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July 2014    Download the Entire Issue (PDF) Available to the Public Vol. 40, No. 7   RSS Feed for Undercurrent Issues
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Florida Court Rules: Divers Must Sign the Right Waiver

from the July, 2014 issue of Undercurrent   Subscribe Now

To many sport divers, nothing is more grating than having to sign a waiver before diving, effectively eliminating any responsibility by your dive operation, no matter how negligent it is. But if we must sign a waiver, then the operator better get it right, according to a Florida appellate court. In May, it ruled in favor of a widower who sued Key Dives in Islamorada, FL, after his wife drowned, citing the shop's failure to have the woman sign a specific waiver.

* * * * *

Aviva Diodato, 51, of Surprise, AZ, died on April 15, 2010 while diving near the Eagle wreck off Islamorada at the beginning of what was to be "an advanced openwater dive," according to court records. Her husband, Dominic Diodato, then filed a civil wrongful death lawsuit against Key Dives and others associated with the business.

In a summary judgment, Circuit Judge Luis Garcia in Plantation Key ruled in favor of Key Dives, based on printed releases signed by both Mr. and Mrs. Diodato during a prior visit in 2009, and again for a shallow reef dive the day before the tragedy. Lawyers for Diodato argued that the business "failed to follow their own standard practice of procuring a different form of release for the more advanced dive and the boat trip to be undertaken on the day of the tragedy," records state.

Now the Third District Court of Appeals has ruled that Diodato's lawyers were correct. In its 15-page ruling, the court noted that Key Dives did intend for the Diodatos to sign a more specific release form relating to the more advanced dive, but did not do so because the couple was 20 minutes late arriving at the dock, there were others waiting, and the paperwork process can take upwards of 30 minutes. "The scope and term of one hazardous activity may naturally vary significantly in the level of risk assumed by releasor when compared to another hazardous activity," the court wrote. "A pre-printed release signed for an introductory scuba certification class in shallow water would ordinarily have a different scope, level of risk, and cost than a deep water cave dive or offshore wreck, for example."

Aviva Diodato's fatal dive on April 15 was to be a qualifying dive for the higher-level advanced openwater PADI certification, records state. "Had the April 15, 2010, dive been a continuation of the basic openwater instruction contracted by the Diodatos in 2009 ... the scope and term (because of the one-year clause) of the 2009 release would apply," the court wrote. It later wrote that "because the defendants' prescribed form was not presented or signed, we will never know whether Ms. Diodato might have inquired about diver accident insurance, or obtained it, as contemplated by the separate PADI form."

According to reports of the incident, an instructor off the Giant Stride was taking a group under for the first dive of the day when Diodato indicated she wanted to surface. The instructor helped her surface, then went back to the group. Diodato reportedly got to the stern of the boat and was removing gear when she began drifting away. Crew members got the other divers up and went after her. They found her 15 minutes later, floating on the surface and not breathing. She was pulled onto the boat, they began CPR and were met on shore by medics, who pronounced her dead.

The Court of Appeals has remanded the case back for further proceedings, but it remains to be seen if the case will be retried or settled out of court.

- - Adam Linhardt,

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