpose of establishing that the plaintiff knew there was risk and was willing to accept (at least some of) the risk. The waiver should still be admissible to establish those facts, and may be important in terms of plaintiff's contributory negligence. Of course defense counsel can simply ask a plaintiff that's not dead. Plaintiff can either admit their awareness of the risk and perhaps their acceptance, or they can perjure themselves. In the latter case I'd expect the inadmissible waiver becomes admissible to rebut the plaintiff's denial.

I don't see why the waiver would be prejudicial.

It's the ability of the lawyer to match the facts to the controlling law.

I disagree. The line between simple and gross negligence may be a subjective matter rather than some easily determined fact like the solution to a math equation. Take the racing case cited in the link from my first post as an example. Having no course spotters is surely gross negligence, and a spotter every 5 yards is almost certainly not negligent even if that doesn't offer a 100% chance to warn other riders of a problem. The point in between at which we cross from gross to simple negligence is a subjective opinion unless there's a clear and well defined industry standard that can be easily applied to every course.

Expert witnesses are all well and good, but in some cases it's just a matter of convincing the jury that your opinion of sufficiency was almost adequate when opposing counsel says it was recklessly inadequate.