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March 2001 Vol. 27, No. 3   RSS Feed for Undercurrent Issues
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The Truth About Dive Releases: Part I

He who is negligent is not accountable

from the March, 2001 issue of Undercurrent   Subscribe Now

No matter who the operator, or what part of the world you’re diving in, you will probably be required to sign a form releasing the provider of all liability should you have an accident. No matter what you may hear, if you sign a release before going scuba diving, it is most likely valid and a court will uphold it. This means if you consent to relieve someone of liability for his negligence, you probably won’t recover damages for your injuries even if you sue.

Liability laws vary from country to country, and from state to state, but for American divers plenty of general principles exist. We asked Phyllis Coleman, Professor of Law, Shepard Broad Law Center, Nova Southeastern University, Ft. Lauderdale, Fla. if she would explain the laws and their applications for our readers. Herself an active diver, she has written in legal journals about cases and statutes affecting divers. Here is her report.

* * * * * * *

Standards absolving diving businesses and their operators of liability vary,but releases are typically effective if:

* You are a competent diver and voluntarily sign an unambiguous waiver;

* The waiver does not violate public policy; and

* It is not an invalid “take-it-or-leave-it” contract.

Informed consent

Competent divers may explicitly, in writing, surrender rights to sue for injuries caused by negligence. (“Negligence” means breaching a legal duty by not acting as a reasonably prudent person would under similar circumstances.) Because minors lack legal capacity to sign sports-related waivers, dive operators routinely compel parents or guardians to sign for them. While some courts enforce such parental releases, others conclude the right belongs to the child and cannot be waived.

In fact, if a hazard is inherent to an activity, one may not even need to sign a waiver to release the operator from liability — divers who know the risks presumably accept them. Nevertheless, exculpatory clauses must clearly spell out other dangers in terms lay people can understand.

As far back as 1974, a Washington state court ruled in Hewitt v. Miller, that the waiver’s unambiguous, conspicuous language “clearly” covered the victim’s disappearance during a training dive. The release he signed conspicuously acknowledged the possibility of his death from “inherent dangers” and the instructors were not to be deemed guardians of his safety.

Likewise, in Estate of Mitchell v. Lang Sales, Inc. (dba West Bend Aqua Shop), Susan Mitchell signed a PADI waiver before undergoing training in 1985. During a dive, her tank valve became entangled in guide lines set up by her instructor and she drowned. The Wisconsin court said “We note the voluntary nature of scuba diving and its inherent risks — risks which the Mitchells certified they were cognizant of by signing the release . . . We also note the voluminous instructional materials in the record regarding the dangers and problems associated with diving. Both Mitchells had completed the basic course and were in the advanced course at the time of the accident. All of these circumstances point towards an intelligent and informed consent to the release.”

Similarly, in Baschuk v. Diver’s Way Scuba, Inc., Julia Baschuk, who had a history of ear problems, punctured an eardrum during training. The New York court said in 1994 that given the clause’s “clarit y, precision, and specificity in absolving the defendant from . . . all negligence,” the release applied to prescreening conduct, though Diver’s Way failed “to investigate student’s medical statement before allowing her to enroll in the course.”

In preparing a release, every possible peril doesn’t have to be listed, according to Whitlock v. Duke University, a 1987 case. Researchers conducting a simulated dive to 1500 feet failed to warn of possible brain damage, but were not liable where the risk was neither “unique to experimental deep diving” nor different from that associated with decompression. Whitlock claimed fraud, but the district court was convinced that Whitlock, who had participated in previous deep experimental diving, was a highly educated and quite sophisticated diver and admittedly knew that some form of permanent brain damage could result from this type of dive.

Not limited to personal
injury, releases can even
preclude reimbursement
for lost gear.

