Liability Waivers and the Dive Professional

Many divers believe that signing a liability waiver is giving the dive operator carte-blanche to escape punishment if they are stupid or negligent in a way that leads to an injury or worse. I don't like to sign a waiver and give away my rights, so I attended a seminar at the Dive Equipment and Marketing Show last November, in which Rick Lesser and Jorge Lopez, eminent diving lawyers, spoke to diving professionals about the effectiveness of liability waivers. They provided interesting insights into the efficacy of such waivers from a business point of view.

Lesser said it was important that waivers did not violate public policy (the law), and that they were not "adhesive," i.e., diving is not an essential activity, and participation is not a legally binding contract between the two parties. Each waiver should be a separate document for each diver, and they should get time to review it before signing.

They told how one might think these diving waivers are more likely to be a useful tool in litigation in a court in Florida than, for example, in Colorado, thanks to Florida courts hearing more cases involving diving injuries. "Colorado waivers are as strong as Florida's since that state dances to the ski industry, which is probably stronger than the dive industry."

Although the effectiveness of liability waivers might vary from state to state, there were exceptions, and dive professionals could be found liable through their negligence, gross negligence, reckless disregard and wilful intent, depending upon the jurisdiction.

Liability waivers are not enforceable in maritime cases (those occurring outside coastal waters) or if the operator violated public safety statutes. They cannot be applied to an employer and employees (though most business insurance policies require a liability release).

The assumption of risk, for example, that "everyone knew that scuba diving was a dangerous activity," is not a defense under Maritime Law.

The failure to fly an 'A' flag, the duty to keep first aid supplies and equipment on board a dive vessel and the duty of care in keeping a passenger count are requirements, which means that the burden of proof falls upon the vessel operator. (The international 'A' flag is a blue and white pennant rather than the red flag with the diagonal white stripe often used.)

How many dive boats have you been on that did not fly the blue and white pennant? Do you check that there are first aid supplies such as a full tank of O2, with the means to deliver it, available every time you board a vessel?

Lesser said that the recurrent themes of litigation include equipment failures (often through neglect or poor servicing), serious technical diving beyond recreational limits, the failure to confirm knowledge transfer between trainer and student, and casualties who had been unfit for the activity. However, doctors are rarely held liable for approving divers who later prove to be unfit. Are you hiding a health reason that might disbar you from diving?

When the trial starts, be aware that juries rarely include knowledgeable divers -- and, in fact, most ordinary members of the public see diving as a potentially dangerous activity. Nonetheless, says Lesser, uniform dive training standards are usually defensible. However, he describes the "Sacramento syndrome," so-called, from when divers had traveled a long way from Sacramento to California's Pacific coast and insisted on diving, although sea conditions were totally unsuitable and life was lost. It is the duty of the diving professional to discourage diving if conditions are not right.

Lesser advises diving professionals never to discuss what happened after an event and before seeking legal advice. Moreover, never put such information on social media before a case is completed. That explains the often-encountered refusal-to-comment by those who might have been involved.

He advises dive professionals to have adequate insurance coverage, and reminds them that the amount in group coverage may not be enough once divided among all those who might be implicated in the case. He suggests a minimum coverage for an individual diving professional of $2 million.

So, what does this mean for us sport divers? Mainly, that if you have signed a release, have a problem, and a lawsuit follows, it will be a tough fight for you or your heirs.

-- John Bantin

The 2018 selection of "Super Lawyers," representing less than five per cent of the practicing attorneys in California, was announced in January, with attorney Rick Lesser receiving his twelfth annual selection.