Posted by Ken Kurtis on November 20, 2000 at 15:18:39:
In Reply to: Re: Not ready/qualified/trained/etc. to make a dive posted by AADIVER on November 20, 2000 at 14:23:33:
Frank, perhaps I didn't make myself clear or you don't realize that there are two issues here.
You're certainly correct that you can sue anybody for any reason at any time. However, prevailing in the suit is another matter, and this is where the waiver comes into play. The waiver generally does not prevent the filing of the suit. But the waiver frequently results in a summary judgment and dismissal of the case, based on the existence of the waiver.
In simpley terms, you file the suit, I go to court with my waiver, the judge looks at the waiver and (assuming it's valid), says, "Case dismissed." The valid waiver short-circuits the need for a lengthy and costly defense.
And even when the waiver has been held not to be strong enough to result in an outright dismissal, it's still admissable as evidence and can be used to show the intent of the diver to assume risk and absolve the defendant and frequently can destroy a plantiff's case, resulting in a judgment for the defendant (instructor, DM, shop, boat, etc.).
That's what I mean when I say the waiver is valid. It has nothing to do with filing a suit (although some waivers also contain a promise not to sue - but you'd still have to go to court to prevent someone from suing so it's sort of a moot point) only with not having a judgment (loss of the suit) against you.
What did you mean by asserting the waivers aren't worth the paper they're written on, remebering that a waiver doesn't deal with the filing of a lawsuit, but with winning the lawsuit?
Ken Kurtis
NAIU Instr. #5936
Co-owner, Reef Seekers Dive Co.
Beverly Hills, Ca.