Get Your Dive Buddy Waiver Right Here! Red Hots! (ha)

[Lucy's Diver]

Like I said: Litigators: sucking the fun out of life for generations...hahaaa...Law students are funny, too. Check with your Torts professor, and ask him/her if hundreds of years of Anglo-American jurisprudence is now wrong. "All waivers are ineffective" is just a flat out wrong statement. "No waiver can waive the rights of family members, heirs, executors, etc." is just a flat out wrong statement. If you actually know anything about waivers, you would know that they are upheld more often than not, and when they are not upheld it is most often defects as to form that does them in, not "because no heirs exist until your dead." If that reasoning were the least bit sound, how could you make a will? How could you leave property to someone that doesn't yet exist because you're not dead yet (an heir)? If you didn't hear the term "Headnote Scholar" in law school, it could be because you may have been one...lol...Finally, the cite stated that a waiver couldn't bar a WRONGFUL DEATH action, not a NEGLIGENCE action so, again, the specific facts and application are important! Calm down kids, jr. sharks, ambulance chasers...relax! How is Sao Paulo Mike? I used to go to Floripa a bit with my ex-girlfriend from S.P.

CN

First, your argument seems premised, in part, on some distinction between “wrongful death” as a cause of action and “negligence” as a cause of action. Read the statute (N.J. Stat. § 2A:31-1), there’s no real difference. Wrongful death is the cause of action, negligence is the underlying legal theory. You can tell by the way the way the term “wrongful death” is there in the title and the word “neglect” is there in the text. “Specific facts and applications” are indeed important. Reading the case and the statute, rather than writing your wrong opinion in all caps, would be the first place to start gathering that sort of thing.
Second, since everybody wants to talk about their vast knowledge of hundreds of years of Anglo-American jurisprudence without actually reading the case, I figured I’d go do that. The case, Gershon v. Regency Diving Ctr., Inc., 368 N.J. Super. 237 (2004), is good law in New Jersey and stands directly on the notion that you cannot release away your heirs rights to sue a dive operator for your wrongful death in negligence. The waiver was, in this case, no good, and it was not a defect as to form, it was simply over-ridden by statutory and public policy considerations. Thus, the case indeed stands for the very notion for which it was originally quoted.
Third, I rather doubt I could check with my torts professor, I suspect he retired in the twelve years since I graduated.
Fourth, I did well enough in law school and in practice to have fooled an awful lot of people were I a “head note scholar.”

Go read the case before you opine on the law it articulates.

 

[cowboyneal]

That's New Jersey - the armpit of the US. We were talking generally at the beginning, and it wasn't supposed to deteriorate into an argument with a bunch of ambulance chasers. There are 49 other jurisdictions, and Puerto Rico, and the rest of the world as well. I doubt New Jersey is the majority view. I note your 12 years experience, even though it's only a little more than half the time since I graduated from a top 20 law school...I'm not a litigator, but a business executive, so what I know about litigation you could stlick under a matchbook cover (and that's the way I prefer to keep it). In fact though, the case only stands for the proposition that you can't waive the wrongful death cause. However, the court UPHELD the result (no recovery) because there was no causation (if I remember correctly, it's been a couple of weeks since this post was en vogue). So, that's the definition of headnote scholar: citing a case that goes AGAINST the result you want (liability) only because a headnote (non-waiver of wrongful death cause) supports your position (albeit tenuously now, ne'st ce pas?). You on one of those billboards by the highway?

 

[Lucy's Diver]

That's New Jersey - the armpit of the US. We were talking generally at the beginning, and it wasn't supposed to deteriorate into an argument with a bunch of ambulance chasers. There are 49 other jurisdictions, and Puerto Rico, and the rest of the world as well. I doubt New Jersey is the majority view. I note your 12 years experience, even though it's only a little more than half the time since I graduated from a top 20 law school...I'm not a litigator, but a business executive, so what I know about litigation you could stlick under a matchbook cover (and that's the way I prefer to keep it). In fact though, the case only stands for the proposition that you can't waive the wrongful death cause. However, the court UPHELD the result (no recovery) because there was no causation (if I remember correctly, it's been a couple of weeks since this post was en vogue). So, that's the definition of headnote scholar: citing a case that goes AGAINST the result you want (liability) only because a headnote (non-waiver of wrongful death cause) supports your position (albeit tenuously now, ne'st ce pas?). You on one of those billboards by the highway?

The case did not discuss causation. It was focused solely on the holding, quoted below.

"From these legal principles we conclude that decedent did not have the legal authority to bargain away his heirs' statutory rights to institute a wrongful death action in exchange for the privilege of having defendants provide him with scuba diving instructions. To hold otherwise would directly undermine the legislative policy established by the Wrongful Death Act.

