Wrongful Death Suit re: Diver Death

[The Kraken]

I know . . . was just having some fun !!!

the K

 

[H2Andy]

I think the way we were discussing it here, the waiver is not "null and void in its entirety," it's just ineffective as against a third party action for wrongful death in the stated circumstances.

but since the people bringing the suit forth are third parties, the agreement
is null and void. it does the Operator no good at all. it's as if though
it had never been signed.

(well, so far only in New Jersey that i know of)

ince (if I remember correctly) "wrongful death" usually requires some form of actual or implied scienter (recklessness or extreme negligence) it can not be waived..

not in Florida. "wrongful death" just means that someone, through negligent
or reckless conduct, caused the death of a spouse or parent, or the parents
of a minor child.

"wrongful death" is a negligence action bought by the dependents of the victim.

On the "unable to waive rights of third parties," people do that all the time - look at a settlement agreement, or other simple contract. These instruments are effective to waive an action by the party executing and (usually) their heirs, assigns, executors, and etc....wait hold on...ok, I thought I had a clause on my computer here at home, but (thank God) I don't; maybe when I get to the office.

yup... thus far, i only know of New Jersey as an exception

If you look, the Ginnie waiver applies to risks inherent in engaging in the "Activities" (scuba diving); it doesn't say anything about waiving the negligence, or recklessness or intentional conduct, of anyone, which are not included in the definition of "Activities" (nor would you expect that they were "inherent" in the Activities) and therefore, I believe that it would be a pretty strong argument that the waiver was inapplicable thereto...I also believe that you'd at least make it past summary judgment on the question...

look at paragraph 4. the signer agrees (on behalf of dependents) not to
bring ANY suit relating to scuba diving. it has no limits. if diving is involved,
they can't sue.

now, under Florida law, it will be a case of first impression to argue that
the diver couldn't waive away the rights of the dependants. i'd like to
see how that comes out.

now, here's a wrinkle: Florida courts do not allow waiver of gross negligence or recklessness. so.... if the victim dies due to Ginnie's gross negligence or
recklessness, the waiver does not estop anyone from suing.

 

[gratefuljames]

That's what I think I said - can't waive gross negligence or recklessness, and not only in Florida...

 

[PAdiver93]

right i have no idea about this but in europe when some 1 goes diving if they are a qualiyfied diver they sign a waver to any actions taken on the instructor / dm
so they instructor or dm is not responsible for any injury or death caused to a person/s and when signed no third party can sue or anything like that the diver wavers all rights of him and family members to take any action against the death of such person (just out of intrest is it the same in the states)

The waiver has no play in this case -they r not suing the divemaster/shop/boat/resort. Its the relativesof the decedent and her estate suing the husband who they believe is allegedly responsible. (Don't forget this is civil - thus instead of showing that he is guilty beyond the reasonable doubt all they have to do is show by preponderance of evidence ~ more likely than not that he did it)...


PLUS - in somewhat related news - Natalie Halloway's parents are suig the Aruban kid in NY Court (even they r from Alabama - all the legal experts feel that they have an uphill battle to climb in that case in terms of proving jurisdiction of the NY Court...) But again the situation might be different - noone knows but the parties that r involved in the case and their attorneys

 

[PAdiver93]

Jurisdiction is not dependent on where the death occurred, but the husband's domicile.

No it's "where the issue lies"... Even a simple argument that in the interests of justice and expedience... (Say husband can not bring all of his witneses because they r out there(not in the State in question) - Even that argument might fly with a reasonable judge...

 

[PAdiver93]

huh?

could you explain, please?




how on earth do you figure? both the plaintiffs and defendant reside in the
court's jurisdiction.

i don't think you understand the concept of "jurisdiction" as it applies to
a civil suit.

1. Continuance MUST be agreed to by another attorney if there is no prejudice to his case - Model Rules of Civil Procedure
2. See the post above

 

[H2Andy]

1. Continuance MUST be agreed to by another attorney if there is no prejudice to his case - Model Rules of Civil Procedure
2. See the post above

again... huh?

 

[H2Andy]

No it's "where the issue lies"...

no it's not

in this case, the Defendant and the Plaintiff are both residents of the jurisdiction
over which the Court sits

end of story

i'm sorry, but you don't know what you are talking about

 

[ItsBruce]

Here is an interesting aspect of waivers: Dive operators get waivers for liability they or their people may incur. Then, they assign strangers to be each other's buddies. But, they don't have waivers to protect the people they assign to be buddies. Wouldn't it be a good idea to carry a waiver and make an "insta-buddy" sign it before agreeing to buddy with that person? Or, wouldn't it be nice if dive operators changed their waivers to protect everyone on the dive? I'm thinking that if someone gets sued because they were involuntarily buddied with a diver who gets injured, the operator's waiver might not preclude an indemnity claim. Any thoughts?

Somewhere in the near future I'll actually research this.

 

[H2Andy]

yeah, the buddy would be liable if negligent, and the waiver wouldn't cover him/her

the thing is, the buddy probably wouldn't have the deep pockets that would
make a suit worth while to a P.I. attorney

remember, the buddy signed a waiver too, so HIS suit against the dive operator
(either for contributory negligence, indemnity, contribution, etc.) would more
than likely be precluded

also remember, to win, your buddy or his dependents would have to
prove negligence on your part.

would it be a good idea to get any buddy to sign your waiver? probably...
but it's probably overkill...

i don't worry about it. i figure i don't have deep enough pockets for someone
to mess with me, even if i were negligent.