Survivors can now sue (new ruling?)

[kelpdiver 2]

Bad as the result, I agree with the ruling. I can't waive other people's legal rights. I don't have a concern with a waiver that includes "It is my wish that my family honor this agreement."

As for this incident, you have conflicting facts. Two instructors did not have to escort the other diver to the surface. And an experienced diver (20 years, but unknown currency) should have no problems in such easy conditions. To die at that depth with air suggests health issues (cardiac) but we are getting a tiny picture.

The scuba insurance industry is really bad about settling out of court, establishing very little case law. It wouldn't take too many cases to discourage bad suits. Diving has a reputation for being much safer than skydiving, though in terms of fatalities (not injuries) the difference is not huge - perhaps 2:1.

It also wasn't clear what the 'advanced' training was. AOW? Cavern? Deep? To clarify for Ron and others,
OW training dives may not be past 60ft, AOW, at least for PADI, may not exceed 100ft. Upon certification, PADI strongly suggests those are limits, whereas NAUI only recommends such. In reality, conditions are more relevent than depth. Cozumel at 140ft in a 6 pack is much safer than Monastery Beach (Carmel) at 100ft.

Standard practices does allow an OW instructor to line up 8 students on the bottom and escort them one by one to the surface. Telling a certed diver to stay put at 60some feet seems borderline, but if he had a history of ear clearing difficulties I could see them wanting him to stay put.

The buddy system works great with the right people. It's worse than going alone with the wrong people - SOBs (same ocean buddies). These days I'll only dive with friends I believe in, or ones that just finished the official training and need 'finishing.' Otherwise, I'm on my own. It's a option you can choose to take, accepting the risks for the gains.

[Ron 10]

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But my next activity in a foreign country will be in Cayo Largo, Cuba in August, they say it's fantastic for scuba. Wanna join?

I'd love to, but there is this little problem with the US state Department not wanting Americans to spend cash in Cuba....So I might have to pass on that one.

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

[jumperconway 0]

Have you ever been to a concert or sporting event? Look at the back of the ticket. It states that you proceed at your own risk. It will stop 99% of lawsuits where someone slipped on a spilled beer or a weiner but doesn't prevent a lawsuit because anyone can sue for anything if they have the time. Frivolous lawsuits are commonplace these days and until we as a society accept responsibility for our own actions, this will continue. Personally I feel that the lawyers should have to pay double what they seek as retribution for wasting the other party's time as well as the court's time to deal with the idiocy. That said, you can't waiver negligence. Although I don't see negligence in this case, your "buddy" is not responsible for you, he is a safety precaution for your assistance. If the man died from unnatural causes at the hands of one of the others then their should be charges against them not a lawsuit.

[riggerrob 643]

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But my next activity in a foreign country will be in Cayo Largo, Cuba in August, they say it's fantastic for scuba. Wanna join?

I'd love to, but there is this little problem with the US state Department not wanting Americans to spend cash in Cuba....So I might have to pass on that one.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

It is very easy for Americans to visit Cuba. Simply ctach a flight to Montreal or Mexico, then fly direct to Havana or Veradero.
When I vacationed in Cuba in 1991, I saw dozens of American tourists. Snorkelling and scuba diving East of Veradero is fantastic!
Just slip a blank sheet of paper into your passport, so the Cuban Customs officer can stamp it. After you discard that sheet, the US State Department will never know the difference!

[Ron 10]

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It is very easy for Americans to visit Cuba. Simply ctach a flight to Montreal or Mexico, then fly direct to Havana or Veradero.
When I vacationed in Cuba in 1991, I saw dozens of American tourists. Snorkelling and scuba diving East of Veradero is fantastic!
Just slip a blank sheet of paper into your passport, so the Cuban Customs officer can stamp it. After you discard that sheet, the US State Department will never know the difference!

Im not so much about breaking the law.....Ya know if I ever run for President I would hate that "Cubagate" weekend comming back on me.

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

[jumperconway 0]

Im not so much about breaking the law.....Ya know if I ever run for President I would hate that "Cubagate" weekend comming back on me.

Don't worry Ron, you'd never get elected anyway!

