New Jersey Court Deals Blow to Liability Waiver

For years, divers have had to sign waivers designed to absolve dive operations from lawsuits if injury or death results. However, the New Jersey appeals court, in affirming a lower court ruling, has struck a blow against releases by ruling in April that release forms do not bar relatives from filing a wrongful death lawsuit.

Citing New Jersey's Wrongful Death Act, the court said, "Our Legislature declared that a just society has both a moral and economic responsibility to ensure that those who are found civilly liable for the death of a person are required to compensate the heirs of that person."

Forty-four year old attorney Eugene Pietroluongo died on July 17, 2001, while diving at the Dutch Springs Quarry in Bethlehem, PA. Pietroluongo, an active diver, was seeking advanced training. Before the dive, he signed a statement releasing his instructor Costas Prodromou, Regency Diving Center, Inc., International Training, Inc., and Technical Diving International from all liability or responsibility whatsoever for personal injury, property damage, or wrongful death however caused, or arising out of, directly or indirectly, including, but not limited to, the negligence of the released parties, whether passive or active.

Pietroluongo, Prodromou, another instructor John Berghoefer, and student Paul Kulavis met for a preliminary dive to ascertain the students' skills. The group swam to one submerged platform, and then to another, spaced about fifty feet apart. Prodromou waited for Kulavis to catch up with Pietroluongo and Berghoefer as they headed toward the third platform.

As they proceeded, Prodromou noticed that Berghoefer had missed the platform and the other divers had followed him. Berghoefer, realizing his mistake, turned around and headed back toward the platform. However, Prodromou saw a cloud of silt, and he and Berghoefer immediately swam to it. In his panic, Kulavis had embedded himself in the mud at the bottom of the quarry, erroneously pressing the deflate button on his buoyancy compensator instead of the inflate button. He kicked up the cloud of silt as he struggled with a loose fin and control of his buoyancy.

Berghoefer and Prodromou brought Kulavis to the surface and in so doing lost sight of Pietroluongo. According to Kulavis, Pietroluongo had motioned for him to stay in place while he swam from the cloud of silt, presumably to alert the instructors to Kulavis' struggle, so Prodromou descended again and searched the cloud of silt to no avail. When Pietrolongo did not surface, Prodromou swam to shore to summon help. Pietrolongo's body was eventually located the next evening in 66 feet of water with an ample supply of air in his tank and equipment in working order. The medical examiner ruled his death an accidental drowning.

The court said that while Pietroluongo had the power to sign away his right to sue, the law did not allow him to sign away the rights of his survivors to bring a wrongful death lawsuit. It said such an agreement, "like any contract, can only bind the individuals who signed it." The ruling cleared the way for Pietroluongo's 13-year-old daughter, his only survivor, to sue the Regency Diving Center in Millburn, NJ.

While the ruling only applies to the state of New Jersey, it will be used to support similar cases in other states.

From reports in the New Jersey Star Ledger and Gershon v. Regency Diving Center, Inc., 2004 WL 764450 (N.J.Super.A.D.)