Texas Small Business Law Blog - Anderson Simmons P.C. - Austin Texas Litigation, Business and Real Estate Attorney

The dive community expects a diver to aid or rescue his buddy if it can be done without unreasonably risking the diver's own safety, but is this a legal duty?

Does A Dive Buddy Owe A Legal Duty To Rescue His Buddy?

Recreational scuba divers are taught to always dive with a buddy for safety. A dive buddy is another scuba diver who presumably will stay nearby throughout the dive and be there at the diver’s side to help in the event of an equipment failure or other problem. Within the limits of a diver’s training and ability, it is also assumed the dive buddy will attempt to aid or rescue the other diver in the event of an emergency. Rescue techniques are the focus of numerous recreational diving courses, starting with the basic open water class, in which divers learn how to share their air supply with an out-of-air buddy, through more advanced courses devoted entirely to the subject of rescuing divers, whether they are buddies or strangers.

The entire system of recreational diving seems to be based on the assumption that a diver will come to the aid and rescue of his buddy. But what if a diver bails out on his buddy? Can a diver whose failure to aid his buddy contributes to the buddy’s death or injury be held legally responsible under Texas law?

The answer depends upon whether being a dive buddy constitutes a “special relationship” under Texas law. And the answer is not clear under the law. I would argue, however, that in general, no such legal duty should exist. The duty should be a moral duty, not a legal duty. There may be special factual circumstances in which a special relationship should be imposed on dive buddies, but in general, to do so would cause more harm than good to the sport and its safety.

Legal Analysis

Texas law imposes no general duty to come to the rescue of others who, through no fault of the would-be rescuer, are found to be in peril. For example, a motorist who happens to witnesses a pedestrian having a heart attack on the sidewalk is under no legal duty to stop and provide assistance. See Howell v. City Towing Associates, 717 S.W.2d 729, 733-34 (Tex. App. – San Antonio 1986, writ ref. n.r.e.), citing Section 314A of the Restatement (Second) of Torts.

This is true even if the person realizes that action is necessary on his part for another’s aid or protection, see Section 314A of the Restatement (Second) of Torts. The Restatement gives an illustration of a strong swimmer who sees another swimmer floundering in deep water and obviously unable to swim. The strong swimmer is under no duty to rescue, because the other swimmer has fallen into peril through no conduct of the strong swimmer. It would not even matter if the strong swimmer hated the other swimmer and failed to rescue him for that reason. If there is no duty to rescue, the reason for failing to rescue is irrelevant. Id.

Thus, it should be clear under Texas law that one diver does not owe a duty to rescue some other distressed diver who he happens to come upon who is not his buddy.

But the analysis does not end there. An exception to the no-duty-to-rescue doctrine is when there is a special relationship between the victim and would-be rescuer. See Howell v. City Towing Associates, 717 S.W.2d 729, 733-34 (Tex. App. – San Antonio 1986, writ ref. n.r.e.). A legal duty to provide aid to others can imposed by certain special relationships, such as the relationship between a common carrier and passenger, employer-employee, doctor-patient, attorney-client, parent-child, hirer-independent contractor, and parties to a contract. A person who fails to meet this duty can be sued for negligence if his failure causes harm to the other person.

In Howell, the court found that a tow truck operator had a legal duty to provide aid to a passenger whose car he was towing, because by transporting the passenger, he was acting as common-carrier, which is one of the special relationships recognized by the law. The court held the tow truck company could be sued for the driver’s failure to take the passenger to the nearest hospital when he suffered a heart attack while riding in the tow truck. Howell, 717 S.W.2d at 733-34. In other words, the tow truck driver had a duty to rescue his passenger because the tow truck was a common carrier.

So, we know if dive buddies have a special relationship, there is a duty to rescue. There are, however, no reported Texas decisions deciding whether the relationship between dive buddies constitutes a special relationship.

If this issue is ever presented to a Texas court, it will have to apply a risk versus utility test to determine if a special relationship exists. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). The court must balance several interrelated factors. It must weigh the risk, foreseeability, and likelihood of injury against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Id. Another factor is whether one party had superior knowledge of the risk or a right to control the actor who caused the harm. Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993).

Factors such as risk, foreseeability and the likelihood of injury weigh in favor of imposing a special relationship. The risks of failing to aid a dive buddy include serious injury or death, the serious injury or death is foreseeable, and the likelihood of injury or death from failing to aid or rescue is great. For example, a diver who refused his buddy to share air with a buddy who signaled he was out of air is surely aware that his refusal is risking his buddy’s death.

