"Throwing the waiver out"

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Posted by Ken Kurtis on April 14, 2004 at 17:21:14:

In Reply to: waivers do not protect dive operators posted by Chris on April 13, 2004 at 19:03:03:

We've been using the term "throwing the waiver out" a bit in this thread and I thought perhaps a bit of clarification might be in order because, as far as I understand the phrase, it doesn't mean what the words might seem to convey.

The intention of the waiver is not to prevent a lawsuit. Anyone can sue for any reason. The intention of the waiver is to dismiss the suit without having to go to trial on the basis of the diver signing the waiver agreeing to assume all risk and liability and relieve the waived parties of the same. Basically, the properly-executed waiver removes any basis for a suit and, once basis is removed, the lawsuit is dismissed.

"Throwing the waiver out" means a judge won't dismiss the suit simply based on whatever is said in the waiver. However, that doesn't mean the waiver can't be introduced as evidence at trial as to the intention of the diver to relieve the boat/shop/instructor/etc. of libaility. (Which is one reason the Reef Seekers waivers read like a Code of Conduct where you agree to do A, not to do B, etc.)

The difference is that instead of a judge summarily dismissing the case based on the waiver, you'd have to convince a jury that the intent of the diver was to assume all risk and responsibility. You might still previal in the case based on the contents of the waiver, even though you didn't get a summary dismissal because of it.

CalDiver or others, comments?????

Ken Kurtis
NAUI Instr. #5936
Co-owner, Reef Seekers Dive Co.
Beverly Hills, CA

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