Oh, Those Releases

While it’s conventional wisdom that waivers divers sign don’t hold up in court, they more often do than don’t. Here are two recent contradictory cases.

In 1995, Tim Bordon died in an advanced course taught by Donna Phillips while diving in Florida from the Manta Ray, captained by Timothy Phillips. Before the dive, they told Bordon that if he needed assistance, he should wave to Captain Phillips. If he could not reach the boat, he should swim to the tag line. Bordon got in trouble and Phillips saw him wave his hand, but interpreted it as an “OK” signal. Phillips detached the tag line from the boat. When the decedent reached the tag line, he was unable to pull himself into the boat. When the boat reached him, he had drowned.

Bordon had signed PADI’S “Liability Release and Express Assumption of Risk,” which states that he intended to release them from all liability or responsibility “however caused, including .... the negligence of the released parties, whether passive or active.”

Dive boat releases involve admiralty and contractual law. While the court said “that the crew was allegedly negligent when it failed to respond to decedent’s signal, it did not involve the operation of the Manta Ray, but was related solely to ... scuba diving, and therefore admiralty law does not ... invalidate the release.” The court said the “release is clear and unambiguous, reflecting the decedent’s assumption of the risks inherent in scuba diving and his intent to release appellees from all liability, including any liability resulting from their own negligence. Although viewed with disfavor under Florida law, such exculpatory clauses are valid and enforceable when clear and unequivocal.” The court refused to send the case to trial. Plaintiffs served notice of appeal.

In another case, Michael Turnbough suffered DCS after a certification dive led by Janet Ladner. When told they would require him to execute a release, he questioned a fellow student (who happened to be an attorney), who informed him that they were unenforceable. Turnbough executed the “Liability Release and Express Assumption of Risk,” which said in part “I understand that diving with compressed air involves certain inherent risks: decompression sickness [and others].”

They made two dives Saturday and two Sunday, the first to 48 feet and the second to 60 feet. Ladner calculated the maximum time allowable for the second dive as thirty-eight minutes. That evening, Turnbough felt the effects of “the bends,” was unable to reach Ladner for five days, when he was referred to a hospital and treated for DCS. They told him the dive was too long and there should have been a decompression stop. They told him he could never dive again. He sued Ladner for negligent supervision and for exposing him to decompression injury.

Twice the case was thrown out, but in December the Mississippi Supreme Court ruled the case could proceed because the release was a contract of a purely personal nature. “The law does not look with favor on contracts intended to exculpate a party from the liability of his or her own negligence although, with some exceptions, they are enforceable...it appears that Ladner may have miscalculated the time for the dive or may have failed to take into account previous dives.... Turnbough did not knowingly waive his right to seek recovery for injuries caused by Ladner’s failure to follow basic safety guidelines that should be common knowledge to any instructor of novices.... Those who wish to relieve themselves from responsibility associated with a lack of due care or negligence should do so in specific and unmistakable terms. The agreement in this case fails to do that.”

The case will go to trial. You can bet, however, that Turnbough’s admission he had consumed several alcoholic beverages at a local cabaret hours before his dive, apparently after Ladner’s warnings, will affect the outcome.