July 1999

Vol. 14, No. 7     What's this?

After Divers Die

part III: Waivers and Releases

from the July, 1999 issue of Undercurrent  

No matter what operation you dive with these days, it’s almost certain you’ll be asked to sign a waiver, most likely saying that you will be unable to hold the operator responsible for any accident, no matter what role he has in it. Period. You’ll be handed a waiver if you take an advanced certification class, take a tank off the beach in Bonaire, or travel on a live-aboard. And, whether you like it or not, most often these waivers hold up in court.

This is the last of a three-part series on the difficulty injured and deceased divers face in bringing lawsuits, based in large part on research conducted by Phyllis G. Coleman, Professor of Law at Nova Southeastern University in Fort Lauderdale; it appeared in the Journal of Maritime Law and Commerce.

Although they are strictly construed, a well-drafted preaccident waiver or release will absolve a defendant from liability in a diving case if he can show: 1) the clause was knowingly agreed to and clearly spelled out the dangers of diving (i.e., there was informed consent); 2) the clause was not inconsistent with public policy; and, 3) the clause does not constitute an invalid adhesion contract.

For example, in Mitchell v. Lang Sales, after signing a release, the decedent drowned after becoming entangled in guide lines set by a defendant. Her husband sued. In upholding the release, the court noted the clear language of the release coupled with the inherent risks of diving, the “voluminous instructional materials” concerning dangers associated with diving defendants gave to decedent, and the fact that decedent was in an advanced course, “point towards an intelligent and informed consent to the release.”

Similarly, in Baschuk v. Diver’s Way Scuba, the court rejected plaintiff’s claim that the release she had signed applied only to negligence during actual class participation. She failed to inform her instructor about her history of ear problems before she submitted the release form. Once she told him, the instructor told her to obtain medical approval to dive but he neglected to follow up. When she suffered a punctured eardrum during the fourth class, she sued. According to the court, the record shows that the liability release signed by the plaintiff in clear and unequivocal language expressed the intent to relieve the defendant of all liability for personal injuries to the plaintiff caused by the defendant’s negligence. The liability release was enforceable.

In Hewitt v. Miller, the court upheld a release signed by decedent before enrolling in an advanced scuba class. Following his disappearance without a trace during the class’ second dive, defendants denied liability based on the release. The court agreed, finding the language, which was unambiguous and conspicuous, clearly covered this type of accident.

Just how detailed a release or waiver must be to qualify as “unambiguous” is unclear. However, as Whitlock v. Duke University shows, a form will not automatically be insufficient simply because it does not list every type of danger. Plaintiff participated in an experimental simulated deep dive and, as a result, suffered permanent brain damage. Claiming he had not been warned about such a possibility, he sued the parties who conducted the experiment. In granting defendants’ motion for summary judgment, the court found that, although the form failed to warn about brain damage, there was no evidence that there was a “reasonably foreseeable ... risk of brain damage different from that normally associated with decompression and unique to experimental deep diving.”

On the other hand, a release that fails to express the parties’ intent “in unmistakable language” will not be upheld. In Stoll v. Niagara Scuba Sports, the appellate court held that summary judgment should not have been granted where defendant’s release was vaguely worded and there were questions whether plaintiff was “fully advised of the potential dangers” involved in diving. Likewise, in Reuther v. Southern Cross Club, plaintiff had signed a form releasing defendant “from any and all claims.” The court held this wording did not necessarily provide protection for injuries suffered on the Club’s boat en route to the dive site.

Even when a release is clear, however, some courts refuse to enforce them because to do so would violate important social interests. In particular, courts are concerned that recreational business owners, immunized by broad releases, would lose their incentive to take safety precautions and obtain sufficient insurance even though, relative to their customers, they are in the best position to act. Likewise, if a special legal relationship exists between diver and defendant, some courts have found the relationship provides a basis to deny enforcement of the release.

Several plaintiffs have sought to invalidate their releases on the ground that they represent inequitable adhesion contracts. For the most part, such arguments have failed.

In Marshall v. Blue Springs Corp., for example, plaintiff had signed a release “for any occurrence in connection with this diving class that may result in injury or death.” To complete the course, he was required to sign an additional waiver releasing the park where the dive was to take place for “any accidents or mishaps which may occur while scuba diving. . . .” Despite these waivers, plaintiff sued both the school and park when he injured himself while attempting to put on his fins in preparation for a dive. In dismissing the suit, the court rejected the argument that the releases were adhesion contracts. Finding no evidence he had been forced to sign the forms, the court pointed out the plaintiff could have pursued other options. Such as looking for a course or dive site that did not require releases or abandoning his quest for scuba certification.

Coleman notes, however, that a valid release will probably not absolve a defendant of gross negligence.

In conclusion, you never have to sign a release, but then you most likely won’t get to dive. You may try to modify the release, but you may not be successful. Basically, when you go diving assume the responsibility is yours, yours entirely, and enjoy the dive. But, dive safely.

— Ben Davison