Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.Posted: June 23, 2014
This case is a mess, mainly because the defendant’s risk management and release “program” is a mess. Each level of scuba dive required a different release at this dive center, the basic dive releases were so badly written, when the next level of dive was done without a release, the first release failed.
Date of the Decision:
Plaintiff: Dominic Diodato, as personal representative of the estate of his late wife, Aviva Diodato
Defendant: Islamorada Asset Management, Inc., etc., et al.
Defendant Defenses: Release
Holding: for the plaintiff
The plaintiff is the husband and the estate of the deceased wife. The husband and wife traveled from Arizona to go diving with the defendant in Florida. This was their second trip to the defendant to dive. The first dive of this trip was called a shallow reef dive. The next day the husband and wife were to do a more advanced dive, a wreck or deep water dive. At the beginning of the second dive, the wife died.
The plaintiff’s signed a release on their first trip to the defendant’s dive operation in 2009. Another release was signed in 2010 for the shallow reef or first dive of the second trip. A third release was to be signed prior to the second dive of the second trip the wreck dive. The dive operation had a “standard practice” of having different releases signed before each dive or level of dive. The dive instructor failed to follow the standard practice and secure the signatures on the third release.
The plaintiff sued, and the trial court dismissed the case based on the releases, both the 2009 and 2010 releases. The plaintiff appealed.
Summary of the case
The court sets out its arguments quit quickly in its review of the facts of the case.
The trial court rejected Mr. Diodato’s argument and evidence that the dive operators had failed to follow their own standard practice of procuring a different form of release for the more advanced dive and the boat trip to be undertaken on the day of the tragedy. [Emphasize added]
This is a very interesting statement by the courts. The defendant had a series of procedures or “standard practice” which the court found the defendant had failed to follow. Failing to follow your standard practice was of concern to the court.
The second issue was the first release signed did not cover the activities on the second dive. That alone was enough for the court to overturn the trial court’s decision.
Applying well-settled Florida’s law disfavoring and narrowly construing exculpatory clauses, we reverse and remand for further proceedings. The scope and duration of the “activity” to which the signed exculpatory provisions applied is a genuine issue of material fact that precludes summary judgment.
A release needs to have information that relates the risk to the signor that he or she is agreeing to. Here the information in the first two releases was not enough to support a defense for the third activity.
“Scope” would reasonably address the hazardous activity which the releasor has paid the releasee to allow him or her to undertake, and which the releasee insists must be at the releasor’s own risk if the activity is to proceed. “Term” would reasonably address the anticipated duration of the hazardous activity for which the release has been required and obtained. The scope and term of one hazardous activity may naturally vary significantly in the level of risk assumed by the releasor when compared to another hazardous activity.
Rarely has this been an issue in past decisions in Florida or other states. However, this court beat the issue continuously.
A pre-printed release signed for an introductory scuba certification class in shallow water would ordinarily have a different scope, level of risk, and cost than a deep water cave dive or offshore wreck dive, for example. The pre-activity “knowledge review” described in the instructor’s testimony in this case was plainly calculated to communicate the risk of an advanced activity to the participant about to be asked to initial and sign a form of release.
Finally, the court then looked at the release and found that the activity the plaintiff’s undertakings were not defined in the release. “’Activity’ is not defined in the releases signed by Mrs. Diodato….” The court used this analysis to state that the level of risk described in the signed release was different from the level of risk of the dive the plaintiff died doing and as such, it could be argued that the plaintiff did not want to assume or recognize that level of risk.
Instead, the defendants’ April 15 form recognized a different activity and level of risk, expressly defining this activity as an “Excursion” and including within it the hazards of scuba diving as well as “injuries occurring while getting on or off a boat, and other perils of the sea,” a category of harm not addressed in the signed releases.
The court also found that because there was an opportunity in the unsigned release to purchase insurance, if this was a greater risk than the plaintiff might have wanted to accept or a risk the plaintiff wanted to insure.
And because the defendants’ prescribed form was not presented or signed, we will never know whether Mrs. Diodato might have inquired about diver accident insurance, or obtained it, as contemplated by the separate PADI form.
Next the court took on the releases themselves. The releases were only good for one year. The releases also had boxes to initial which the plaintiff’s failed to initial. The quote from the decision below is very telling.
It was the practice of Key Dives to require their customers to sign a release immediately prior to a day’s dive. Each of the Diodatos signed a release in favor of Key Dives, and those connected with Key Dives, on August 29, 2009. On the reverse side of the re-leases, they initialed boxes stating, “[t]his release is valid for one year from the date of this release.” On April 14, 2010, again before a dive, the Diodatos signed other releases; this time they did not initial the box providing for the one-year operative period. They dove that day. On the morning of the April 15, 2010, dive, the dive fatal to Aviva, the Diodatos were late in arriving, and did not sign a release.
The court pointed every failing in this operation and its release, to support its decision. Then the court lays out this bombshell, which honestly; I hope is a mistake.
This final dive was to be a wreck dive to a ship called the Eagle. It was to be an advanced open water dive, a dive for which; according to the Plaintiff, dive industry standards dictated a particular form of release must be used. [Emphasize added]
The dive industry is telling dive operators what releases to be used. I would have brought the dive industry in as a third party defendant and let them pick up the tab for some of this mess.
So Now What?
This decision can also be used as a checklist of what not to do.
First don’t make your procedures so difficult that you can easily screw them up. In this case, each successive series of releases just created openings for a release to fail.
Write a release. Write a release to cover every possible risk. In this case, a release was signed for an easy activity which did not outline the risks of the riskier activities. That is just a waste of paper.
What if on an easy dive, an unexpected storm rolls in that turns the dive into a nightmare. A shallow water dive in the keys near coral can shred divers, making getting into the boat a gymnastic event and provide no place to hide in or out of the water. Are your weather forecasting skills so great that you make sure easy dives do not escalate in risk. Rather than not diving cover the risks with a release.
Contracts can last forever. Most mortgages are for thirty years, and a mortgage is a contract. Don’t create a release that, in and of itself, is limited. Here the releases were only good for one year. Write your release so it is good forever. Don’t give the plaintiff away to sue you.
If the plaintiff signed a release, limited to one year, on January 1, and then was also injured on January 1. The plaintiff would only have to wait until January 2nd of the next year to file a lawsuit to eliminate the release as a defense.
You don’t need initials. You need a signature, and you should have a date. Initials are only discussed in releases when someone fails to initial something, and the court points it out. On top of that it just adds time to the entire process. Instead of checking each release for a signature date and other information you may collect, you have to check for a signature, date and each box that may need to be initialed.
You have to have a well-written, properly written release for your operation, your state and your risks. That can be a complicated document. However, don’t overly complicate your operation and in this case eliminate a defense by creating too many standards, following bad advice and not even getting signatures on the documents.
If you need a well-written release, email or call me!
What do you think? Leave a comment.
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