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September 2008    Download the Entire Issue (PDF) Available to the Public Vol. 23, No. 9   RSS Feed for Undercurrent Issues
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Can You Make Any Changes to a Dive Release?

from the September, 2008 issue of Undercurrent   Subscribe Now

Subscriber Neal Langerman (San Diego) asked me this question: “What can the diver do when faced with an unacceptable release? Is signing it is the only option? This seems like coercion. I try to remove the negligence releases, but many operators simply refuse to let you on board if you change the form.”

Sign it anyway, because you can then contest the objectionable provision if the release later becomes relevant due to a lawsuit. A diver does not give up his right to contest the objectionable provision by dint of having earlier signed the release. The court will not enforce the provision to the extent that it releases, say, grossly negligent conduct or conduct that violates some statute.

Two factors work in your favor in contesting even a legal provision. First, courts insist the releasing language be clear and conspicuous, because they closely scrutinize exculpatory clauses that release a person in advance for negligent conduct. Also, releases are “adhesive,” meaning they contain standardized language the other side must accept as is with no chance to negotiate. The upshot is that courts will interpret in the diver’s favor any provision the court decides is ambiguous and subject to more than one reasonable interpretation. The second factor in your favor is that a court won’t grant a summary judgment motion if it feels there is any important fact that should be left for a trial.

With all this said, however, the fact remains that courts frequently grant release-based summary judgments to dive operators and other recreational activity providers. Were this not so, many of them would cease operations, either because they couldn’t obtain liability coverage, or no coverage at an affordable premium. And an operator without liability insurance is probably not a good choice for your next dive outing.

- - Larry Schnabel

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