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August 2008    Download the Entire Issue (PDF) Available to the Public Vol. 23, No. 8   RSS Feed for Undercurrent Issues
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Divers, Sign Your Life Away: Part I

warning: this release may be harmful to your lawsuit’s health

from the August, 2008 issue of Undercurrent   Subscribe Now

In November 1986, 19-year-old Ken Sulejmanagic drowned during his final openwater certification dive. His parents hired a well-known plaintiffs’ personal injury firm in Los Angeles to file a wrongful death action. The YMCA and Ken’s dive instructors were accused of negligence in leaving Sulejmanagic to make his own way back to a buoy after he surfaced from the dive.

This lawsuit was short-circuited by the liability release Sulejmanagic had signed before the dive. The defense made what is called a summary judgment motion, arguing that the release extinguished the parents’ negligence claim. A summary judgment motion is one where the moving party, usually the party sued, files papers in hopes of convincing the court that no key facts are in dispute and that the law applicable to these key facts dictates a judgment in the moving party’s favor. In Madison v. Superior Court, the California state appeals court ruled that indeed the release extinguished the parents’ negligence claim and ordered judgment entered in the defendants’ favor.

In the 22 years since Sulejmanagic’s death, the above scenario has occurred repeatedly in both state court and U.S. federal court lawsuits involving scuba diving releases. The defense files a summary judgment motion, arguing that the pre-injury liability release relieves the defendant of legal liability for his own negligence. The trial court examines the facts surrounding the signing of the release and the accident as well as the release’s provisions. In most cases, the court interprets the release’s language itself rather than giving a jury a role. If the key facts surrounding the release’s signing and the accident are not disputed, the trial court is then in a position to dispense with a jury or court trial and decide the matter on the summary judgment motion papers each side files. No trial. Just a judgment in the defendant’s favor, with costs tacked on which the suing party (absent reversal or modification of the summary judgment on appeal) is obligated to pay to the defendants.

In a word, a liability release has teeth. An attorney representing claimants in the Peter Hughes’ Wave Dancer disaster in Belize, where 20 passengers and crew died in 2001, remarked that one of his main concerns in obtaining a favorable settlement or judgment was the Peter Hughes release.

In this two-part article, I’ll describe the main components of a liability release, and which provisions a court will and won’t enforce. However, I won’t attempt to cover how each state’s courts or various federal courts have ruled on a given topic. Rather, I’ll discuss how a majority of courts have ruled on an issue. Some court opinions use state law on an issue, while others may use maritime law where an accident meets certain requirements. So if you want in-depth advice on how a specific release will apply to a dive, you should consult an attorney with expertise in such matters.

The Anatomy of a Dive Release

The release typically contains five components. The first is a list of who is released. Some releases will include the dive boat itself because if the lawsuit ends up on the admiralty side of a federal district court, the boat itself can be sued, just as if it were a person, if it’s within the court’s jurisdiction. An attorney representing an injured diver (or the dead diver’s spouse, children or other relatives who by statute can file a wrongful death case) will look carefully at this list to see if some available deep pocket or insured person/entity is omitted. A release protects only those “releasees” named in the release.

The second component is the release or waiver (giving up) of liability language. It usually goes from broad (“any and all claims, suits, etc., relating to or arising out of . . . .”) to more specific but nonexclusive claims (including but not limited to negligence, bodily injury, wrongful death, property damage, product liability, etc.). This liability waiver seeks to release in advance the released parties’ legal liability for injuries and deaths stemming from future misconduct.

The third component is the assumption of risk provision. Somewhere in the release will be a list of risks relating to diving. The legal theory behind the assumption provision is the diver agrees that the released parties owe him no duty to protect him from the described risks. Without a duty owed, there is no potential liability. The end result is the same as with the liability waiver provision -- freedom from liability.

