If you have been enthralled by the exciting reality drama portrayed during the 30th Anniversary of Shark Week, you may decide to finally pull the trigger on that vacation to the Florida Keys or the Bahamas, not to just soak up the sun all day on the beach, but to experience your very own shark cage dive. Before you dive down with the big fish, perhaps now is a good time to discuss that liability waiver you will undoubtedly be told to sign before proceeding with your deep sea dive.
Liability waivers are frequently encountered by many of us who enjoy recreational activities that carry any modicum of risk. Before you can become a member of the cool new gym that just opened up, you’ll need to sign a waiver. Before your kids can attend their friend’s birthday party at the trampoline park, you will undoubtedly be presented with a liability waiver. And before you can get in that shark cage and plunge into the ocean to see the great whites up close, you will definitely be required to sign a liability waiver.
Oddly enough, even though liability waivers have become so common for many of us, I still hear people say, “Oh, it doesn’t matter though. These aren’t really enforceable.” Really? You may want to reconsider whether a court will really ignore the liability waiver you just signed if you do actually get hurt enjoying that recreational activity.
Generally, a waiver of liability is enforceable and will prevent an injured person’s ability to recover in a personal injury action if it meets a three-part test. First, in order for the waiver to be enforced, the language of the release must be clear and unequivocal to protect a business from liability. The waiver will meet this requirement if it expressly states that it releases the business from any liability for injury resulting from the negligence of the business. Next, the waiver must not be unconscionable. Courts have explained that if you had a choice in whether or not you wanted to partake in the activity, then the release is not unconscionable. The last element that the court considers is whether the waiver is against public policy. The court has interpreted this to mean that there is no statute prohibiting a liability release in that situation.
So, if that waiver you just signed before you boarded the boat to partake in a scuba diving adventure states that it releases the scuba diving company, its agents, and employees for any injury caused by their own negligence, there’s a strong possibility the court will uphold that waiver if you were to bring an action against the company for injuries you suffer during your dive. Of course, these determinations are very fact specific so it is recommended that before accepted defeat, you consult with a personal injury attorney who will be able to review the liability waiver and advise you if there can be a recovery for that shark bite you just suffered.