Posted by ChrisM on November 20, 2000 at 17:33:56:
In Reply to: Re: Not ready/qualified/trained/etc. to make a dive posted by Jason on November 20, 2000 at 14:11:52:
This isn't a flame, but that's incorrect.
There are two assumptions of risk - express (waiver) and implied (conduct). Good luck defending a DM, instructor or captain on implied assumption of the risk. You are definiteyl not going to get out on summary judgment (that is, there is no issue in dispute).
If a DM leads me to 60 feet and I die because I run out of air, my family can sue. If there is an express waiver, the DM has a pretty good shot of getting off (OK, there are issues as to whether the person in charge "increased the risks inherent in the sport", so if the DM takes me to 200 feet on air, there may be other issues to litigate despite the waiver, but these issues don't necessarily require a trial). The DM's attorney introduces the waiver, and if it's good, game over.
If there's no waiver, by what conduct have I assumed the risk? And the risk of what? Every risk? There are a lot of factual questions that will be in dispute. Sure, you're going to argue it, but you're not going to get out on summary judgment (i.e. no trial), and you are definitely going to have to argue to a jury in a very expensive trial.
Any commercial operation that doesn't use a waiver is just stupid.
And, on the last point, a good waiver will include the party's negligent conduct as well, and that is valid. It is true that you cannot waive gross negligence or reckless/willful conduct, but you can certainly waive negligence.
BTW, none of this is intended to or does offer any kind of legal advice of any kind and no one is permitted to rely on it as such.
CJM