The court found that Dr. Peter Bennett, the head of the laboratory, “had no knowledge of a reasonably foreseeable risk of permanent organic brain damage in the experimental dives and therefore could not have concealed such a fact from Whitlock, either fraudulently or negligently.” Bennett said the informed consent form listed all risks which had ever occurred. The possibility of organic brain damage was not included because it was not a normal risk for experimental deep diving and Whitlock failed to show otherwise.

On the other hand, there is some hope for inexperienced divers. For example, Alvin Scott signed a release before his death in a training class in New York. In 1989, in Scott v. Niagara Scuba Sports, Inc., the court said that the “release was ambiguous and there was question as to whether enrollee was fully advised of potential dangers of engaging in activity.”

Ito v. Macro Energy, Inc. involved a plaintiff who drowned while diving in Saipan. The court invalidated a waiver because the chance of drowning is not “so inherent in the sport.” Due to improper training, he did not “ fully’ understand” the risk. And good news for divers outside the United States. The court used the internationally recognized CMAS standard rather than local “‘variations’ in the requisite skills” to evaluate defendants’ conduct.

Scuba divers injured in another country often try to sue on their own turf in a court where they enjoy “home field” advantage. But in deciding the appropriate jurisdiction for a lawsuit, judges traditionally look to where the accident occurred and the place with the most contacts with the parties and the incident. Unfortunately, despite imaginative lawyering, a foreign defendant’s contacts are generally not sufficient to obtain personal jurisdiction in a United States court. And, even where an American judge has the power to resolve the issue, the diver may have won only half the battle. At that point, the court must decide which law to apply: its own law or that of the other jurisdiction.

Clauses in a release providing which law will govern in a dispute are generally enforced unless there is no connection to the location chosen. Problems occur when the waiver is silent on this issue. Courts then look to conflict of law statutes, as they did in Reuther v. Southern Cross Club, Inc. in 1992. New Yorker David Reuther was staying at Pirates Point on Little Cayman. When Pirates Point was unable to offer a dive, he went on the Southern Cross boat. On the short trip to the site, the boat entered a channel where a huge wave struck it, seriously injuring Reuther who subsequently sued in an Indiana federal district court.

The court had jurisdiction to resolve the conflict because the corporation which owned the dive boat was registered in Indiana. However, the judge explained the laws of the place of injury, the Cayman Islands (a British Dependent Territory), controlled the validity of the release. There was no Cayman Island statute on that point, so the court turned to English common law and refused to enforce the waiver because it did not expressly include the dangers of the ride. As the waiver referred to “specific dangers or events that may happen in the context of a SCUBA dive,” but did not mention injuries on the boat,they were not covered.

Not limited to personal injury, releases can even preclude reimbursement for lost gear. In 1997, Capt. Dave Mann and Mark York of Suds Charters took Victor Rodriguez, William Hannan, and two others on a dive trip. Before the trip, they executed a release that said, in part, “I hereby voluntarily release, discharge, waive and relinquish any and all actions or causes of action for . . . property damage occurring to me . . .” The 21-foot Stigarcraft set out from Port Jefferson Harbor in two-foot seas for a wreck. At the trial, Hannan noted water began pooling on the deck as they motored toward the site. Upon reaching the location, Mann and his mate anchored the boat. By this time, a significant amount of water had accumulated. When the hatch was opened to start the bilge pump, the boat began to rapidly take on water. Cutting the anchor free from the boat failed to rectify the situation. Mann then started the boat and attempted to move it forward . The bow raised out of the water, the stern went down and the transom dipped below the water line. The boat filled with water and capsized, sending the crew, divers and equipment into Long Island Sound.

No one was seriously injured. Rodriguez sought to recover damages for property that was lost and damaged when the boat capsized. The court concluded that Rodriguez executed a valid waiver of liability for any property damage caused by David Mann’s negligence. “Therefore, even though Mann was negligent in the operation of his vessel at and before the time it capsized, the release precludes any recovery for property damages and the cause of action against the defendants must be dismissed.”

Next Issue: Public Policy and Take-it-or Leave-it Contracts.

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