In contrast, factors such as the magnitude of the burden of guarding against injury and the consequences of placing the burden on the rescuer weigh against finding a special relationship. While some aid or rescue situations impose no real burden, other rescue situations, like that of a diver in panic, can place the would-be rescuer in real danger. Likewise, racing after a buddy who had descended too deeply, in an effort to stop his further ascent, can surely risk killing both divers.

The consequence of imposing a special relationship on dive buddies could be to discourage the practice of dive buddies altogether, which would destroy much of the camaraderie and social nature of the sport. Typically, in dive clubs and on dive boats, divers will readily pair up with other divers in order to form buddy groups as well as to be sociable. Fear of lawsuits could only discourage divers from being buddies, and would make it more difficult for less experienced or capable divers from finding a buddy at all.

The imposition of special relationship liability on dive buddies would tend to chill the social aspect and make it harder for divers to find buddies. This would tend to encourage more solo diving, which is regarded as an unsafe practice for most recreational divers, who lack the necessary experience, training and redundant equipment for solo diving.

Granted, fear of lawsuits might also discourage the practice of “same ocean” dive buddies. These are dive buddies who make no effort to stay near and monitor their buddy, and whose “same ocean” proximity defeats any real safety value. Imposing legal liability on such buddies might result in a small incremental improvement in dive safety, but the chilling effect on the social nature of the sport would outweigh this small incremental improvement.

The factor of superior knowledge is the one that poses the biggest dilemma. On the one hand, an experienced dive buddy would seem to owe a duty to look after the less experienced buddy. Indeed, in many recreational diving situations, inexperienced divers will be teamed with an experienced diver just for this reason, and worried family members on shore may even be counting on the experienced diver to keep a close eye on the inexperienced diver. In such circumstances, to abandon the inexperienced diver in a crisis would be reprehensible. On the other hand, imposing a special relationship simply because one diver was more experienced would tend to discourage experienced divers from taking the less experienced divers under their wings. That would reduce the overall safety of the sport and make the journey from inexperienced to experienced diver a more perilous and lonely journey.

There is one “buddy” situation in which the law is clear. Under both statutory law and the “marine rescue doctrine,” a diver who is also the operator or captain of a boat owes a duty to provide aid to a buddy who falls overboard or who is otherwise injured in a collision or casualty, if he can do so without serious danger to his vessel, crew or other passengers. Tex. Parks and Wildlife Code § 31.104; Ricardo N, Inc. v. de Argueta, 907 S.W.2d 423 (Tex. 1994). But this duty arises out of the diver’s status as a boat operator, and not out of his status as a dive buddy.

In conclusion, there is currently no answer to this question under Texas law. Should the question arise, the outcome will probably depend heavily on the facts of the case.

Every diver has signed them, and every instructor, dive shop and dive boat requires them. But are scuba diving releases really enforceable in Texas?

Introduction

Anyone who has taken a scuba diving class or has been diving on a commercial dive boat in the past several decades probably signed a liability release or waiver as a condition of participation. But are they enforceable in Texas?

If done properly, scuba diving liability releases can limit a dive professional’s exposure to liability. Whether a release will be enforceable in any given case will depend on the facts and circumstances surrounding the execution of the release as well as the language and format of the release.

Why is A Release Even Necessary?

Why is a release even necessary? Isn’t assumption of the risk of injury or death implied from a diver’s voluntarily participation in a “risky” sport like scuba diving? Answer: No. Once upon a time, anyone who voluntarily participated in a supposedly risky or dangerous activity such as scuba diving “assumed the risk” of injury or death and was therefore precluded from holding other people responsible for his or her injuries, but this is no longer the law. This is no longer the law. See Farley v. M.M. Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975). The express-negligence doctrine now requires that assumption of the risk be expressed in a written agreement between the parties. See Dresser Industries v. Page Petroleum, 853 S.W.2d 505, 507-08 (Tex. 1993.)

Assumption of the risk is still implied in some competitive contact sports like polo, see Connell v. Payne, 814 S.W.2d 486, 488 (Tex. App.—Dallas 1991, writ denied.) Assumption of the risk even applies to sports like golf, though golf it is not considered to be a contact sport in the same manner as polo or football. But as the court explained with regard to golf in Hathaway v. Tascosa County Club, 846 S.W.2d 614 (Tex. App.—Amarillo 1993, no writ), “[a]cts that would be negligent if performed on a city street or in a backyard are not negligent in the context of a game where a risk of inadvertent harm is built into the sport.” Id. at 616-17. In such sports, to have a case, the injured player must prove that the defendants acted recklessly or intentionally and not just carelessly or negligently. This is usually difficult to prove.

