|Re: Waiver question:|
Posted by brian on September 22, 2006 at 11:09:44:|
In Reply to: Waiver question: posted by FARMHAND on September 22, 2006 at 10:25:29:
I am not a lawyer but have read up on this issue.
First and foremost, the question comes to the Assumption of Risk. Does a "waiver" include an expressed assumption of risk? That is, is the participant aware of the common risks of the sport and do they assume personal responsibility? In the current, unforunate case that we are focusing on, this accident appears to a reasonably assumable risk. DCS, embolism, drowning are all risks that every diver takes on every dive. Therefore, the diver should be aware of it and, in signing the waiver assumes responsibility. However, there are some accidents and injuries, that a reasonable prudent diver shouldn't have concern for: a fire on board the boat, leaving a diver at sea, contaminated air leading to injury or death. These are not reasonable risks and the operator is exposed to liability.
The next issue that the courts have considered is can you reasonably waive liability -- do you have another option. For example, when you have surgery and the hospital has you sign a release of liability, it has been successfully argued in court that you don't have much choice. You either release the hospital of liability or die. Therefore, those "waivers" are often successfully dismissed. Diving, and other "extreme sports", puts the ball in the participants court. No boat operator or dive operation forces you to dive. As much as we feel like we "have" to dive, we don't. Therefore, we don't sign those forms under duress. However, some states have found that a diver does not have the right to sue until an accident. Should that accident result in death, the right extends to his heirs, and thus a diver can not release liability for a right he doesn't yet have, or on behalf of others.
Finally, in California, there was the Supreme Court case of Madison v. Superior Court which dealt specifically with scuba instruction. The court found that the "Assumption of Risk and Release of Liability" properly indeminified the scuba instruction from liability of an accident resulting in fatality. Essentially, as long as all of the measures of the release are met, and the diver signed the release, than it holds up pretty well. Said case shouldn't reflect on operators any way.
That being said, many lawyers will still seek damages in any case, especially those resulting in a fatality. There are plenty of accidents throughout the world in which an operator made a devastating error that resulted in injury to someone else. In those cases, the operator should be held liable. But in many, many more cases, the accident is just the unfortunate reality of the sport to which we all are so dedicate (and enslaved).
Please understand why dive centers and boat operators ask for the releases. Sign them quickly when you get on board and don't fight with them, the DM, the instructors, or others, if they need clarification or completion. They do this because they love the sport and want the best experience for us all, but they have to protect themselves, their business and their families.
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