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September 2006 Vol. 21, No. 9   RSS Feed for Undercurrent Issues
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Those Dreadful Liability Releases

well, they aren't ironclad

from the September, 2006 issue of Undercurrent   Subscribe Now

Divers hate releases. But to dive, we usually have to sign a form releasing the operator from liability in the case of a wrongful death, and the courts usually declare them valid. However, because a waiver allows a scuba operator to avoid liability for negligence, courts typically interpret them against the operator.

Determining Validity

Despite having signed a release and agreeing not to sue, divers who are injured (or their heirs) occasionally believe they have grounds for a lawsuit. Whether they win depends on several factors. The most significant may be where the claim is filed. State laws, although similar, are construed differently, and judicial sympathy for clauses that release the blame — exculpatory clauses — varies widely. For example, the Wisconsin Supreme Court has considered such agreements six times in 25 years and has invalidated them all, while releases in Florida are routinely upheld even if they shield operators from gross negligence. That’s not good for Florida divers.

Another consideration is whether a federal statute prohibits boat owners from escaping liability. Unfortunately, diving accidents rarely trigger this provision — it requires that the injury occur in navigable waters and the incident must have a potentially disruptive impact on, and substantial relationship to, traditional maritime activity.

If this Federal statute does not void the waiver, courts look to the following principles:

Informed Consent: You must have signed your release voluntarily to forego the right to sue. The language must be conspicuous and so clear a layperson can understand it. Many are voided because they failed this requirement.

Public Policy: Although a waiver will not be enforced if it violates some public policy, this exception — which assesses whether the service is essential and the parties in an unequal bargaining power — is almost never raised for successful cases involving recreational releases.

Take it or Leave it: An adhesion contract is a “take it or leave it” proposition. When one party is in a superior bargaining position, and the service is unavailable elsewhere, such a contract may be invalid. However, somewhat disingenuously, judges usually assert that divers could (1) object to signing and participate anyway, (2) convince a shop or boat owner to change the document, or (3) choose another provider. Any diver knows that the first two are virtually impossible and the third is futile, as all operators require waivers.

Dangers in Diving:

Diving is viewed as inherently dangerous, and courts accept the argument that the plaintiff knew the dangers. So, these clauses typically are upheld. What judges are really saying is that they think anyone crazy enough to strap a tank on his back and go diving underwater is responsible for whatever happens to him. Nevertheless, creative lawyering has helped some divers. For example, a plaintiff was allowed to sue Little Cayman’s Southern Cross Club after he was injured by a huge wave on the way to the dive site (Reuther v. Southern Cross Club). The attorney argued successfully that, although the risks associated with diving were explained and assumed, the release did not mention the boat ride. Therefore, the waiver did not apply and the defendant was liable.

Diving Abroad

When an accident occurs in a foreign country, if possible it is usually better to sue in the U.S., even with the waiver as a defense. For one thing, in some countries the diving is much better than the judicial system. Further, State laws differ and statutes in the states involved might protect you more. In addition, not only is it more convenient and less expensive to litigate at home, but also most judges tend to favor their own residents.

The primary obstacle to suing in an American court is the probability that it lacks personal jurisdiction over a nonresident defendant. For example, in Delgado v. Reef Resort Ltd. the diver drowned in Belize. His widow, who lived in Florida, sued in Mississippi, alleging that Reef Resort, a Belize corporation did business in that state. The defendant remanded the case to Federal court and sought to have the case dismissed.

Because the plaintiff failed to establish that the court had jurisdiction over the resort, the judge refused to let the case continue. Although “doing business” in Mississippi generally is sufficient under the long-arm statute to subject a nonresident defendant to suit, this law could not be used by nonresidents like the plaintiff.

How to protect yourself? If you dive in a foreign country, try to arrange the trip through an American provider. That way, if you sign his release before leaving your state, and problems arise, you can most likely sue at home. In “admiralty jurisdiction,” the federal statute may invalidate the release and give an American court jurisdiction over the incident. There may also be relief under the Death on High Seas Act.

The Rights of the Heirs

Eugene Pietroluongo contacted Regency Diving Center (RDC) for advanced training. He signed an agreement exempting everyone connected with the course “from all liability or responsibility whatsoever for personal injury . . . or wrongful death . . . on behalf of myself and my heirs.” Notably, Pietroluongo was a lawyer who certainly understood what he was signing.

Then Pietroluongo disappeared during a dive. His body was discovered in 66 feet of water with “an ample supply of air in his tank and equipment in working order.” The medical examiner ruled it an “accidental drowning.” His estate sued.

In Gershon v. Regency Diving Center — a decision the defense attorney warned “could eliminate scuba diving in New Jersey” — the court held a release did not prevent decedent’s heirs from bringing a wrongful death action. The ruling allows for imposing substantial liability on providers and greatly diminishes the value of waivers.

This court said the waiver could not preclude such a suit because the class of heirs entitled to bring such an action is not defined until someone dies. Second, as the beneficiaries had not signed the agreement, they should not be bound. Third, the Wrongful Death Act is remedial in nature and, therefore, must be construed to achieve its “purpose of creating a right of recovery for the economic loss caused by the death of a family member.”

Waiver’s Effective Date

Almost three weeks after she signed a waiver for herself and her heirs, Linda Marie Wieditz went diving with the Culebra Dive Shop in Puerto Rico. Problems with the boat and one passenger caused the crew members to select another destination and required one of the two instructors to stay near shore. Immediately after the five divers entered the water, the instructor realized the current was too strong. He ordered everyone to reboard. Wieditz was last seen trying to swim to the vessel. The instructor lifted anchor to tow others who were drifting. Wieditz disappeared; her body was never recovered. In Sylva v. Culebra Dive Shop, the question was whether a release, signed 20 days before the fatal dive, remained in effect.

When Wieditz’s husband, who had not been on the trip, sued for wrongful death, defendants asserted that the release barred his claim. But he alleged that, because it was not clear whether the release was in effect at the time of the accident, that he was allowed his day in court.

A review of the release’s language found that it did not specifically state if it was applicable only for the day it was signed. Further, it failed to say whether it covered one or multiple dives. Concluding that some questions — including a request for any medications taken during “the past 24 hours”— suggested the waiver was only for a day, the court stated the answer depended on the parties’ intentions. As this is a question of fact for the jury, plaintiff could go to trial and has.

The conclusion is puzzling as the court should simply have invalidated the waiver because of the ambiguity. Remember, the rule is that releases are not favored and, thus, are construed against the drafter. The odds are against the injured or families of the deceased divers when they go to court after signing a release.

The author, Phyllis Colemen, is Professor of Law at Nova Southeastern University, Ft. Lauderdale. Fl. And is the co-author of Sport Law: Cases and Materials (American Case book series). She has written for Undercurrent before on the legality of dive releases. She is an active diver.

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