Affirmed."

This means that there was indeed a potential recovery. Potential because the appeal was in a pretrial context, i.e. a motion to dismiss based on the waiver. That too you would know had you read the case.

You also missed the whole point of what I was saying . I don't "want" one result or the other, I was pointing out that you don't have a monopoly on legal scholarship. Someone quoted a case as supporting a particular position, you jumped all over him for it, you were wrong because hadn't read the case.

You still haven't.

Your mention of "no recovery" and "causation" are telling. You really haven't read the case, or you read it and didn't understand it. Amazing.

 

[cowboyneal]

Go chase an ambulance...obviously you care about it lot more than I do...anger management problem? All this over what was intended to be a fun and funny thing to consider, a buddy waiver. I go back to one of my original comments: "Litigators, sucking the fun out of life for generations"....Again, the principle you state is ONLY THE CASE IN NEW JERSEY, which has been roundly criticized in many articles and journals. 49 other jurisdictions (plus DC and Puerto Rico) follow the analysis I have been stating as the GENERAL RULE (which would kind of make it the general rule, wouldn't you say?) so, while you're right, you are right only in New Jersey, and not in the rest of the world (that has their head screwed on straight)...

 

[shellbackdiver1]

No such thing as "waivers or insurance" in the country that I am currently working in. DM's, AI's, DCS's and instructors dont even need insurance. The only thing that is said here is "lets go diving".

 

[cowboyneal]

That's my kind of place!!!!! There was a day when people took responsibility for their own actions and safety in diving, until the litigators (that have been sucking the fun out of life for generations) decided they could make money. Funny thing to note about this NJ case (the ONLY one of its kind): apparently, the guy who died was some STATE PROSECUTOR or some other politically connected hack...which makes it interesting that this ONE TIME some appeals court decided to "buck the trend." I wonder what would have occurred if it was some poor {insert minority ID here} guy from Trenton who died...not hard to figure it all out in the end...

 

[michaelp68]

That's my kind of place!!!!! There was a day when people took responsibility for their own actions and safety in diving, until the litigators (that have been sucking the fun out of life for generations) decided they could make money. Funny thing to note about this NJ case (the ONLY one of its kind): apparently, the guy who died was some STATE PROSECUTOR or some other politically connected hack...which makes it interesting that this ONE TIME some appeals court decided to "buck the trend." I wonder what would have occurred if it was some poor {insert minority ID here} guy from Trenton who died...not hard to figure it all out in the end...

Hehehe. You're a funny amusing guy. Really. I was entertained by the initial waiver joke. I'm especially entertained by your attacks on others and cliche expressions to deflect attention away from your mistaken assertions of law. And I'm particularly entertained by your "blame the victim" mentality. I think you wrote that you're a business lawyer, not a litigator. It's evident. Go ahead and swing at me now, too.

 

[agilis]

Cowboy, just so's I don't say them wrong when I order up some fancy Italian food, can you explain how to pronounce "ne'st ce pas" and "en vogue"?

Another thing: can't you get your license to practice law reinstated, now that the statutory age of consent in your state has been lowered?

 

[cowboyneal]

...I think you need reading comprehension lessons, actually...I never heard of a "mistaken assertion of law" I didn't like especially where, as here, my buddy waiver was general in nature, and not intended for use in New Jersey (or anywhere else actually) but was meant to be for fun, not for use or fodder for ANGRY LITIGATORS to argue about with me (which, actually, I just said whatever was opposite to the assertions being made to get the rise, as it were, since I have better things to do with my time that look up New Jersey cases and be "right" about them, and watching the ensuing anger unfold is so much more satisfying), and since you are neither judge, nor jury, my guess would be I don't have to accept your arbitral fantasies...The best part about it is that no one can even argue against the statement: Litigators, sucking the fun out of life for generations...and that's why litigators and trial lawyers are psychologically damaged and argumentative: it's a lack of self-esteem thing...I'm not making that up: there actually was a study done at Harvard Medical School!

...Reinstated Ag? You back for more? I though you were through being bested. I am admitted to practice in 5 states: New York, California, Florida, Montana and Washington (state).

"...les desirs negatifs ne peuvent vous causer aucun mal si vous ne vous laissez pas seduire par eux." Paulo Coelho (Sorry I don't have a French keyboard for the proper accents)

...I know it's hard, but, well, you guys all keep trying real hard and someday you'll make it to the next level!

 

[agilis]

Mr. Neal, I am Agilis' mom. Agilis is sobbing inconsolably, unable to reply to your stinging comments. You should be ashamed. He just vomited all over his copy of "How To Pretend You Are Clever"", so I'd better see to him. Sorry for intruding.