Texas courts have consistently refused to extend this implied assumption of the risk to non-contact sports like parasailing, see Bangert v. Shaffner, 848 S.W.2d 353, 356 (Tex.App.—Austin 1993, writ denied) and scuba diving; see Newman v. Tropical Visions, Inc., 891 S.W.2d 713 (Tex.App.—San Antonio 1994, writ denied.) While it may surprise the reader that assumption of the risk still applies to “safe” sports like golf but not to “dangerous” sports like scuba diving, the deciding factor is not whether the sport is “dangerous,” but rather, whether the game carries an inherent risk of injury from competitive contact by the other players. Golf may be a gentleman’s sport, but the risk of hitting another golfer with a ball is inherent, and to impose liability on golfers for slicing would destroy the game. The inherent risks in scuba, in contrast, do not come from competitive contact with other divers and it would not destroy the sport to impose liability for diving injuries caused by negligent instruction or dive boat activities.

So we see that a written release is necessary. But how do we know if a release will be enforceable?

The Only Texas Scuba Case: Newman v. Tropical Visions, Inc.

The question of the enforceability of a liability release in scuba diving has only been decided once by a Texas court of appeals. Newman v. Tropical Visions, Inc., 891 S.W.2d 713 (Tex. App.—San Antonio 1994, writ denied) was a lawsuit filed in Bexar County, Texas against a San Antonio dive shop and a scuba instructor. The lawsuit was filed by the family of a woman, age 65, who died while completing open water scuba certification course taught by the defendants at Lake Travis, Texas on May 6, 1990. The opinion does not discuss any of the details of the accident. The family alleged negligence, gross negligence and violation of the Texas Deceptive Trade Practices Act.

While there is no mention of the accident details, the court decision notes some very important pre-accident facts. One fact is that prior to her first class, the diver signed a PADI (Professional Association of Diving Instructors) “Affirmation and Liability Release,” along with an enrollment application, a “Statement of Understanding for Skin and Scuba Diving,” a medical statement, and a “Standard Safe Diving Practices Statement of Understanding.” Another fact was that the instructor went over these forms with his students, no student was compelled to sign them, and students could have received a refund if they chose not to participate by not signing the form.

The signed and completed “Affirmation and Liability Release” read:

“PADI AFFIRMATION AND LIABILITY RELEASE (read carefully before signing)

I, (1) Jean Newman, hereby affirm that I have been well advised and thoroughly informed of the inherent hazards of skin and scuba diving.

Further, I understand that diving with compressed air involves certain risks, and injuries can occur that require treatment in a recompression chamber. I further understand that the open water diving trips, which are necessary for training and for certification, may be conducted at a site that is remote, either by time or distance or both, from such a recompression chamber, and nonetheless agree to proceed with such instructional dives. I hereby personally assume all risk in connection with said course for any harm injury, or damage that may befall me as a result of my participation in the course, whether foreseen or unforeseen, and I still wish to proceed with the course in spite of the possible absence of a recompression chamber in proximity of the site. I understand and agree that neither (2) Tropical Divers /Bob Lake located in the city of (3) SAT [sic] and state of Tx may be held liable in any way for any occurrence with this diving class that may result in injury, death, or other damages to me or my family, heirs, or assigns, and in consideration of being allowed to enroll in this course, I hereby personally assume all risks in connection with said course, for any harm, injury or damage that may befall me while I am enrolled as a student of the course, including all risks connected with therewith, whether foreseen or unforeseen; and further to save and hold harmless said program and persons from any claim by me, or my family, estate, heirs, or assigns, arising out of my enrollment and participation in this course.

I further state that I am of lawful age and legally competent to sign this affirmation and release, or that I have acquired the written consent of my parents or guardians; that I understand the terms herein are contractual and not a mere recital; and that I have signed this document of my own free act.

It is the intention of (1) Jean Newman by this instrument to exempt and release (2) Tropical Divers/Bob Lake from all liability whatsoever for personal injury, property damage or wrongful death caused by negligence.

I HAVE FULLY INFORMED MYSELF OF THE CONTENTS OF THIS AFFIRMATION AND RELEASE BY READING IT BEFORE I SIGNED IT.”