[Ron 10]

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Don't worry Ron, you'd never get elected anyway!

Oh, you guys would vote for a president that holds boogies out of the Marine Chopper for free.

"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

[jumperconway 0]

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Don't worry Ron, you'd never get elected anyway!

Oh, you guys would vote for a president that holds boogies out of the Marine Chopper for free.

WE HAVE A WINNER!!!!!!!!

[kelpdiver 2]

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Although I don't see negligence in this case, your "buddy" is not responsible for you, he is a safety precaution for your assistance.

Since this was an instructional dive, the standards of negligence are a bit different. Just as here, we have different standards for AFF students than for those with their cards.

[kelpdiver 2]

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It is very easy for Americans to visit Cuba. Simply ctach a flight to Montreal or Mexico, then fly direct to Havana or Veradero.

It's not too hard, but if it's no joke if you're caught, and for some reason they've really stepped up enforcement. Just a couple years back it looked like the embargo would finally be dropped, but now we're back thanks to our Cuban friends in Miami.

For now it is the place to go for Canadians who want to see few Americans. But Castro can't live forever, can he?

[jumperconway 0]

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Although I don't see negligence in this case, your "buddy" is not responsible for you, he is a safety precaution for your assistance.

Since this was an instructional dive, the standards of negligence are a bit different. Just as here, we have different standards for AFF students than for those with their cards.

OK, fill me in. He's been diving for 20 years!

[Damion 0]

i guess my question would be...what makes the deceased signing a waiver that says, "i wish for my surviving family to not sue" hold water for anything? i would look at it and say, how can someone waive my rights if my son, daughter or loved one died?

[Fast 0]

I have seen some waivers that include provisions for the person partaking in the event to agree to pay any judgement, court fees, and laywer's fees if the company providing the service (the DZ in this case) is sued. That being said, if your family sues over your death your estate would then be responsible to pay the judgement. That would prevent the family from accomplishing the goal of taking any money from the DZ.

(From a lay persons standpoint at least)

~D
Where troubles melt like lemon drops Away above the chimney tops That's where you'll find me.
Swooping is taking one last poke at the bear before escaping it's cave - davelepka

[AndyMan 7]

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I have seen some waivers that include provisions for the person partaking in the event to agree to pay any judgement, court fees, and laywer's fees if the company providing the service (the DZ in this case) is sued.

I've seen clauses like that in a lot of skydiving waivers. Those clauses are not worth the paper they're printed on. Those would be the easiest get set aside.

Too many people in skydiving think that to avoid lawsuits they need a really good waiver. I disagree. I think ways will always be found around all waivers, eventually. The best way to avoid being sued is to do everything in your power so that people enjoy the sport without dieing. This is especially true for students.

_Am

__

You put the fun in "funnel" - craichead.

[kelpdiver 2]

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Since this was an instructional dive, the standards of negligence are a bit different. Just as here, we have different standards for AFF students than for those with their cards.

OK, fill me in. He's been diving for 20 years!

He's still a student in a class, just not the initial one. He has an instructor, not a buddy.

And knowing only that he first dove in 1984 doesn't mean too much. Not enough information (currency, last dive, where was experience) from a newspaper article, a source that can never be trusted when it comes to [sky]diving accidents. Lots of not very current divers take the "Advanced" course as a refresher.

Given the whole story, I don't know that I would judge it any differently, but I do hold instructors to a higher duty of care than I would a random person on the beach. Anyone trained short of Rescue Diver is suspect until proven otherwise.

[lawrocket 3]

Time to focus this discussion a bit:

The ruling had NOTHING to do with whether the dive center was negligent. ltdiver had it correct - the ruling only gave survivors the right to sue. Any discussions regarding the negligence of the company are nice and informative, but not at all implicated by this decision. Assumption of risk and comparative fault and contributory negligence would PROBABLY be available as a defense.

Quade also was dead-on. This ruling only affects Pennsylvania. For the time being. Other courts in different states may look to the ruling for guidance and approach it in the same way.

I'll admit it seems to be a novel issue in terms of recreational sports. I can actually see this developing further, though other courts adopting the reasoning will take years.

