Liability Release Forms - Completely Legal ??

[k ellis]

Because of the disclaimer on the cups, McDonald's can't be sued for negligence in not telling their customers the coffee is hot.

Exactly why they put it on there. Point well made! However with the jury process it still could swing in favor of the plaintiff though HIGHLY unlikely since 12 people will be looking at it based 98 percent on what they hear unless photos exist and these would be considered also if they were presented. Remember 12 people picked at random may not have the same view as a lawyer and a judge would have. A waiver and the statement on the side of the cup are proof positive that you should have known better and would be presented to the court as well to show that the plaintiff knew what they were getting into in advance and knew the inherent risk.

As far as water on the boat as you stated it would be very very hard to prove negligence on the boat owner due to the fact first off with waves splashing and divers jumping in and out of the water a reasonable person would expect water to be on the deck of a boat of this nature.

Very good post and it was very informative thank you Soltari675

 

[Rhone Man]

The really short answer is - it's complicated. I am admitted to practise law in four different countries, and the law relating to waivers of liability for negligence is different (and complex) in each.

A more interesting legal development is dive stores not asking for waivers, but asking their customers to sign agreements whereby the customer "agrees" not to do anything stupid. If they do, then they may sue the dive store alleging negligence but the dive store can counterclaim for breach of contract. And very few accidents occur without some degree of error from the injured diver.

 

[BoltSnap]

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.

This matter is better left to the specialists (lawyers) to decide. Each locale is different (some counties, states, etc. have different laws even within the same country) and one can't/shouldn't make assumption like that.

BTW, according to our lawyers, if you tell a student (or anyone else) that the contract/waiver he/she is about to sign is worthless, you just made it worthless by your statement even if it wasn't worthless. You must never give somebody a waiver to sign such as the case with the scuba waiver and tell the prospective signer: "Oh, don't worry this is just a piece of paper and it is worthless."

Again, leave it to the specialist to decide what is and what is not worthless and what students/clients should and shouldn't sign and never make assumption where it is or is not valid. Most agencies/insurance carriers have much better grade of lawyers and experts that it would be very prudent to follow their advice and not try to second guess them on the part of the dive leader/store staff or boat captain, etc.

 

[CaptRam]

It really does not matter in the end ,if you cannot recover a single penny after you win a judgment- As a Professional Charter Captain in Greece & the United States with 2 boats/bisnesses-1 is a dive boat in S. Florida , Both boats are set up in their own corporate LLC separate from each other, I own nothing at all except my home which is protected by Fl homestead law- I am the manager of these Corporations-not legally the owner-If I did make a big mistake and killed you somehow as has happened many times right in South Fl-All you could get is the vessel that you were aboard- and no lawyer is going to waste his time on this once he finds out there are no deep pockets to pick-

 

[k ellis]

It really does not matter in the end ,if you cannot recover a single penny after you win a judgment- As a Professional Charter Captain in Greece & the United States with 2 boats/bisnesses-1 is a dive boat in S. Florida , Both boats are set up in their own corporate LLC separate from each other, I own nothing at all except my home which is protected by Fl homestead law- I am the manager of these Corporations-not legally the owner-If I did make a big mistake and killed you somehow as has happened many times right in South Fl-All you could get is the vessel that you were aboard- and no lawyer is going to waste his time on this once he finds out there are no deep pockets to pick-

If this were the case they would most likely go after the insurance company provided the company carries insurance (Depends on location as some places may possibly not require a company / boat or buisness to carry this)

 

[Walter]

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)

That was not the issue. Most coffee is sold at 135 - 140°F. At the time this took place, 1992, McDonalds sold their coffee at 180 - 190°F. Had the coffee been at a temperature less than 155°F, she would not have been seriously injured. As it was, she received 3rd degree burns over 6% of her body. Between 1982 and 1992, McDonalds had received over 700 claims about their coffee burning customers. She was in the hospital for 8 days undergoing skin grafts. She tried to settle for $20,000, but McDonalds refused.

As for the warning on the cup, McDonalds admitted during the trial that it was a reminder, not a warning because the location of the writing would not warn customers of the danger.

McDonalds admitted that the coffee was too hot to drink because it would scald the mouth and throat. They intended for customers to drive to their destination before drinking the coffee. Their research showed customers intended to drink it while enroute.

The judge stated that McDonalds was reckless, callous and willful.

 

[Wookie]

In Florida, waivers are generally thought to be enforceable. In Texas they are not. A Good waiver will have a separation clause (just because one part of the waiver is found to be unenforcable, you can't throw the whole thing out), and a venue clause (you can sue me, but it's going to be where I live). Release for gross negligence is generally not enforcable, therefore it's not worth having in a waiver.

The waiver is designed to show a judge/jury the frame of mind the plaintiff was in before they signed it. For instance, every diver that comes on the Spree must agree in writing to the Terms and Conditions of the trip, the contents of the waiver, and that they don't have any medical contraindications to diving. I won't accept any money from them unless they agree to that. If you get to the boat and didn't bring your pre-printed waiver, we will give you another one. If you make any stray marks, circles, line-outs, refuse to initial or sign the waiver, we immediately refund your boarding fee and wish you a pleasant evening and week. You will not be allowed to re-board for that trip, you will not be compensated for your travel costs to get to the boat, because, you see, you've already agreed to the conditions in the waiver, and I can prove it.

Therefore, if you sue me because you fell down the ladders or tripped on the dive deck, (both of which are negligence on my part), I will present to the jury/judge that you were willing to release me for that negligence. You released me before I ever took your money, therefore you understood the risks of the trip, including unknown risks, and still wanted to go enough to accept those risks.

Is it foolproof? Not if your lawyer is better than my lawyer. Like someone said above, all you will get is a 36 year old boat with a big fat loan on it. Your lawyer probably isn't willing to work too hard for an asset like that.

 

[Wookie]

If this were the case they would most likely go after the insurance company provided the company carries insurance (Depends on location as some places may possibly not require a company / boat or buisness to carry this)

Many dive operators do not carry liability insurance just for this purpose. They will keep their significant assets in trust, and the suing party will get nothing but the boat. Even a boat that is a significant asset likely has a loan on it (I keep one just for that purpose).

As I said in a PADI bashing thread not too long ago. PADI (and the training agencies) make you have insurance to protect the training agency, not to protect the operator. If the training agencies make the DM, the instructor, the boat, and the shop all carry insurance, there's 3 or 4 million bucks inline before we ever get to the training agency. If the training agency gets named, they show up with their platoon of lawyers, and the plaintiff's lawyers drop the training agency because there is lower hanging fruit to pick. Make the dive operator a shriveled nasty fruit (no insurance), they get dropped too.

My diving liability policy is also my contractors general liability policy too, and if I want to work for the government, I have to protect it at all costs.

 

[Bobspadger]

I ran a leisure centre in the uk for a number of years and know that the waivers we asked people to sign were generally un-enforcable and not worth the paper they were written on if we were negligent. They were there to make the customer think first and as a first line of defence.

 

[Scubagolf]

The California Supreme Court recently held that releases are valid only to protect defendants from being sued for general negligence. They are invalid if you can prove that the other party's conduct was more than merely negligent, e.g., gross negligence or recklessness.