New Info On Liability Waivers

[ItsBruce]

The California Court of Appeal has just decided a new case that is relevant to the issue of the validity of a liability waiver. It held that the particular waiver was valid and enforceable, but only applied to claims of ordinary negligence, not gross negligence.

The court rejected the plaintiff's argument that the liability waiver was invalid because he did not know that it was a liability waiver. The court reasoned that the plaintiff was presented with it and had an opportunity to read it, but chose not to do so.

But, note, there was no issue as to whether it was ambiguous or not.

Even though the court found the waiver was valid and enforceable, it ruled that the waiver did not apply to claims of gross negligence. There is no precise definition of gross negligence, but it basically entails a showing of conduct that rises to the level of either “a want of even scant care” or “an extreme departure from the ordinary standard of conduct.”

The court also discussed the doctrine of "primary assumption of the risk," which applies to injuries that result from risks inherent in a sport or recreational activity.

The basic idea of the doctrine is that there is no duty to prevent injuries from risks inherent in the sport or recreational activity if imposing such a duty would change the nature of the sport or activity or otherwise curtail vigorous participation.

In the particular case, the operator of a motocross track was not excused from liability for a crash because it failed to have a "caution flagger" on station to warn riders that there was a fallen rider ahead on the track. The court recognized that crashes are an inherent risk in motocross riding and that because of the dust, speed, and configuration of the course, fallen riders may get hit. However, having a "caution flagger" on station does not alter the nature of the sport.

For those who care, the case is entitled Rosencrans v. Dover Images, Ltd.

 

[2 Big 2 Fail]

[This is long. Sorry. I spend way too much time working with lawyers and this is the Court Cases forum.]

While I know of no specific statute limiting the liability of scuba professionals, there are other statutes that are useful in getting a feel for how the law tends to go. Of course, statute law is more clear and consistent than case law, but the Texas statute protecting equine professionals demonstrates issues that can readily be translated into diving situations.

Summary: This Texas section provides that any person, including an equine activity sponsor, equine professional, livestock show participant, or livestock show sponsor, is not liable for property damage or damages arising from the personal injury or death of a participant in an equine activity or livestock show if the property damage, injury, or death results from the dangers or conditions that are an inherent risk of an equine activity or the showing of an animal on a competitive basis in a livestock show. Liability is not limited by this statute where the equine professional knowingly provided faulty tack or equipment, failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity, owns or otherwise is in lawful possession of the land or facilities upon which the participant sustained injuries because of a known, dangerous latent condition, or if he or she commits an act or omission that constitutes willful or wanton disregard for the safety of the participant or intentionally injures the participant. The statute also requires the visible displaying of "clearly readable" warning signs that alert participants to the limitation of liability by law.

It specifically recognizes some aspect of riding that the professional is NOT responsible for:

(1) the propensity of an equine or livestock animal to behave in ways that may result in personal injury or death to a person on or around it;

(2) the unpredictability of an equine or livestock animal's reaction to sound, a sudden movement, or an unfamiliar object, person, or other animal;

(3) with respect to equine activities, certain land conditions and hazards, including surface and subsurface conditions;

(4) a collision with another animal or an object; or

(5) the potential of a participant to act in a negligent manner that may contribute to injury to the participant or another, including failing to maintain control over the equine or livestock animal or not acting within the participant's ability.

All of those things are inherent in messing with horses, and you can't avoid them without grossly altering the activity. I think we could easily talk about similar things in diving, currents, biting and stinging sealife, lost fishing line and nets, unexpected physical reactions to diving, etc.

It also recognizes things that do NOT let the professional off the hook:

(1) the injury or death was caused by faulty equipment or tack used in the equine activity or livestock show, the person provided the equipment or tack, and the person knew or should have known that the equipment or tack was faulty;

(2) the person provided the equine or livestock animal and the person did not make a reasonable and prudent effort to determine the ability of the participant to engage safely in the equine activity or livestock show and determine the ability of the participant to safely manage the equine or livestock animal, taking into account the participant's representations of ability;

(3) the injury or death was caused by a dangerous latent condition of land for which warning signs, written notices, or verbal warnings were not conspicuously posted or provided to the participant, and the land was owned, leased, or otherwise under the control of the person at the time of the injury or death and the person knew of the dangerous latent condition;

(4) the person committed an act or omission with wilful or wanton disregard for the safety of the participant and that act or omission caused the injury;

(5) the person intentionally caused the property damage, injury, or death; or

(6) with respect to a livestock show, the injury or death occurred as a result of an activity connected with the livestock show and the person invited or otherwise allowed the injured or deceased person to participate in the activity and the injured or deceased person was not a participant as defined by Section 87.001(9)(B).

We could think of a number of things in diving that mirror those. The case law of diving liability isn't going to be as clear and consistent as a statute, but this is what one legislature came up with to recognize that there are some things that are unavoidably hazardous, with risks that cannot be done away with without destroying the sport.

But one of the problems with not having an explicit statute is that an operator has to rely on the waiver, and they may not cover everything. As one law firm points out in one case, the waiver addressed inherent hazards of diving but not of being carried by boat in bad weather. (Maritime law can get niggling.) Pretty clearly, it's not a bad idea for any scuba profession to think carefully about all the circumstances involved in the operation that aren't strictly "diving" and have an attorney work them into the release.

There's an interesting thing about releases that operators might want to think about. In what may be the only Texas case, the plaintiff appealed a summary judgment in favor of the dive shop by claiming it was unfair to rely on a waiver when the victim was deceased and could not testify about the circumstances of signing it. The court rejected the argument, pointing out that other students were available, making it a very good idea to present the release in class, pointing out that it's a legal document, so that in the worst case, there's always someone alive to testify that you did it right.

Does any state or nation have a statute that limits liability for scuba professionals or operators, other than the California statute that protects state agencies and state employees?

 

[Peter Guy]

Bruce -- I wasn't aware of any jurisdiction that allowed one to waive claims of gross negligence -- not saying there aren't, just that I'm not aware of any. The Cal case sounds pretty vanilla to me.

2Big -- Some time ago the equine industry made a big push to have statutes adopted which set forth the liability limits for equine owners and trainers and many states adopted the statutes. I wasn't sure then, nor am I sure now, they are necessary -- but they probably don't hurt.

I'm not aware of any similar push for Scuba protection laws.

 

[ItsBruce]

The Cal case is pretty vanilla, except for (1) how easily the court disposed of the plaintiff's argument that he did not know what he was signing, and (2) how easily it disposes of the bit about waivers not being worth the paper they are written on.