Legal Question - Waivers

We were talking about changing our dive club's waiver system at a meeting last night and I wondered if anyone has any experience with this type of thing and what constitutes a valid waiver, etc. Ideally, of course, we want to protect the club from liability in case someone is injured on a club related excursion. Our waivers in the past have been done annually and we have required them to be notarized. My questions are as follows:

1) Does anyone know how long waivers last? We have had complaints that it is a pain to do them annually so we would like to relax that...is there anything wrong with doing them biannually? What about for the duration of membership (unless we change the waiver)?

2) The notarization issue..anyone see a point here? They started doing it long before I got there as a means to "show" that the person was cognizant since he/she had to take the waiver, fill it out, and then take it to get notarized. Is there a point to this?

3) Do these releases need to be area specific? What I mean is that since we are in DC, we have a broad membership from VA, MD, DC...anyone know if local differences in the law will necessitate different waivers?

4) Do we need a waiver for all members regardless if they plan to go on trips with us or not? If not, would we be liable if they came to a club meeting at a local restaurant and a ladder fell on them?

Thanks in advance for all your help!

1. It's best to do them for every trip in addition to a general release. At least that's what I'd advise. There are reasons, but I'm leaving town in 30 minutes, so I can't go into it. Send me a PM and I'll get back to you with reasons on Monday.

2. Notarization generally means that the document is "self proving," so under the Rules of Evidence you don't need to introduce testimony concerning authenticity. Frankly, the notary probably won't remember the person. If you're concerned about the person's capacity, have a couple witnesses sign it in the presence of the person waiving rights.

3. Absolutely. A California waiver might not meet the tests applied in Florida. There are certain common principles involved, but the safest course is to have location-specific waivers. Furthermore, if your activities take you onto navigable waters, admiralty law is implicated, and a court will probably apply admiralty concepts to test the sufficiency of a waiver. Recently, a case reported out of the Puerto Rico federal district court held that admiralty governed the validity of a waiver when the dive operator transported the divers on a boat dive away from shore.

4. Well, I'd recommend waiver and releases for all club members. However, your hypothetical situation really implicates duties owed by the club to its members under specific circumstances. I'd have to think about that one some more.

As AzAtty has already stated, our dive club was advised to have waivers at any Club sponsored event.

We have liability insurance that covers the Club, individual members, and board members for pretty much anything related to a Club event. We require a waiver, along with proof of certification (if joining as a diver) at time of joining.

If a Club member sponsors a dive event, say boat charter, we require that that persons obtains new waivers from each member who participates in the event. If 2 or 3 members decide to do a dive somewhere, we do not treat that as a "club event".

For major events, e.g. Earthday cleanup, we require waivers from anyone participating, diver or not. We also require shore support to be trained in CPR/FA and DAN O2.

MD

I think you at least need to talk to a lawyer. Does the club have insurance? My insurance as well as the agencies I teach for require a waiver for each class/event. I have about 40 different kinds of waivers and they keep changing them so it's a trick to make sure I have the latest rev.

All classes also require a medical form. How this relates to a club I don't know. I also think you need to be very careful about establishing a duty of care. If you let someone believe you are looking out for them you may be held lable if you don't.

Also if it was my club I would require every diver to have dive insurance. I think that can help limit financial liability because if the insurance pays you won't have to.

What I have said only reflects my no doubt limited understanding of these issues and since I am only a lowly instructor it may be completely wrong.

We do NOT have liability insurance...I was told it was too expensive and that "that's what the waivers are for". Is there any way to word the waivers or somehow make them so rock-solid that they can stand up to challenges in case we encounter a litigious event? Do I need to break it to them that we have to get insurance and should consult an atty that is an expert in these types of matters?

The short response to your questions is that you need to hire a lawyer familiar with your local laws to advise you. Every jurisdiction has different laws, and what might be the correct answer in one place may be incorrect in another.

You can also get help from your insurance agent, assuming you have a general liability policy for your club. Ask the agent what type of release, specific release language, frequency of signing of releases, etc. they want to provide you with comprehensive coverage.

