Posted by CalDiver on November 20, 2000 at 16:17:38:
In Reply to: Re: Not ready/qualified/trained/etc. to make a dive posted by AADIVER on November 20, 2000 at 14:23:33:
Hey, Frank, as I'm always reciting the mantra on here that people should back up their posts with info, here's a quote from the 1988 case Madison v. Superior Court, 203 Cal. App. 3d 589. There are plenty of other cases that would do as well as this. There have, of course, been developments in the case law in the last 12 years, and this is NOT legal advice, just an illustration of one court's decision.
In the very sad case quoted here, a diver died in class, and his heirs were proceeding with a wrongful death suit. A person can't waive the rights of his heirs to sue for wrongful death, but the defendants in a wrongful death action can use any defenses they would have had against the dead person, including in this case, a waiver. Here, the dead diver had signed a NAUI waiver. He died in class, where his heirs allege he was not properly supervised...
...ironically enough, because the class was not using the buddy system.
The facts are at the bottom of the post, if interested...The reference to Scroggs is another waiver case.
2. Ken Assumed the Risk of Injury and Thereby Relieved Defendants of Any Duty to Him
The release signed by Ken does not suffer from the drafting infirmities found in Scroggs. Although the words "assumption of the risk" are not specifically used, it is clear that Ken expressly acknowledged his intent to do just that. In heavy bold type the release expressly states that it was Ken's intent to exempt and relieve the defendants from any liability for their negligence. By this language Ken expressly manifested his intent to relieve the defendants of any duty to him and to assume the entire risk of any injury. "'In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. [Fn. omitted.] . . . The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.' (Prosser & Keeton, Torts (5th ed. 1984) § 68, pp. 480-481, italics in original.)"
Therefore, we conclude that the agreement is enforceable and, as against any action brought by Ken, would have served as "a complete defense." It had the obviously intended legal effect of shifting the responsibility for any negligence by the defendants from the defendants to Ken. By this agreement, Ken effectively assumed all of the risks of any injury he might suffer as a result of defendants' negligence during the training course.
Ken enrolled in the course on July 29, 1986, and completed the course except for one missed dive. He therefore had not received his Openwater I Certification. On November 15, 1986, he was participating in a makeup dive, which was also to be his final checkout, when the fatal accident occurred.
Ken and a recently certified student named Diver B [name omitted for post] went on the dive with one of YMCA's instructors, Instructor [name omitted for post]). When Ken ran low on air during the dive, Instructor accompanied him to the surface and directed him to swim toward a buoy that had been anchored prior to the commencement of the dive. Instructor then left Ken alone on the surface to continue the dive with Diver B. About 10 minutes later, when Instructor and Diver B surfaced, Ken was nowhere to be found. A search was commenced and Ken's body was located on the bottom.
Post a Followup