Beneath this last line appeared Ms. Newman’s signature, address and age.

After the lawsuit was filed, the dive shop and instructor filed a motion for summary judgment. A motion for summary judgment is a procedure used by defendants to dismiss a case without the necessity of a trial. Normally, it is the role of a jury to decide the facts and determine the amount of damages owed, if any, but if the undisputed facts show that the defendants are not liable under the law, the judge can dismiss the case without a trial by granting a motion for summary judgment.

The defendants based their motion upon two affirmative defenses: (1) release; and (2) consent/express assumption of the risk. By raising these affirmative defenses, the defendants claimed that even if the allegations against them were taken as true, the release signed by the diver absolved them of any legal liability for her death.

The trial court granted the defendants’ motion and dismissed the case, and the plaintiffs filed an appeal to the San Antonio Court of Appeals and raised nine legal challenges to the summary judgment. While an analysis of every point would be beyond the interest of divers, there are some valuable lessons to be learned from this case. The court of appeals did find the release was enforceable, but it is important to understand how and why the court reached this decision.

The Circumstances Of The Release Are Important

In Newman v. Tropical Visions, Inc., one of the challenges raised by the plaintiffs on appeal concerned the circumstances surrounding the signing of the release. For a release to be valid, the person signing it must do so under circumstances in which it is voluntary, without duress, and the diver must clearly understand that what she is signing is a release of liability for injury or death. This reality is recognized in PADI’s own literature. “Courts often examine the circumstances in which a release is signed to determine whether the signer understood the contents and consequences of the release.” The Law and The Diving Professional, by E. Steven Coren, J.D., PADI 1995, page 57.

To prove the circumstances in Newman v. Tropical Visions, Inc., the defendants’ motion for summary judgment included an affidavit from the instructor, in which he testified that each of the students was given the release to inspect and sign, read and understood the release, and was given the opportunity to ask questions about the release. He also testified that the students were not forced to sign the release. Any student who was unwilling to sign the release would not be able to participate but could obtain a refund.

The plaintiffs challenged the fairness of allowing this affidavit as summary judgment evidence, because the diver had died and was therefore not available to contradict the instructor’s testimony. The court rejected this challenge, however, because the other students were still available, yet the plaintiffs did not present any testimony from the other students to contradict the instructor’s statement.

Thus, we see that it is important for dive professional to do more than just collect signed releases. The dive professional should inform the students that they are being asked to sign an important legal document that is intended to release the dive shop and instructor from liability for injuries, even if those injuries are caused by the negligence of the dive shop or instructor. The dive professional should “not belittle the nature of the release or give the students the impression that it is merely one more piece of insignificant paperwork.” The Law and The Diving Professional, by E. Steven Coren, J.D., PADI 1995, page 57.

The dive professional should give the divers an opportunity to read the release and ask questions about it before they sign it. And this procedure should be conducted in a group setting, so that there will be witnesses to it. If there are no witnesses, then testimony about the circumstances may be just the dive professional’s word against that of the injured diver, and in the case of a deceased diver, may not be admissible in a summary judgment proceeding.

One caveat, however, is that the dive professional should not go so far as to attempt to interpret or explain the legal effect or consequences of the release. Doing so could result in the student misunderstanding the nature of a release. Id. Does this sound like a contradiction? The dive professional walks a fine line. It must be made clear that the divers are signing a liability release, and the dive professional should be willing to answer questions, but if the questions call for legal opinion or interpretations, the instructor should inform the students he cannot give them any legal advice. It is the dive professional’s duty to inform the divers as to what they are signing, but it is not his duty to provide legal opinions.

Another lesson to draw from this case is the issue of refund. The court in Newman noted that divers could obtain a refund if they were unwilling to sign the release. Though the court did not elaborate on this aspect, it is significant because a release must be voluntary to be enforceable. Offering a refund to a diver who is unwilling to sign a release helps eliminate the ability of the diver to later claim that he did not voluntarily sign the release.

Many Texas dive boats operators do not ask the diver to sign and furnish a release until after the diver has already paid the local dive shop, taken time off from work, driven hundreds of miles down to the gulf where boat is located, and is walking aboard the boat with his scuba gear. It could be argued that a release signed under these circumstances is too late and has become less than fully voluntary. At this point, the diver has already made a substantial investment in time, money and emotional commitment to the dive and would forfeit all of these things if he refused to sign. Most divers know in advance that they will be asked to sign such a release, which may undermine the argument, but it is still not a best practice. Divers should be required to sign a release before they make their investment in the dive trip. While it may annoy customers, it would not hurt to require the diver to sign the same release again before they board the boat, so that divers cannot claim they had forgotten about the previous release they had signed at the time of the reservation.

