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October 2003 Vol. 18, No. 10   RSS Feed for Undercurrent Issues
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Court Dismisses Andrea Doria Suit

upholds liability releases

from the October, 2003 issue of Undercurrent   Subscribe Now

Chris Murley died on his third attempt to dive to the deep water wreck of the Andrea Doria. Murley, 6'6" and 350 pounds, was in poor health and had fewer than 100 dives under his belt. This tragedy is described in the book Fatal Depth, Deep Sea Diving, China Fever, and the Wreck of the Andrea Doria by Joe Haberstroh, which was reviewed in the July Undercurrent.

In July 2001, Murley's family filed a wrongful death lawsuit against his tri-mix diving instructor Joe Jackson, and Jackson's agency (Technical Diving International, or TDI), Cincinnati Diving Center (CDC, the dive shop that booked his trip on the dive boat Seeker), and Deep Explorers, Inc., the operators of the boat. Murley had signed liability releases and "express assumption of risk" agreements with the parties his descendents sued.

In July 1999, Murley attempted his first dive on the shipwreck but turned back after descending only part way. He aborted the dive because he thought he analyzed his breathing gases incorrectly and experienced a visual disturbance he described as a "blue haze."

The next morning he successfully descended to 189 feet on the Doria. That afternoon, he again entered the water and gave an OK signal to Jackson, who followed him into the water. While Murley was on the surface, crewmembers saw him struggling and entered the water to assist him. Jackson grabbed Murley's tank manifold and asked him what was wrong. Murley replied "I'm drowning" and "help." Jackson added air to Murley's dry suit and BCD and tried to get him to keep one of his second stages in his mouth, but Murley refused. As Jackson and another crew member towed Murley on his back to the stern of the boat, Murley became unresponsive. While Murley was still in the water, a crew member began mouth-to-mouth resuscitation. Once on board, Jackson and other crew members performed CPR until a Coast Guard helicopter arrived 45 minutes later. Murley was transported to a hospital in Cape Cod, MA, where he was pronounced dead due to drowning.

According to court documents, Murley suffered from hypertension when he received his PADI open water certification from CDC in March 1998. Nevertheless, in short order he progressed thorough several TDI technical diving certifications.

When he died on the Doria, he was working on his TDI advanced tri-mix certification with his instructor, Jackson. Jackson said he decided not to issue Murley his tri-mix ccard until after he successfully dived the exterior of the Andrea Doria, to give Murley more supervised experience on the wreck. The defendants claimed that Murley had overstated his experience on the releases.

In July 2001, Murley's relatives filed their wrongful death suit, arguing that the defendants knew or should have known that Murley lacked the experience to be enrolled in the advanced technical diving course. The defendants responded that they were not responsible for Murley's death because he knowingly and voluntarily signed the liability releases.

U.S. District Judge Arthur D. Spatt found that Murley clearly understood the dangers associated with scuba diving. He represented on the three releases that he was advised and thoroughly informed of the hazards of scuba diving and that he assumed all risk of harm, injury, or damage.

Murley himself had represented in the releases that he had participated in more than 100 dives, that he was physically fit for deep technical diving and that he understood it was his responsibility to make his family aware that scuba diving is an ultra-hazardous activity. Murley also represented that he was exempting the defendants from "any and all liability for personal injury, personal damage, and/or wrongful death, or otherwise, caused by NEGLIGENCE or otherwise." He represented neither he nor his heirs would bring any claims for "personal injury, personal damage, and/or wrongful death."

The court found that the releases "clearly expressed the defendants' intent to free themselves and their employees from liability arising from negligence, and the language contained in the releases unequivocally put a layperson on notice of their legal significance and effect." While Murley may have lacked the physical stamina and training for such an advanced dive, Judge Spatt found no evidence that Murley signed the releases unwittingly, as the result of fraud, or under duress. He found that "plaintiffs have failed to produce any evidence that the defendants acted with gross negligence."

Based on those findings, Judge Spatt dismissed the complaint in August, stating, "A dangerous activity such as scuba diving is a strictly voluntary pursuit."

Everywhere a diver goes today, he is required to sign a release. While many divers still think that releases are easy to void, it's not true. We asked Phyllis Coleman, Professor of Law, Nova Southeastern University, Ft. Lauderdale, FL, to comment on this cause. Coleman is the coauthor of Sports Law: Cases and Materials (American Case book series), has written for Undercurrent on the legality of dive releases, and is herself an active diver.

* * * * * *

Courts generally uphold releases in which divers surrender their right to sue for injuries or death suffered while diving. Thus, it was not surprising that the court in Murley v. Deep Explorers, Inc., concluded the waivers Christopher Murley signed prevented his survivors from recovering damages when he drowned attempting to dive the Andrea Doria.

Murley is a wrongful death action based on claims of negligence (failure to act as a reasonably prudent person would under similar circumstances). Therefore, the judge applied the "almost universal" test for determining validity of such agreements:

1. Releases must be unambiguous. They will only be binding if the language clearly explains exactly what rights you are giving up.

2. Releases must be knowingly and voluntarily signed. The consent to assume the risks must be informed and obtained free of fraud or duress. This is a fairly low standard -- courts will say you should either find another school, or place to dive. Or abandon the hobby.

3. Releases must not be inconsistent with public policy. Unfortunately, judges are likely to decide that waivers in scuba cases do not implicate public policy concerns because diving is not essential and is a hazardous activity.

4. Releases cannot be invalid "take it or leave it" contracts. Because you do not have to dive, you have the choice to walk away.

Sadly, the outcome for Murley's heirs might have been different. The final comprehensive release he signed explicitly provided he could write "VOID" next to any section with which he disagreed. Of course, had he objected, he might not have been allowed to dive.

On the other hand, if he rejected the waiver and was permitted to dive, a court probably would have refused to enforce the clause. First, ambiguity will be construed against the drafter -- here the dive professionals. Second, courts tend to disfavor releases that immunize wrongdoers from suit.

Instead, Murley, like most divers, probably did not even read the form. But ignorance of a contractual provision is not a defense.The law presumes you know what you sign and will hold you to it. Nevertheless, there are exceptions.

Judge Spatt dismissed the complaints, stating:
"A dangerous activity such as scuba diving
is a strictly voluntary pursuit ... "

First, rules concerning releases vary. Some jurisdictions take a dim view of these agreements. Usually the law where the accident occurred controls. Thus, if that law is not favorable, investigate whether you can file suit somewhere else.

Further, waivers are common throughout the world. Although many places apparently use forms that are routinely upheld in the United States, in Australia, for example, these clauses are typically ineffective. Of course, this means you would have to sue in that country.

Second, probably because courts do not want people who injure others to avoid responsibility, a waiver might be annulled if defendant was guilty of gross negligence (failure to exercise even a slight duty of care).

Third, because minors cannot contract, their parents sign for them. However, recently a Florida court decided the release the mother executed did not preclude the father from bringing a wrongful death action when their son was mauled by hyenas on a safari.

So what should you do? Cross out sections that attempt to have you assume the risk of anyone else's negligence. Initial each change. Of course, your modifications may be rejected.

If you dive anyway, choose reputable providers. And, because you have agreed to be responsible for injury or death, make sure your health and life insurance cover diving accidents.

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