Liability Release Forms - Completely Legal ??

[Peter Guy]

In the US, a waiver of liability for "negligence" for foreseeable actions regarding Scuba will typically be upheld. OTOH, a waiver for "gross negligence" may well NOT be upheld (that is definitely going to be jurisdiction specific). Were I the attorney writing the release, unless I was sure that my jurisdiction permitted waivers for "gross negligence" I would delete the reference for fear a Court might strike the whole thing down for being overly broad.

BTW, I once was a practicing attorney -- and I do get a chuckle out of people who give their opinions after writing they didn't "study the law."

 

[LakeCountyDiver]

There is no way to really answer this question. It is a case by case basis. It really depends on the situation and what really happened (plus how much money you got). More importantly what info would be brought to the court and what one could prove.

Anyone that gives a Yes or No answer is just plainly giving there opinion.

 

[String]

Liability releases in most parts of the world are legally worthless (in some places its actually an offence to get someone to sign one).

In lots of legal systems you can't release from acts of negligence. In the UK (and as far as im aware Europe) whatever they've signed, if its negligence the disclaimer is void.

 

[BoltSnap]

String,

Are you a lawyer that studied the law in all European countries?

 

[JMcD]

Not a lawyer, but familiar with some of the Canadian information on this subject. Depending on the circumstances, indeed an action can be barred by a liability release - they are not always worthless:

Isildar v. Rideau Diving Supply is a publically available case that can be found on a website called canlii - it references statutes, regs, and published decisions...

I am not interested in a discussion of the circumstances of the tragedy - I haven't looked, but I suspect it may be discussed here elswhere (and digging up old tragedy'sisn't always helpful) Of interest to this discussion/thread, is the impact of the liability release... lots of discussion in this case, but the conclusion found in Paragraph 725:

[725] I have concluded that the claims of XXXXXXreadcasefornamesXXX are barred by reason of the Liability Release and Assumption of Risk Agreement signed by Mr. Isildar.

Now don't get me wrong, I'm not saying they are ironclad! But that they may serve the purpose they are designed for in some circumstances. I cannot comment on the appropriateness of any wording, drafting etc...

 

[String]

String,

Are you a lawyer that studied the law in all European countries?

European countries share common laws. EU area at least. I know for a fact that the releases aren't legal in greece, spain, france, UK, Ireland, Italy.

Its even taught in IDCs to instructor candidates that they have to get students to sign the forms as its a standard but its worthless in real life.

 

[DevonDiver]

Were I the attorney writing the release, unless I was sure that my jurisdiction permitted waivers for "gross negligence" I would delete the reference for fear a Court might strike the whole thing down for being overly broad.

Hi Peter,

Would that by why PADI include the following paragraph in their waiver?

I understand the terms herein are contractual and not a mere recital, and that I have signed this document of my own free act and with the knowledge that I hereby agree to waive my legal rights. I further agree if any provision of this Agreement is found to be unenforceable or invalid, that provision shall be severed from this Agreement. The remainder of this Agreement will then be construed as though the unenforceable provision had never been contained herein.

 

[Scubagolf]

Hi Peter,

Would that by why PADI include the following paragraph in their waiver?

This is standard "boilerplate" language found in most contracts.

 

[k ellis]

You can not sign away gross negligence. In america even with a waiver you can be sued though the waiver is designed to show the court you were forewarned about certain risk associated with scuba diving. All it really does is say that if you are injured as a result of your own negligence then you hold the operator harmless.

Now on other instances such as they rent you gear and say they KNOW a regulator is defective and rent it out anyway then there waiver would be worthless. Another example would be they take you out, let you dive and then before the leave, they do a head count and miscount then leave the area with out you and strand you and your buddy then they would be liable for all damages in that instance.

One thing about america you have to remember though is what the law says is only a part of the law suit. You have to convince in many cases 12 people of normal every day society that you either are not liable or that the other guys is liable depending on which seat you sit in.

Remember as an example the lady who bought coffee at mcdonalds and then spilled it on her self. Not a single person in america orders coffee and expects it to be cold (Unless for some reason they request it that way) and diving is no diffrent in that a person can know better yet still be injured and sue and win. I think that there is a court case I read about on here not long ago concerning a dive op in California being sued and saying his waiver was inadequately worded. Correct me if I am wrong.....

 

[soltari675]

I asked my soon to be husband who is a practicing lawyer in NY, about this issue. He agrees with k ellis. No matter what that waiver says, if the business or boat owner is PROVEN to be at fault of gross negligence, then likely the court would rule in the victim's favor. The key word however is proven. You'd have to prove the operator or owner knowingly did something that would harm you and you had no way of knowing it would happen. The examples from k ellis are good. If it can't be proven or there is any chance you could have prevented it, it's your fault. Like say.... You slip and fall and hurt yourself walking to the edge to jump in. Sure the boat operator could have tried to get some water off, or had treads to stop you. But it was obvious and you took the risk. The waiver only stops common sense stuff, like the McDonald's coffee incident. Because of the disclaimer on the cups, McDonald's can't be sued for negligence in not telling their customers the coffee is hot.