The fourth component is a list of acknowledgments, representations and promises by the diver. These tend to cut off any post-accident claims that he didn’t understand what he was signing or couldn’t foresee that he might be injured. The released parties also gain some assurance that the diver has a certain level of sophistication (the fact of dive certification gives the dive release beneficiaries a leg up on recreational activity providers dealing with novice participants, such as whitewater rafters).

The fifth common component is a “hold harmless” and indemnity provision. Typically, the diver here agrees to defend, indemnify and hold harmless the released parties for any liability or damages arising from his participation in the dive adventure. This defend-indemnify-hold harmless language has not been extensively discussed in cases involving recreational activity releases.

While liability waiver and assumption of risk clauses deny the injured diver recovery for the dive operator’s negligence, the indemnity-hold harmless provision seeks to shift to the diver signing the release responsibility for paying the dive operator’s legal expenses and any adverse judgment. If the only party suing the operator is the diver who signed the release, the indemnity clause could conceivably saddle him with the released parties’ legal fees if he loses his case.

A plaintiff lawyer in the 2001 Wave
Dancer tragedy said a main concern in
obtaining a favorable settlement was
Peter Hughes’ liability release.

But most indemnity situations will involve a lawsuit filed against the operator by a third party. For example, let’s say the injured diver’s wife joins in the lawsuit, claiming a loss of the injured diver’s companionship or services (legally classified as a loss of consortium claim). Or the diver signing the release injures his dive buddy, who then sues the operator. In these hypothetical situations, the dive operator under the indemnity clause could demand that the diver who signed the release pay the operator’s defense costs and any adverse judgment arising from the wife’s or the dive buddy’s suit.

Whether a given “hold harmless” and indemnity provision will protect a dive operator is unpredictable. Much depends on whether the provision’s wording is precise enough to trigger where the operator is negligent, and sometimes on whether that negligence is active or passive. Courts are generally reluctant to enforce indemnity clauses where the released party alone is negligent.

When a Dive Release Will Work -- And When It Won’t

The release will protect the released parties from liability for ordinary negligence if the release clearly indicates that this is its effect. The release’s language must clearly tell the average reader that he is giving up his right to sue the released parties should any of these parties later injure him due to their negligence. Most cases don’t require the word “negligence” in the release to achieve this but because this is what the released parties seek to achieve, using the word “negligence” is wise. The negligence being released must be reasonably related to the release’s purpose. Thus, in one unpublished 2004 California state appeals court opinion, a scuba diving release did not extend to the instructor’s negligence in manipulating his student’s sore back. The release language needs to be conspicuous (cases have criticized use of 5˝- and 6-point type as being too small).

An injured diver confronting a release that clearly covers operator negligence will in most instances get nowhere by arguing that he didn’t read or understand the release’s language and effect. The court, in deciding a summary judgment motion, will look to the release’s wording to assess what the diver knew, understood and appreciated. Some courts also look at the diver’s experience. While one signing a release can, like contracts in general, avoid its impact if he can show he signed it through fraud or duress, that is a rare situation. Many dive operators put their release online to help thwart such avoidance efforts.

I should note that a minority of states appear unwilling to even allow release from ordinary negligence. Courts in Vermont, Connecticut and Virginia have refused to enforce recreational releases of ordinary negligence. New York by statute prohibits releases of negligence by “places of public amusement or recreation and similar establishments” (but this statute was held inapplicable to a diving course provider using a private pool because the pool involved was used for instruction, not recreation). A Hawaii statute effective since 1997 prohibits scuba and other recreational activity providers from obtaining a release for their future ordinary negligence.

Coming next month: I’ll discuss other release provisions that courts will generally enforce, such as one dictating the court in which the diver must sue; and some release provisions that courts will usually reject.

Larry Schnabel is a member of the California State Bar and is Of Counsel to the law firm Lewis Brisbois Bisgaard & Smith LLP, headquartered in Los Angeles. He is also a NAUI certified divemaster.

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