Wrongful Death Suit re: Diver Death

[rawls]

This is a confusing post and after reading the article in the link that Ron posted, it looks to me like a Catch-22 related to any pertinent discussion on SCUBA Board. You have a diving "incident" but the civil suit is about a wrongful death which wouldn't be appropriate to discuss secondary to the fact that the suit has not been settled. As far as the legal aspect is concerned, anyone can bring civil charges against another, but does this relate to SCUBA diving accidents and incidents?

 

[The Kraken]

James,
Very informative post. Thanx . . . !!

the K

 

[gratefuljames]

Just taking my legal chops out for a spin...lol...

 

[dbg40]

None of this is our business. We have no facts, or intrest in this matter, this is not an injury or incident that can be used as a learning tool for divers. News media is, at best, a good place to be mislead, and given unfair, partial, and unsubstantiated information. No good can come from discussion of such a dramatic, and obviously painful matter to many. When a diver is injured, or killed. There is a tremendous outpouring of sympathy for all invollved. Lets show the same consideration for the parties involved in this matter, and save the conversation for after the courts, and or a jury have done their duty. And even then, I would hope to see little of it discussed here.

 

[H2Andy]

Not necessarily - it could be a jurisdiction question - or a Judge and the other Attorney not being understanding and courteous.

huh?

could you explain, please?

Almost - but it seems that it is a state court and the state court would have questionable jurisdiction at best in this case.

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.

 

[H2Andy]

Here in the U.S. that wouldn't fly because one person "A" has no legal right to waive the legal rights of another party "B", unless party "B" is a dependent child or a person of whom party "A" has legal custody.

yes, at least one US jurisdiction (New Jersey) has ruled that a waiver can only waive the rights of the individual who signed it, not other people's rights (such as his dependents).

http://www.insurancejournal.com/news/east/2004/04/14/41223.htm


as far as i know, this is the only jurisdiction that has made that ruling.

you'll still find quite a few waivers waiving the rights of
a diver's heirs, representatives, or assigns. see for example the
Ginnie Waiver (look at paragraphs 3 and 4):

http://www.ginniespringsoutdoors.com/div_wavr.pdf

it will be interesting to see what happens if a spouse or children tries to bring
suit and Ginnie argues they can't because of the waiver, and they respond that the diver could not waive away their rights so the waiver is null and void.

 

[The Kraken]

Good point, Andy.
Given that the participant signs this waiver at the site, how can s/he reasonbly and prudently discuss the implications with his/her heirs or assigns?

I dare say Ginnie would have a mess on its hands.

the Kraken

 

[gratefuljames]

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

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.

In the end, there's differences to be discussed with waiving a cause of action because (a) the diver died of a heart attack while diving; (b) the diver died and was 3/4s (or 50% or even 25%) at fault and the remainder was due to the simple negligence of the dive operation; (c) death due to 100% simple negligence of dive op; (d) death due to recklessness of dive op; (e) death due to affirmative misconduct of the dive op (ie, DM turns off someones air at depth as a joke and they are scared to death)...there are also other levels of "conduct," and the determination of which level you are on will determine how far and wide the waiver previously executed by the decedent will go...this is, of course, a simple analysis, as there is not enough room here to fully and completely discuss the issue which could take up 1000s of pages...

You'll also find that there certainly is rarely an instance where you can make a sweeping or broad-stroke statement about applicable legal rules, which are heavily fact-dependent in their application...

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...

 

[The Kraken]

And now the rebuttal from our learned colleague and prosecutor, m'Lord H2Andy . . .

Good post, James.

the K

 

[gratefuljames]

I think Andy and I are in agreement, actually...we're just discussing different potential outcomes with respect to the same fact pattern applied to certain legal principles, kind of like an IRAC without the "A," actually (since we are not citing precedent, nor applying facts to the precedents cited and are doing so in a conclusory fashion; a C+ on a law school exam at best...ha)...