The following comments are made from my perspective as a Michigan lawyer. Your local counsel can better advise you what the law provides in your jurisdiction.

1) The time period of a waiver is defined by the terms of the waiver itself. You can create a waiver that releases all claims for all time and all circumstances. The issue is whether a court will enforce such a waiver. Can you get by with an "infinite" waiver? The answer is an unequivocal "maybe". It depends. Hire a local lawyer who specializes in this area and find out for sure. The more often a member signs a waiver, the stronger your defense will be. The problem with setting a policy requiring separate waivers for each trip, as AzAtty suggests, is that its a PITA to administer. Yes, it's a better policy than a one-time general waiver. But sooner or later somebody forgets to get the waivers for one trip, or doesn't get one from every person, and that's the trip something happens. Then the injured person's lawyer argues that the "general" waiver is not applicable, because the policy required separate waivers for each trip, and there wasn't one. Again, check with local counsel to see if a "one-time" waiver will suit your needs.

2) A notary is basically an official witness to a signature. Notarization is a way to help you prove that the person who signed the waiver really did sign it, and nobody forged the signature. That's about it. You can prove that the waiver is genuine in many other ways. Requiring witnesses to sign it too is fine, it's about the same as having it notarized. My guess is that a waiver is effective in your jurisdiction without being notarized, or even witnessed for that matter. Ask your attorney to be sure.

3) Each jurisdiction's laws may be different on the issue of waivers, although it's likely that a waiver form can be prepared that works in all of them. Ask a lawyer in your area who knows for sure.

4) Demanding waivers from all club members is better for the club than waivers from less than all. Contrary to popular belief, it is unlikely that the club would be held responsible for a restaurant employee dropping a ladder on a member's head. Unlikely but not impossible. That's why you can get cheap insurance to cover that kind of risk - the risk is so low it's cheap to cover.

O-ring once bubbled...
We do NOT have liability insurance...I was told it was too expensive and that "that's what the waivers are for". Is there any way to word the waivers or somehow make them so rock-solid that they can stand up to challenges in case we encounter a litigious event? Do I need to break it to them that we have to get insurance and should consult an atty that is an expert in these types of matters?

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A waiver will not stop a law suit. It may help win but you may still go through a trial. A law suit is expensive to fight even if you win. The insurance company is where you get the money for the lawyer.

I would at least consult an atty. It may also be best to find one with experience in diving related cases. One thing I have noticed lately is that there are lawyers who are specializing in going after instructors, resort, boats ect. Those lousy divers we are turning out are becomming an attractive business for someone.

is here........A Canadian club, so I don't know the potential differences which could apply........http://home.cogeco.ca/~csdivers/

I think the other officers of the club are somewhat resistant to spending funds to talk to a lawyer so I want to spell it out for them and I am not sure I understand how this works. Let me draw a parallel to something I know a little about and you tell me if I am wrong.

Is this situation similar to employment law, in that the officers of the club, as well as the club as an entity, can be held personally liable for an accident on a trip (i.e. someone dies and their family tries to sue)? The waiver will not protect us from potential litigation and we would have to cover court costs out of our pockets if we had no liability insurance.

Does that sum it up pretty well?

A fundamental issue you need to address is why you are worried about liability in the first place.

I am assuming your club is set up as a separate formal legal entity, like a non-profit corporation. If it's not, it should be. The club should be a distinct entity with a legal existence separate from that of its members.

I suspect that your club, however it's set up, has few or no tangible assets, so no one could recover anything much even if they sued your club and won. If the club were to lose a court case, or even just got sued, you could simply dissolve the club or put it in bankruptcy, and start a new club. This is not likely to be a viable option for a business such as a dive shop like Mike's that has plenty of assets.

Even if your club has no assets, waivers and insurance are still necessary to protect the club members and officers from personal liability in their individual capacity. The waivers and insurance have to be set up to provide protection to these individuals, because they have assets to lose in a law suit. That's the real point of having waivers and insurance in the case of a typical dive club.

Waivers and insurance are supremely important if you have not set up the club as a separate entity. Talk to a local lawyer and insurance agent ASAP.