What's wrong with this Waiver? Any legal eagles out there?

[Wookie]

I have a separate release for those just riding the boat that aren't diving or snorkling. I have a release for divers/snorklers, and I have a tech diver release. I do not try to make it all work on one release, as one asks for a generic OW or nitrox card, and one asks for a specific dive certification card and limits. I understand what you are trying to do, which is limit the number of releases so you don't give someone the wrong release. Didn't someone in Key largo give someone the wrong release and the judge threw the entire release away?

The only way to ensure that you are in compliance with releases is to do it yourself. Yes, I know that you have other things to do, but your entire fortune depends on it. My wife makes sure every release we get is properly filled out and checked/initialed/signed. But then, she was a compliance officer in a brokerage house, trying valiantly to keep up with a bunch of baby brokers, folks who can't get real jobs....

 

[carltona]

Truly the most frustrating thing to me is how important this is and the huge variety of apparently conflicting information on what works best. I know thats the way the law works but having been in business for 30+ years as a business owner I am sickened by how malleable the law is depending on who's got the money. I would love to have a lawyer that says, if our waiver doesn't hold up in court, we will agree to litigate for FREE and or be part of any judgement. Yeah, thats never going to happen.

 

[dano718]

$500/hour I can tell youre in NYC and HONOLULU. I am only paying $375/hour but have used two different firms to review so for $750/hour I'm still in limbo. Again there is not right answer, just less wrong ones.

---------- Post added September 4th, 2014 at 03:37 PM ----------



I agree with that; its just that they want us to have 3 documents that people need to sign that basically say the same as this single document. A lot of paper and filing and record retention. And takes more time for customers to complete.

Maybe I need to ask some more insurance companies rather than lawyers

The real problem is nothing save you from a for see able problem as soon as you say there could be a problem because and do nothing to decrease the because you are in trouble.

 

[Tony387]

Truly the most frustrating thing to me is how important this is and the huge variety of apparently conflicting information on what works best. I know thats the way the law works but having been in business for 30+ years as a business owner I am sickened by how malleable the law is depending on who's got the money. I would love to have a lawyer that says, if our waiver doesn't hold up in court, we will agree to litigate for FREE and or be part of any judgement. Yeah, thats never going to happen.

An infinite number of variables makes the notion of any such guarantee ridiculous. That and a common sense understanding of how the law works...

Sent from my SCH-I545 using Tapatalk

 

[flots am]

There are a huge number of ways around it depending exactly what it says, and what you're trying to protect against/sue for and who did what, who should have done what, where it happened, etc.

Are you planning on using this for something, or did you sign it and are looking for a way out?

If you're using this for your business, send a copy to your insurance company and ask them. They're the people with x million dollars on the line and would be more than happy to tell you if they think it's OK or not.

 

[ItsBruce]

My license does not permit me to practice law in Florida, so I am not giving legal advice. Even if you were in California, I would not give you legal advice unless you were my client pursuant to the terms of a written retainer agreement. In that event, I would require payment for my legal services, partly because I would be giving you my services, much as you would require payment to take me on an excursion. Plus, if I were giving you legal advice, I would be opening myself to potential liability if I gave you bad advice and you were harmed as a result; the net result being that I would require a payment to expose myself to that.

With the foregoing in mind, I can see why your insurance company does not like the document.

Apart from the things mentioned in other posts re venue, etc., I see a lot of disclosures and representations by the customer, but the actual release language is, IMHO, not nearly as strong as I would want if I was the dive operator or its insurer. The acknowledgements and representations might limit claims for fraud or nondisclosure by negating essential elements, but might not work on a simple negligence theory.

I am also concerned about whether the language would actually be effective in a lawsuit by a spouse or other heir. Such a person might have his or her own right to recover for things like loss of care, society, comfort or companionship.

In addition, there are a lot of very long sentences. A long sentence is more likely to be confusing than several shorter ones. (That is just a personal bias.)

While I mostly like the idea of the disclosures and representations, you should have your lawyer look at the Florida cases addressing liability waivers and find language that the courts say is effective and either use it or something similar.

Personally, I do not disapprove of the notion of protecting others in your release. In the event of a lawsuit, they will get sued anyway, and you don't want them looking to you for indemnity. (BTW: you might have issues if you assign a buddy to a diver and the diver is injured because the buddy is negligent. Or worse, you don't want the buddy complaining that you put him or her into a position of being sued by assigning him or her to dive with the person who signed the release.)

See what your lawyer thinks of these thoughts, then do what he or she says, but do not rely on me.