The PADI Release Is Found To Be Clear

To be enforceable, the liability release form must clearly show its intention to release the dive shop and instructor from any liability for injuries or death cause by their negligence.

In Newman v. Tropical Visions, Inc., the plaintiffs argued on appeal that the PADI release did not clearly state that the diver was assuming the risks of diving. The court of appeals disagreed. While the form did not use the precise words “assumption of the risk,” the court held “[i]t would be difficult to imagine language more clearly designed to put a layperson on notice of its legal significance and effect. We therefore hold that under the agreement Newman effectively assumed all of the risks of any injury she might suffer as a result of the defendants’ negligence during the scuba training course.” Id, 891 S.W.2d at 719.

Before one concludes that the PADI form is bullet proof, however, it should be noted that several potential challenges to the release in Newman v. Tropical Visions, Inc., were not considered by the court because the plaintiffs’ attorney did not raise the challenges until the case reached the court of appeals, which was too late. But other plaintiffs in other cases are still free to raise these challenges. These are discussed below.

Fair Notice Requirement

Texas courts traditionally have disapproved of parties avoiding liability for harm caused by their actions, so courts have strictly construed liability releases to prevent parties from avoiding liability by vague, deceptive or confusing releases. Ethyl Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 708 (Tex. 1987). Thus, the Texas courts require that a liability release must give fair notice in order to be valid. Fair notice consists of meeting two requirements: (1) the express negligence doctrine; and (2) conspicuousness. See Enserch Corp. v. Parker, 794 S.W.2d 2, 8 (Tex. 1990.)

The express negligence doctrine requires the intent to release a party from its own negligence be stated within the release, and it specifically requires that word “negligence” be used in the release. See Victoria Bank & Trust Co. v. Brady, 811 S.W2d 931, 938 (Tex. 1991).

The conspicuousness requirement mandates that the release use clear and unequivocal language, so that a reasonable person would notice that the form they are signing is releasing the other party of negligence. See K&S Oil Well Serv., Inc. v. Cabot Corp., 491 S.W.2d 733, 737-38 (Tex.Civ.App.—Corpus Christi, writ ref’d n.r.e.). This requirement can be met by using bold print, capital letters, larger print or red ink to highlight and contrast the portion of the release that contains the release language. See Enserch Corp. v. Parker, 794 S.W.2d 2, 8 (Tex. 1990). In contrast, putting the release language on the back side of a contract or in fine print will not meet this requirement.

The Newman case did not determine if PADI’s release form met either of these requirements because these issues were waived on procedural grounds. The PADI form probably would meet the express negligence requirement, because the form specifically mentions “negligence” and was otherwise clear about its intentions.

On the other hand, it does not appear that the PADI release utilized any conspicuous print except in the last sentence, which stated “I HAVE FULLY INFORMED MYSELF OF THE CONTENTS OF THIS AFFIRMATION AND RELEASE BY READING IT BEFORE I SIGNED IT.” While this last sentence is conspicuous, it does not contain the key language concerning the release of liability from negligence. It is the key language that must be conspicuous. This last sentence is a useful sentence, but it is not the key part of a liability release. The PADI release form that was the subject of the Newman case therefore did not met the conspicuousness requirement.

By contrast, the current PADI release forms contain the following key language in large capital letters that stand in contrast to the rest of the form: “I, __________, BY THIS INSTRUMENT AGREE TO EXEMPT AND RELEASE MY INSTRUCTORS, ___________, THE FACILITY THROUGH WHICH I RECEIVE MY INSTRUCTION, _________________ AND INTERNATIONAL PADI, INC., AND ALL RELATED ENTITIES AS DEFINED ABOVE, FROM ALL LIABILITY OR RESPONSIBILITY WHATSOEVER FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH HOWEVER CAUSED, INCLUDING BUT NOT LIMITED TO THE NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE.”

This current PADI form would appear to meet the conspicuousness requirement, as well as the express negligence doctrine. On the other hand, the average do-it-yourself release used by some small dive boat operations do not meet these requirements. They tend to lack bold print, capital letters or other appropriate forms of highlighting the key language in the release, and in their desire to avoid legalese, forget to mention “negligence” as required by the express negligence doctrine.

