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January 2017    Download the Entire Issue (PDF) Available to the Public Vol. 43, No. 1   RSS Feed for Undercurrent Issues
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A Legal Opinion on Liability Waivers

does the Hambrook Case Make a Difference?

from the January, 2017 issue of Undercurrent   Subscribe Now

Undercurrent asked Phyllis Coleman, Professor of Law, Shepard Broad College of Law, Nova Southeastern University, Ft. Lauderdale, FL, for an opinion. An active diver, she is the co-author of Sports Law: Cases and Materials (West Publishing) and has written a number of articles on scuba diving.

* * * * *

When word spread about a federal decision from Hawaii that invalidated properly executed releases in a wrongful death case decided late last summer, divers and the industry questioned whether this was a death knell for waivers of liability for incidents that occur in the United States. Unfortunately, it was not. In truth, Hambrook v. Smith really broke no new legal ground.

Signing your life away . . . sometimes literally

Not surprisingly, divers hate releases. But it is likely, unless you are fortunate enough to be going out on your own boat (or, even luckier, on a friend's or relative's boat), you usually have to sign one before you can dive. While generally a properly executed release is valid, there are exceptions.

Therefore, it is important to know that, despite having signed a waiver in which they agreed not to sue, divers who are injured in the United States (or their heirs) sometimes bring a lawsuit after a death or serious injury. Whether they win depends on several factors.

Notably, the most significant may be where the claim is filed. State laws differ, and judicial sympathy for exculpatory clauses varies widely.

Indeed, legislators and judges in some jurisdictions appear almost hostile toward releases, while in others, the waivers are generally upheld. So, for example, Florida (where I live and dive) almost never met a release it didn't like. So we have cases that appear to be contrary to Hambrook.

Another consideration is whether the case falls within admiralty jurisdiction, because, if so, a federal statute may prohibit boat owners and operators from using a release to shield themselves from liability for their negligence. The test is that the injury must occur in navigable waters, and the incident needs to have a potentially disruptive impact on, and substantial relationship to, traditional maritime activity. (Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.)

Hambrook v. Smith - a new case but not new law

To begin, a few words about the tragic but simple facts of a family dive vacation that went horribly wrong. The mother, father, and son were all inexperienced, relatively newly certified divers at a site where "surge and wave sets can sometimes make entering Skull Cavern dangerous even for experienced divers." Although she and her spouse had signed releases, the widow sued. The court found the environmental conditions and the vessel owner's multiple instances of negligence (including creating and executing the dive plan, failing to give a proper dive briefing, inability to use oxygen and CPR, and not having an Emergency Action Plan), all contributed to the husband's death.

The federal district judge actually had little difficulty deciding there was admiralty jurisdiction. "[T]here was no dispute" the death occurred in navigable waters, and plaintiff alleged, "resuscitation efforts on board the vessel were negligent, and the administration of first aid at sea has been found to be a traditional maritime activity." As a result, the releases "purporting to waive negligence claims against [defendants -- all of whom were persons covered under the statute] are unenforceable as a matter of admiralty law."

Further, the judge noted the releases would have been invalid under Hawaii law as well. This is because defendants failed to 1) disclose inherent risks associated with the dive; 2) take reasonable steps to ensure divers were physically able to participate; 3) give divers instruction necessary to participate safely; and 4) take reasonable care to eliminate or minimize danger. Additionally, some of the dangers associated with the dive resulted from defendants' negligence, which meant the risks were greater than the inherent risk typically encountered in scuba diving.

People who dive regularly on commercial boats have probably been warned that these releases are generally upheld, so striking this release (under both federal and state law) seems like important (and great) news. But it really is not "news." There are several other, earlier diving cases where the court found admiralty jurisdiction and invalidated the releases. There are others where state courts rejected the waivers under their own laws. And, of course, there are others where providers were able to avoid liability.

Shultz v. Florida Keys Dive Center is illustrative and actually provides an excellent analysis of what constitutes "traditional maritime activity" in this context.

Patricia Shultz and her family surfaced too far away for them to swim all the way back to the vessel. The boat could not get them because other divers were still in the water and there was no small boat aboard to deploy. By the time the divemaster swam out to help, she was unconscious and died.

After discussing previous cases, the court concluded the federal statute prohibiting releases was not applicable as there was no admiralty jurisdiction "because the activity at issue was scuba diving, not boating." In other words, what is important is "the role played by the boat in causing the injuries." Thus, for example, admiralty jurisdiction did exist when recreational scuba divers were hit by boats or where, after the diver was back on the craft, the crew did not provide competent medical assistance.

Because federal law did not govern in Shultz, Florida law applied and upheld the release, barring the action.

The Takeaway

So what's the bottom line?

It depends. But, typically, if you want to dive with a commercial scuba operator, you are going to have to sign a release, and it will probably shield the provider from liability for negligence.

Nevertheless, although Hambrook did not change the law or make waivers any more vulnerable to challenge, it does raise important issues for divers (and their lawyers) by highlighting the fact that there are circumstances where waivers of liability are not valid.

A release needs to be signed voluntarily. It must also be unambiguous and explicit and has to express a clear agreement not to hold the released party liable for negligence.

In situations where admiralty jurisdiction applies, a federal statute that prohibits waivers of liability might cause a court to refuse to enforce a release that meets the other criteria for validity.

State statutes might provide additional requirements for waivers, and the attitude of lawmakers in that jurisdiction might be more open to carefully scrutinizing the release.

Signing a release generally means giving up the right to sue. However, there are ways around them, so check with an attorney if a waiver appears to present an obstacle to litigation. Most important, of course, is to only to dive with careful, reputable providers.

"The reports of my death have been greatly exaggerated." Mark Twain said it. (Diving releases could borrow it.)

- Phyllis Coleman.

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