Tips About Dive Releases

As my articles in the March and April issues of Undercurrent pointed out, dive releases are generally enforceable.

While your best bet is to find a dive provider who won’t demand you sign one, that’s unlikely to happen. So, if you must sign a release, try to persuade the provider to eliminate particularly objectionable portions. Assuming he agrees, you should both initial any changes

If you are injured after signing a release, check the relevant law. Usually this is where the accident occurred, although under certain circumstances it might not be. Some waivers actually include provisions — which courts typically uphold — selecting the law to apply should a dispute arise. Because different jurisdictions subject waivers to widely disparate levels of scrutiny, it is important to understand where your state falls on the continuum. With the obvious cautionary note that laws can change, Legal Aspects of Waivers in Sport , Recreation and Fitness Activities, a 1997 publication co-authored by Doyice J. Cotten and Mary B. Cotten, provides an excellent state-bystate breakdown.

And, check for flaws in the release itself, including:

• fraud, misrepresentation or coercion in obtaining the waiver
• no opportunity to read or ask questions prior to signing
• misleading or deceptive title
• small or difficult-to-read typeface
• exculpatory language hidden or otherwise not conspicuous
• failure to recite the “consideration” (what the diver receives in return for waiving his rights) for the release
• in the case of a person who lacks capacity, absence of consent by parent or guardian
• an attempt to avoid liability for gross negligence
• no severability clause
• ambiguity in such important terms as:
  • individuals to be released from liability
  • nature of activities waiver covers
  • specific rights forfeited by signing
  • other individuals (relatives, heirs, etc.) for whom the signer is purportedly relinquishing claims

If you decide to challenge a waiver, consult an attorney. Just as you should meticulously research scuba professionals’ backgrounds before enrolling in classes or signing up for trips, you need to carefully investigate lawyers, seeking one who specializes in diving accidents .

Phyllis Coleman, Professor of Law, Nova Southeastern University, Ft. Lauderdale, Fla., is an active diver. She is the co-author of Sports Law: Cases and Materials (American Case Book Series).