While the injured but alive skydiver cannot sue, perhaps his wife can sue for loss of consortium. It is possible under the apparent reasoning (I say that because I did not read the court opinion).

Interestting approach, it is...

My wife is hotter than your wife.

[Fast 0]

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I have seen some waivers that include provisions for the person partaking in the event to agree to pay any judgement, court fees, and laywer's fees if the company providing the service (the DZ in this case) is sued.

I've seen clauses like that in a lot of skydiving waivers. Those clauses are not worth the paper they're printed on. Those would be the easiest get set aside.

Too many people in skydiving think that to avoid lawsuits they need a really good waiver. I disagree. I think ways will always be found around all waivers, eventually. The best way to avoid being sued is to do everything in your power so that people enjoy the sport without dieing. This is especially true for students.

_Am

I agree with what your saying, in no means was i trying to imply that we merely ought to be looking for ways to avoid being sued. It still doesn't mean that we don't have to worry some about our fav. dropzone or even all of them going out of business because of lawsuits that comes from the emotion of dealing with injury and death.

~D
Where troubles melt like lemon drops Away above the chimney tops That's where you'll find me.
Swooping is taking one last poke at the bear before escaping it's cave - davelepka

[ltdiver 3]

Conway,

Thanks for your reply.

I guess people on this thread didn't understand my original post. I realize that the waiver does -not- prevent people from suing. I know that is helps deter it, sometimes not successfully, though.

It is common knowledge that once someone sues and loses, that they have the right to appeal the verdict.

My question in posting this 'notice' of the Pennsylvania tragedy...and New Jersey lawsuit was....what was new news in all of this?

To me, and other instructors who are faced with this fact every time we take someone up, any hiccup in the skydive that is deemed by the wuffo's as unusual can open up a can of worms that nobody wants to eat.

ltdiver

Don't tell me the sky's the limit when there are footprints on the moon

[jdfreefly 1]

I know I am going a little off topic but others have already done it...so I am going to as well.

People keep trying to give a skydiving scenario that is comprable but you can't because in skydiving you can't get back in the airplane once you get out. In scuba, you can cut the dive short and head to the surface.

Here is a scenario for the dive:
The student is having a freak out. A REAL FREAK OUT. The kind where The first instructor communicates to the second that he would like some help getting this dude back to the surface.

The second instructor signals to the other diver that they are ALL 4 going back to the surface. The uncurrent diver refuses and signals for them to go and leave him behind. As best they can they attempt an underwatter argument. The second instructor doesn't like it, but with a freaking out newbie he doesn't have much of a choice but to leave his buddy behind and assist the other instructor.

The now solo diver gets himself in trouble and dies.

In this scenario, I don't think I would find the instructors negligent unless the makeup of the dive, 2 instuctors, 1 student and 1 uncurrent diver, breaks some rule in scuba instruction that I am unaware of. I admit, this is complete speculation on my part, but after reading the story about the incident, it was the most likely scenario I could come up with. Why would both instructors go with the troubled student unless there was some bigger issue than the article gives us?

I don't see how you could apply a scenario like that to skydiving.

Methane Freefly - got stink?

[lawrocket 3]

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what was new news in all of this?

What is new about this is a new legal theory. Anybody can sue on anything. It doesn't mean you'll recover. The waiver contracts actually operate as an affirmative defense. What this means is that when a complaint is filed in court, the defendant can take the contract and prove that the risk was assumed and that the plaintiff knowingly waived any negligence claims.

What is new about this is that it appears to state (I say that because I did not read it) that this affirmative defense is not available as to the heirs or others - only to the person waiving it. It's a concept called "privity" which is where only certain people are designed to be beneficiaries of a contract.

So, this is an extension of law. It's pretty new, and I'm pretty surprised that nobody's thought of it before. Goodness, it seems like a pretty simple application of pretty simple law in a simple way nobody thought of before.

My wife is hotter than your wife.

[ltdiver 3]

Thanks, Jerry. I was hoping you would reply.

