Validity of bodily injury liability waivers

[B Lo]

I've seen quite a few bodily injury liability waivers purporting to indemnify dive operators, instructors, charters, agencies, etc from liability resulting from their own negligence, whether active or passive. I've also seen lawsuits where these liability waivers are apparently unenforceable, as the lawsuits proceed notwithstanding the all inclusive, potentially overbroad, language contained in the waivers. Look at the Scuba Related Court Cases sub-forum and see what's been allowed to go forward. These aren't the exception; they appear to be the norm.

Are these waivers simply scare tactics used by the dive industry to discourage suits or are there actual, demonstrable, instances in which state or federal courts, in the United States, have held that these waivers are enforceable? There are, without question, issues of public policy both in favor and against enforcing such waivers. I'm really hoping that someone here can pinpoint cite one or more particular cases that have had the issue of the validity and/or enforceability of such waivers argued somewhere in the record. Conjecture and hearsay doesn't do anything other than serve as a scare tactic either for or against a given side.

I'm just waiting for someone, who can't cite a thing, to post that the crew can "clean" the deck with butter and escape liability based upon a waiver. It may be hard to discern the trolls from the ignorant folks who watch a little too much Law & Order and feel that they are armchair attorneys and judges.

Anyone have a case on point they can cite?

 

[Redshift]

I have signed a few, but never really read the text. In Europe they have no validity and we only sign them because the agencies need all the paperwork done.
Are they phrased in a "diving is dangerous and if something happens to you, it's not our fault" way or in a "diving is dangerous and if something happens to you, it's not our fault even if we screwed badly" way?

 

[Wookie]

The crew cleaning the deck with butter is gross negligence, and therefore cannot be waived. You fall down on the deck because you're a clumsy oaf (and the boat was rocking, and you were wearing 60 lbs of gear on your back, etc) is negligence and can be waived. It all comes down to is this a normal part of the trip, and would you expect the boat to rock? Then, are your lawyers better than the operators lawyers?

That's how it works in Florida.

The test for the jury is most often "Would a reasonable diver expect this to be a hazard?" A reasonable diver would expect drowning, slips trips and falls, and a heart attack to be a hazard of diving. The captain running over you with the boat and splitting your pumpkin with the prop would not be considered a reasonable hazard.

 

[nimoh]

doesn't really apply directly to your question, but related in that it involves a SCUBA related court case based on a liability waiver.

http://www.scubaboard.com/forums/florida-diving/483304-florida-keys-diver-lawsuit.html

 

[Wookie]

The crew cleaning the deck with butter is gross negligence, and therefore cannot be waived. You fall down on the deck because you're a clumsy oaf (and the boat was rocking, and you were wearing 60 lbs of gear on your back, etc) is negligence and can be waived. It all comes down to is this a normal part of the trip, and would you expect the boat to rock? Then, are your lawyers better than the operators lawyers?

That's how it works in Florida.

The test for the jury is most often "Would a reasonable diver expect this to be a hazard?" A reasonable diver would expect drowning, slips trips and falls, and a heart attack to be a hazard of diving. The captain running over you with the boat and splitting your pumpkin with the prop would not be considered a reasonable hazard.

Your case would be most recently DeWolf vs Kohler et al in Federal Court in Houston. Dewolf v. Kohler et al :: Justia Dockets & Filings

It went beyond the waiver, but the waiver was upheld. DeWolf lost badly.

 

[B Lo]

While you are indeed correct with gross negligence not being able to be waived, the question I wonder if whether the negligence of the operators, instructors, charters, agencies may be waived by the diver. I have no doubt that the diver may well be liable for injuries sustained by his or her own negligence but what about the negligence of the other parties? While I am not saying that you are either correct or incorrect regarding the jury test, do you have any case law citation? Everyone is an "expert" in what they post online and right or wrong, it is generally foolish to rely upon advice that can't be cited to a reliable source (e.g., case law, statute, admin regulations, etc.).

The crew cleaning the deck with butter is gross negligence, and therefore cannot be waived. You fall down on the deck because you're a clumsy oaf (and the boat was rocking, and you were wearing 60 lbs of gear on your back, etc) is negligence and can be waived. It all comes down to is this a normal part of the trip, and would you expect the boat to rock? Then, are your lawyers better than the operators lawyers?

That's how it works in Florida.

The test for the jury is most often "Would a reasonable diver expect this to be a hazard?" A reasonable diver would expect drowning, slips trips and falls, and a heart attack to be a hazard of diving. The captain running over you with the boat and splitting your pumpkin with the prop would not be considered a reasonable hazard.

