Liability Release Forms - Completely Legal ??

[DiveBen]

I have seen liability release forms which contain the typical releases from liability for dive operators, for inherent risks associated with diving. However, I also notice comments such as "FROM ANY AND ALL LIABILITIES ARISING AS A CONSEQUENCE OF
ANY ACTS OR OMISSIONS ON THEIR PART, INCLUDING, BUT NOT LIMITED TO:
NEGLIGENCE AND GROSS NEGLIGENCE[/B.....
I understand providing liability release to operators for the inherent risks we are aware of, as divers. But for negligence and gross negligence? Protection from gross negligence just kind of feels like one of those basic american rights which cannot be signed away.
My son and I were in a casual discussion about these liability waivers the other day. He asked me if I thought the waivers would hold up in court (in the case of gross negligence on the part of an operator). At first, I told him it would, if the waiver was signed. But after I thought about it for a while, I wondered about it. I'm not a lawyer, but it just feels like a baisc right such as protection from someone exercising gross negligence, cannot just be signed away legally.

Just curious about what others think .

Ben

 

[tfsails]

Does the signing of a liability release anywhere in the U.S. actually absolve the operator from getting sued under any circumstances?

I'm not a lawyer either, but I've been told that the liability release isn't really worth the paper it's written on.

 

[Lee Taylor]

Not a lawyer here either but I think if the document is signed and dated by both parties, it is perfectly legal. It does not mean that a company or person will not get a claim filed against them for damages.

It does document that the diver agreed to what is on the document.

 

[Chill Diver]

I can't specifically speak to what the law is in Florida, but in Canada, you can't contract out of negligence or gross negligence. To that extent, the release is not worth what it is written on.

BTW, I am a lawyer.

 

[CaptRam]

its legal and binding even in Canada under international maritime law-

 

[Scubagolf]

The typical dive release is generally enforceable. It depends on the jurisdiction. For a good discussion you can read the Murley opinion arising out of the death of Chris Murley on his third attempt to dive to the wreck of the Andrea Doria. Several books have chronicled this fatality. The lawsuit was dismissed in 2003 after the defendants filed a motion for summary judgment, the federal court having found the release to be enforceable.

 

[Jim Lapenta]

That was a bad scene all the way around. I read the accounts in several places and based on the circumstances it was inevitable that something was going to happen to that guy. Too far, too fast.

 

[WetLens]

Scubagolf - great read, thanks. I read each release form thoroughly and always circle and put a question mark next to "negligence" and "gross negligence." Not that it means anything, but I don't believe a release form should contain these terms - one should not be able to release negligence. That said, proving negligence is another matter. I do assume the risks of diving, of being on a boat, and all the other paragraphs they put in front of us. I understand and am very willing to sign a document saying that I understand and assume these risks - even the risks associated with diving with sharks. What I don't want to assume the risk for is a boat captain or crew that is asleep at the wheel. I was on Little Cayman Diver when it hit the reef due to the captain's negligence. Not that this went anywhere, but he put the passengers in danger by trying to make it through a narrow channel at night with navigational aids inoperative. That differs greatly from me diving outside my understood limitations.

I always end up signing the release forms because I want to dive. It just pisses me off that I am cajoled into signing away negiligence along the way.

 

[theduckguru]

I understand why scuba charters/trainers need waivers. Unfortunately, the scuba community has allowed these waivers to become unreasonable in scope.

Scubagolf - great read, thanks. I read each release form thoroughly and always circle and put a question mark next to "negligence" and "gross negligence." Not that it means anything, but I don't believe a release form should contain these terms - one should not be able to release negligence. That said, proving negligence is another matter. I do assume the risks of diving, of being on a boat, and all the other paragraphs they put in front of us. I understand and am very willing to sign a document saying that I understand and assume these risks - even the risks associated with diving with sharks. What I don't want to assume the risk for is a boat captain or crew that is asleep at the wheel. I was on Little Cayman Diver when it hit the reef due to the captain's negligence. Not that this went anywhere, but he put the passengers in danger by trying to make it through a narrow channel at night with navigational aids inoperative. That differs greatly from me diving outside my understood limitations.

I always end up signing the release forms because I want to dive. It just pisses me off that I am cajoled into signing away negiligence along the way.

 

[Bob DBF]

Reading that opinion can give anyone a headache.

What I got from the read was (1) the diver knew and understood the waivers; (2) The waiver was valid; (3) The parties bringing the suit could show no gross negliance.

It reads to me that if their was gross negliance or the facts of the accident were in dispute the case would have proceded.


Bob