So, our waiver doesn't cover us from family members if the student bounces. Interesting.

ltdiver

Don't tell me the sky's the limit when there are footprints on the moon

[mdwhalen 0]

I am a trial lawyer in Florida and have helped several DZ's and other people in the skydiving industry draft or revise their releases. The opinion as reported in the newspaper is a very significant development in tort law and while it is only binding in that state (I'm a little confused whether the story is from PA or NJ) could be followed by other jurisdictions. I preface all this on the somewhat questionable assumption that the newspaper got the opinion right.

Releases offer DZs and others working in the skydiving industry some comfort that they will not be sued when something goes wrong. I know of several instances here in Florida where an injured jumper shopped his case to plaintiffs' lawfirms without success once the firms had seen the DZ's release. Lawsuits cost money to prosecute and most attorneys are not interested in pursuing a case in the face of a valid release.

The fact is that under the ruling of this appellate court a DZ or instructor could not be confident that they would not be sued in the event of a fatality. I am an AFF instructor and should this become the law here in Florida I would most definitely and sadly give up my rating and go back to videos and fun jumps only.

The USPA needs to be proactive with other groups in addressing this troubling development.

"I have magic buttons ;)." skymama

[ltdiver 3]

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(I'm a little confused whether the story is from PA or NJ)

I was, too, until I read this article. Looks like it was a Pennsylvania death prosecuted in a New Jersey court room.

At least that is what this article infers.

Also, this is very interesting and perhaps why a new ruling was implemented. Look who was the deceased:

"Justice Jose L. Fuentes, writing for the three-judge panel, in the case of the late Assistant Essex County Prosecutor Eugene J. Pietroluongo, 44, of Orange, who died in a scuba diving accident in Pennsylvania in 2001, ruled that Pietroluongo's 13-year-old daughter had the right to sue the Regency Diving Center in Millburn."

ltdiver

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N.J. Court Allows Wrongful Death Suit Despite Waiver


April 14, 2004


A New Jersey Appeals Court has ruled that a waiver signed by participants in high risk sports activities does not prevent relatives from pursuing a wrongful death suit when the sports enthusiast is killed.


It is common for instructional facilities for scuba diving, skydiving and similar risky activities to ask participants to sign waivers shielding them from lawsuits if injury or death results.


A state appeals court has declared those release forms do not bar relatives from filing a wrongful death lawsuit.


Justice Jose L. Fuentes, writing for the three-judge panel, in the case of the late Assistant Essex County Prosecutor Eugene J. Pietroluongo, 44, of Orange, who died in a scuba diving accident in Pennsylvania in 2001, ruled that Pietroluongo's 13-year-old daughter had the right to sue the Regency Diving Center in Millburn.


The court said that a waiver "like any contract, can only bind the individuals who signed it." Thus it could not deprive his survivors of their rights to bring a wrongful death lawsuit.


"We now hold that a release signed by decedent with the express purpose of barring his potential heirs from instituting a wrongful death action in the event of his death in connection with his underwater diving activities did not legally extinguish the potential heirs' rights to prosecute their statutorily authorized cause of action. Such exculpatory agreement is unenforceable and void as against public policy when it is invoked to preclude decedent's heirs from prosecuting a wrongful death action," Fuentes wrote.


After citing several statutory impediments to the defendant's claims, the court noted that it is well settled that a person's heirs are not defined until the time of his or her death. This fundamental tenet of the law of wills and estates is best expressed by the ancient maxim nemo est haeres viventis, "[n]o one can be heir during the life of his ancestor." It is therefore legally impossible for an exculpatory agreement to bar the legal claims of a class of litigants that were not legally in existence at the time of its execution.


"From these legal principles we conclude that decedent did not have the legal authority to bargain away his heirs' statutory rights to institute a wrongful death action in exchange for the privilege of having defendants provide him with scuba diving instructions. To hold otherwise would directly undermine the legislative policy established by the Wrongful Death Act."


The case is Bonnie Gershon, et al. V. Regency Driving Center, Inc., et al.

edited to include the news article, as it seems that the first one in no longer on-line...and didn't want this one to go "POOF", too..

Don't tell me the sky's the limit when there are footprints on the moon