Gross Negligence

We have now seen that a clearly written liability release that meets the fair notice requirements can be effective against negligence claims. But what about gross negligence? Will a release also be effective against claims of gross negligence? In Newman, the court held that it was, but this is questionable precedent.

Put in the simplest terms, negligence is carelessness. Negligence is the basis for most personal injury and wrongful death claims. Gross negligence, by contrast, is more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire lack of care as to be conscious indifference to the rights, safety or welfare of others. Typically, gross negligence is alleged in a personal injury or wrongful death lawsuit, if at all, only as the basis for awarding punitive damages. Gross negligence is difficult to prove, and contrary to the impression given by sensational jury verdicts, punitive damages awards are relatively rare.

The difficulty of proving gross negligence does not stop plaintiff attorneys from alleging it. Indeed, it is almost a given that a plaintiff lawyer in Texas will allege gross negligence in a scuba diving case, if for no other reason than to get around a liability release.

In Newman, the plaintiffs alleged gross negligence and argued on appeal that a release which exempts a party from its own gross negligence is against public policy and is therefore invalid. The plaintiffs relied on Smith v. Golden Triangle Raceway, 708 S.W.2d 574 (Tex.App.—Beaumont 1986, no writ.) In Smith, the plaintiff was injured while in the pit area of a raceway. The plaintiff had signed a liability release in order to gain access to the pit area. The trial court granted a motion for summary judgment based on this release. The court of appeals found that the release was clear and valid as to the negligence claims, but remanded the case for trial on the gross negligence claims. Following the examples of numerous other states, the court held the release was against public policy and was unenforceable against gross negligence claims.

In Newman, the majority opinion altogether side stepped the public policy issue. Instead, the majority held that because the release prevented the plaintiffs from recovering any actual damages on their ordinary negligence claim, the plaintiffs therefore could not recover any punitive damages for gross negligence. The majority based its reasoning on the general rule that there must be an award of actual damages before there can be any award for punitive damages. Newman v. Tropical Visions, Inc., 891 S.W.2d at 722. One of the justices dissented, arguing that as long as the plaintiff has suffered actual damages, the fact that the damages are not recoverable due to a release does not preclude recovery under a claim for gross negligence. Id. at 725.

It is difficult to reconcile this aspect of the majority opinion in Newman with other Texas decisions, including subsequent Texas Supreme Court decisions. In particular, in Memorial Medical Center of East Texas v. Keszler, 943 S.W.2d 433, 435 (Tex. 1997), the Texas Supreme Court acknowledged the public policy argument in Smith v. Golden Triangle Raceway and appeared to be in accord with it. Likewise, the Court upheld an electric utility company’s rate plan, which acted similar to a release by limiting its liability for negligence, specifically because the plan did not go so far as to preclude claims based on gross negligence. Southwestern Electric Power Co. v. Grant, 73 S.W.3d 211, 220 (Tex. 2002).

Newman is at odds with these cases but has never been overturned. The law is therefore unclear, and dive professionals should not assume that a release will protect them from gross negligence claims.

Conclusion

The Newman case shows that releases can defeat a negligence claim against the dive shop and instructors who are named in the release. In particular, the releases will work if they are backed up by evidence of the proper circumstances in which the releases were obtained.

To be enforceable, the release must be clearly written. It must be clear that by signing the document, the diver is expressly assuming the risks associated with scuba diving. It must be clear that the document is intended to release the named parties from liability for injuries incurred while scuba diving. It must give fair notice by meeting both the express negligence doctrine and the conspicuousness requirement.

Though it is not entirely clear, even if the release meets all of these requirements, it probably will not work against claims of gross negligence. Though the release worked against a gross negligence claim in Newman, the release of gross negligence is generally against public policy and is at odds with other Texas appellate court opinions.

Given the difficulty of proving gross negligence, the existence of a good, valid liability release may discourage many lawyers from taking such cases, even if the release is ineffective as to gross negligence. If a claim or lawsuit is brought, a valid release of the negligence claims certainly makes the average case easier to defend, may substantially drive down the cost of settlement, or may provide the grounds for a summary judgment. For all of these reasons, a well written and properly executed liability release is an essential part of legal protection for the dive professional in Texas.

Do Divers Owe A Legal Duty To Rescue Their Dive Buddies?

Are Scuba Diving Liability Releases Enforceable In Texas?

Recent Posts

Categories

Archives

Subscribe