I just noticed this citation along with your second post. My prior reply may be moot depending upon what is contained in the opinion. Thank you for the cite. I will review and post shortly afterwards. Thanks!

Your case would be most recently DeWolf vs Kohler et al in Federal Court in Houston. Dewolf v. Kohler et al :: Justia Dockets & Filings

It went beyond the waiver, but the waiver was upheld. DeWolf lost badly.

 

[Wookie]

Again, the negligence is your lawyer vs the operator's lawyer, and who has the better (or more convincing) one, and in reality, that's why operators buy insurance, to protect their asset from their negligence, should they prove to have the less skilled lawyer.

Here's how my insurance company explained it to me. The waiver is a tool which speaks to the mindset of the diver prior to the mishap. The waiver tells the jury that the diver meant to be responsible for their own actions, understood the risks of their particular activity, and accepted those risks. That's why waivers tend to say that diving is a dangeruous sport, and that you may die. It's spelled out for the diver, so if they choose not to read it, like Finnmom, and they do sign it, it's on them. That's why every paragraph must be initialed. We additionally require a witness to the signature. Anyway, there are some rules about waivers, especially in Florida. First, to be valid, the person to sign it must see it before they pay for the event. If you make them pay, then show them a waiver, they are "coerced" into signing it. Next, they must not change the wording. My lawyers advice is that if they try to change the wording, refund them and send them on their way. We've done that twice this year so far. Last, every box must be filled with something. Even if it's N/A.

My insurance does not cover me if the waiver is not properly filled out. It's in the terms and conditions on the front of the policy. It also doesn't cover me if I do something illegal. That includes violation of my USCG COI.

 

[B Lo]

That makes sense except for the fact that the waiver may not always make it to a jury. If a judge, as a matter of law, rules on a motion in limine to exclude it, it doesn't matter what the jury would think, as the jury will never be aware that it exists. Put simply, questions of law go to the judge. Questions of fact go to the jury. If there is a sufficiently valid legal basis to suppress the waiver, it will go *poof* before making any impact on a juror.

As for the case you cited, I looked at it briefly. The matter was remanded from federal court down to the 165th District Court of Harris County, Texas. I don't see the issue of the waiver but, then again, I didn't have login credentials to the District Court of Harris County, Texas Clerk's site. I may sign up and see what I can dig up but win, lose, or draw, the waiver may not have been at issue. I'm not saying it wasn't; I just don't know.

Again, the negligence is your lawyer vs the operator's lawyer, and who has the better (or more convincing) one, and in reality, that's why operators buy insurance, to protect their asset from their negligence, should they prove to have the less skilled lawyer.

Here's how my insurance company explained it to me. The waiver is a tool which speaks to the mindset of the diver prior to the mishap. The waiver tells the jury that the diver meant to be responsible for their own actions, understood the risks of their particular activity, and accepted those risks. That's why waivers tend to say that diving is a dangeruous sport, and that you may die. It's spelled out for the diver, so if they choose not to read it, like Finnmom, and they do sign it, it's on them. That's why every paragraph must be initialed. We additionally require a witness to the signature. Anyway, there are some rules about waivers, especially in Florida. First, to be valid, the person to sign it must see it before they pay for the event. If you make them pay, then show them a waiver, they are "coerced" into signing it. Next, they must not change the wording. My lawyers advice is that if they try to change the wording, refund them and send them on their way. We've done that twice this year so far. Last, every box must be filled with something. Even if it's N/A.

My insurance does not cover me if the waiver is not properly filled out. It's in the terms and conditions on the front of the policy. It also doesn't cover me if I do something illegal. That includes violation of my USCG COI.

 

[Tony387]

What jurisdiction are you concerned with? FL or TX....apples and bowling balls.

---------- Post added May 19th, 2014 at 03:28 PM ----------

Take a look at this.

http://www.prindlelaw.com/A&P/WAIVERS - STATE BY STATE.PDF

 

[B Lo]

There are *relatively* few cases involving SCUBA waivers so I would be happy with any U.S. jurisdiction. That said, FL is my primary interest. The link you provided has some excellent citations. I will pull some of them to see if I can dig up some more recent citing cases. Thanks!

What jurisdiction are you concerned with? FL or TX....apples and bowling balls.

---------- Post added May 19th, 2014 at 03:28 PM ----------

Take a look at this.

http://www.prindlelaw.com/A&P/WAIVERS - STATE BY STATE.PDF