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March 2003 Vol. 18, No. 3   RSS Feed for Undercurrent Issues
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That PADI Liability Release: Lose One

from the March, 2003 issue of Undercurrent   Subscribe Now

In 1998, Mary Jean and Paul Olivelli enrolled in a scuba certification class offered by Paula German at The Diver's Way Dive Shop in Long Island, N.Y., where they executed a standard "Liability Release and Express Assumption of Risk" form in favor of German, The Diver's Way Dive Shop, and International PADI. After completing class and pool work, they traveled to Puerto Rico for open water training by Chuck Rew at the Copa Marina Beach Resort, where they executed a similar release agreement in favor of Chuck Rew, the Copa Marina, and International PADI. By signing the release, the Olivellis agreed to assume all risks associated with the dives, whether foreseen or unforeseen.

On their fourth and final certification dive, Ms. Olivelli ascended with her instructor. On the surface, she swam to the dive platform, removed her weight belt and BC, and hoisted herself onto the dive boat swim platform. She suddenly collapsed. The boat headed one mile back to shore where an emergency medical technician team transported her to a clinic, but they ultimately pronounced her dead of an air embolism.

In a lawsuit, her husband alleged that the death of Ms. Olivelli was caused by the negligent acts of the defendants, saying that they failed to devise a dive plan adequately, they failed to supervise the dive adequately, they failed to provide adequate first-aid on the vessel, and the boat was not functioning at full capacity.

The defendants did not challenge the facts, but simply argued for summary judgment in their favor because the deceased had waived any and all claims related to Ms. Olivelli's death through the execution of the liability release.

The plaintiff made several legal arguments, but two of particular interest are that the waiver did not sufficiently explain the dangers associated with scuba diving and the waiver did not cover the defendants' gross negligence.

The court agreed that the waiver was clear, concise, and unequivocal, saying "we find that it would be difficult to imagine language more clearly drafted so as to put a person on notice of its legal significance and effect." The court found that Ms. Olivelli "clearly accepted responsibility for the consequences and had the particular knowledge of the specific and precise risk (embolism) which caused her death."

The plaintiffs also argued that the pre-accident release did not release the defendants from liability for gross negligence, but the court found that "plaintiffs have alleged no facts or produced no evidence to establish a higher degree of culpability approaching willful or wanton misconduct on the defendants' part."

On September 24, 2002, the judge issued a summary judgment, ruling in favor of the defendants and effectively dismissing the case. So another victory for the PADI liability waiver.

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