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January 2017    Download the Entire Issue (PDF) Vol. 32, 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

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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....

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