In a recent case, a man whose wife drowned while scuba diving in 2010 appealed the court’s granting of summary judgment in favor of the recreational diving operation Key Dives. The wife had drowned at the start of an advanced open water dive to an underwater wreck.
It was Key Dives’ practice to require customers to sign a release before a day’s dive. The man and his wife signed these releases in favor of Key Dives on previous dives. On the morning of the fatal dive, the couple was late in arriving. They did not sign the release for that day’s dive. It was a dive for which dive industry standards dictated a particular type of release was to be used.
On the morning of the dive, the woman was worried about diving for unknown reasons. Ocean swells were between 4-5 feet. The husband went in first and his wife followed. After going down about 10 feet, she signaled she wanted to come back to the surface. She tried to board the boat but lost her grip and drifted off. An alarm was sounded, but she was found drowned.
The couple were Arizona residents and had gotten their initial PADI certification in Arizona. Their certification was shortly before their first Florida dives. The signed waiver covered a period of four days. The wife had also initialed a provision on the reverse side of the form in 2009, indicating the release was valid for one year from the signature date.
There was no evidence indicating whether the couple contemplated the 2010 open water dive. On later release forms, she had signed the form but had not initialed the provision that it would be valid for a year.
The releases for the dive in question were different. They included references to extra hazards not listed in the 2009 release and had spaces to fill in a diver’s accident insurance information. The parties agreed that the instructor wanted the couple to sign the release but didn’t have them sign because they were 20 minutes late.
The plaintiff’s wrongful death action proceeded to the defendants’ motion for summary judgment. The trial court granted the motion in favor of the defendant based on the language of the 2009 release and the one-year provision on the back of the form.
The plaintiff appealed. The appellate court explained that the exculpatory provisions in the releases were disfavored and were to be narrowly construed. It also noted that a pre-printed release had a different scope, level of risk, and cost than a deep-water cave dive.
The appellate court reasoned that the analysis in this case turned on the ambiguity in certain terms, including the term “activity” in the exculpatory clause. The court explained that the signed releases could have been slightly modified to be clear and unequivocal by using words so transparent an ordinary person would know what rights he was contracting away. In this case ,the words were not clear and unequivocal. Accordingly, the appellate court reversed the final summary judgment.
If you have been hurt due to another person’s or entity’s negligence or intentionally wrongful conduct, contact the experienced Florida personal injury attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.
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