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August 2010    Download the Entire Issue (PDF) Available to the Public Vol. 25, No. 8   RSS Feed for Undercurrent Issues
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Court Rules Dive Release is “Too Specific”

how this could change the dive shop’s liability release you sign

from the August, 2010 issue of Undercurrent   Subscribe Now

In May 2010, the California Second Court of Appeal (DCA) ruled that the liability release used by the dive shop Scuba Luv on Catalina Island did not apply to a wrongful death lawsuit filed against it by the family of Raffi Huverserian. That reversed a Los Angeles Superior Court judge’s decision to grant Scuba Luv summary judgment based on the release.

In March 2005, Huverserian, 45, rented dive gear from Scuba Luv, signing a rental agreement that contained a liability release. He and his 17-year-old son dove at Casino Point with the rented gear. At 60 feet, Huverserian ran out of air, made a controlled ascent sharing his son’s air, then went into cardiac arrest on the beach. He died the next day at UCLA Medical Center. The Los Angeles County Coroner’s report states death was probably due to an air embolism.

Huverserian’s family filed a wrongful death lawsuit, contending the rented pressure gauge read inaccurately high, Scuba Luv did not completely fill his tank and rented him excessive weights. However, the coroner’s office reportedly hired an experienced scuba equipment specialist who tested the rented equipment and found no defects.

As often happens in lawsuits involving a recreational activity release, Scuba Luv filed a summary judgment motion seeking to short-circuit the suit before trial (see my two-part article “Divers, Sign Your Life Away” in the August and September 2008 issues of Undercurrent regarding release-based summary judgment motions). The trial court found the release applied to Huverserian’s death, granted the motion and dismissed the case. The family appealed and the DCA reversed the trial court’s dismissal. The case will now return to the trial court, where Scuba Luv will face trial unless it settles the case or finds some other basis for a summary judgment motion. Scuba Luv could also ask the California Supreme Court to review the DCA’s decision. But the chances the Supreme Court would grant a discretionary review here are slim to none.

Scuba Luv’s release failed because the DCA found its introductory language was, ironically, too specific. This language, in boldface and underline, read: “Equipment rental agreement, liability release and assumption of risk of scuba & snorkel gear for boat dives or multiple day rentals.” Following this, in unemphasized print, was broader language covering injury, death or other damages from the rental or use of Scuba Luv’s equipment or from product defect or negligence.

The DCA interpreted the “boat dives or multiple day rentals” to be part of the release, and to limit injury or deaths to those resulting from boat dives or multiple day rentals. It followed that because Huverserian’s death arose from neither a boat dive nor a multiple day rental, the release did not apply to his death. The DCA rejected Scuba Luv’s contention that the “boat dives or multiple day rentals” language was a mere caption and not part of the operative release language. Readers wanting to read the DCA’s published opinion in its entirety can find it at www.courtinfo.ca.gov/opinions/documents/B212823.PDF

The Huverserian DCA opinion will probably benefit more dive operators and insurers than it will divers. Operators aware of this latest appeals court pronouncement on dive releases may now review their releases to be sure they have not inadvertently hobbled the release’s scope with restrictive language. The Huverserian ruling offers operators a signpost by citing approvingly the seminal dive release case Madison v. Superior, observing that the release in question lacked the “qualifying language” found in Scuba Luv’s release.

For divers, the Huverserian opinion may encourage trial and appeals courts to look harder for any flaws or ambiguities in a release allowing an interpretation that rescues the diver from summary judgment execution. Case law is replete with statements that a recreational release must be “clear, unambiguous and explicit.” But with that said, dive and other recreational activity releases simply don’t suffer the degree of scrutiny that courts have long given insurance policies, and increasingly are now giving contract language mandating arbitration. So any diver contemplating a dive injury lawsuit based on a claim of negligence (which, when the wheat is separated from the chaff, is what most dive lawsuits boil down to) should recognize his chances of ever reaching a jury will frequently depend on skirting the defendant’s liability release.

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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