L
awsuits are prevalent in modern society, and
the diving community is not immune to them.
It’s important for both certified divers and dive
operators to understand their legal rights and
responsibilities. We ask the experts.
NOTE: This article is not intended to provide legal advice
regarding any given set of circumstances. Laws vary widely
depending on where an accident occurs or the jurisdiction
where it is litigated. You should always consult with legal
counsel if you believe you have suffered an injury or loss due to
the failure of a party to meet a legally required duty of care.
Prior to diving, divers are asked to sign a waiver and/or
release. What does that document mean for divers, and
what kind of protection does it offer for operators?
Michael Steidley:
When a diver signs a liability release
and assumption-of-risk form, he is acknowledging that he
understands the risks inherent to scuba diving and that
he releases the operator from responsibility should he be
injured or die. Many diving waivers include a statement of
safe diving practices and require the diver to review and
agree to follow them.
Releases and assumptions of risk in scuba diving have
varying degrees of strength. A well-written waiver can
help defend an operator in the event of an accident
and subsequent lawsuit. With a properly executed and
enforceable waiver and release, a plaintiff would typically
have to prove gross negligence to win a lawsuit.
Stephen Hewitt:
The diver is agreeing in writing not to sue
the dive operator for injuries and damages caused by ordinary
negligence within the scope of the diving activity. The release
is used as a bar to the prosecution of a lawsuit by an injured
diver. It may not bar claims for injuries and damages caused
by gross negligence or events outside the ordinary scope of
diving, such as leaving a diver adrift at sea. References to
assumption of risk in the waiver and release agreement are
circumstantial evidence that the diver’s injury was due to an
inherent risk of the activity. The court determines whether
the risk that caused the injury was inherent to scuba diving
and could not be prevented without altering the sport.
When the waiver and release agreement are not enforceable,
the developing trend is that the trial court will let a redacted
version of the waiver and release be shown to the jury as
evidence of the diver’s agreement to adhere to safe diving
practices, the scope of the diving activities, a testament of
fitness to dive and evidence of the diver’s skill and awareness.
David Concannon:
The diver is acknowledging that scuba
diving involves certain risks and is agreeing to assume those
risks — including the risk of injury and death — by engaging
in diving. The release is intended to show a judge or jury,
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FALL 2013
Legal Liability in Diving
RESEARCH, EDUCATION & MEDICINE
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E X P E R T O P I N I O N S
T E X T B y M a u r e e n R O B B S / P H O T O S B Y S T E P H E N F R I N K
