TALLAHASSEE, Florida (26 Mar 2009) — Florida's Senate Judiciary Committee has postponed a vote on a measure aimed at undoing a recent Florida Supreme Court ruling that invalidated parental waivers for dangerous activities such as scuba diving. The postponement was the latest in a series of setbacks for the bill, which is backed by Florida business interests. CDNN sources in Florida said scuba diving operators and other activity providers are fighting an uphill battle to overturn the December Supreme Court decision, which was another severe blow to the dive industry's controversial and often-criticized waiver scheme that shifts legal responsibility for dive operator negligence to the diving public. Several Florida activity providers, including Gatorland's jovial owner, Mark McHugh, appeared at a senate hearing that preceded the decision to postpone a vote on the controversial measure (SB 886). "It's a hoot," said McHugh chuckling as he described Gatorland's "Trainer for a Day" program, in which customers handle alligators that have had their mouths taped shut. State senators were not amused "What happens if you make a mistake and one of your employees does not adequately tape the mouth of that alligator?" asked Sen. Arthenia Joyner, a Democrat from Tampa. "If you have gross misconduct … you should be held responsible," McHugh replied. Scuba diving and liability release waivers While the most important rule of scuba diving is not holding one's breath, the most important rule of operating a scuba diving business is not allowing customers to scuba dive without first signing a liability waiver release. But increasingly, courts are rejecting the dive industry's waiver scheme that essentially shifts legal responsibility for dive operator negligence to the diving public. Prior to Florida's Supreme Court decision in December invalidating parental waivers, courts in California and New Jersey ruled that activity providers can be held liable for wrongful death even when victims sign liability waivers. In July 2007, CDNN reported that the California Supreme Court ruled 6-1 that recreation providers in the state may be held liable for gross negligence regardless of the wording on liability waivers signed by participants or their parents. Despite claims by California's recreation and sports industry that facilitating the victim's right to sue would be the death knell for scuba diving operators and other activity providers, Chief Justice Ronald M. George said there was no evidence that states with even more liberal rights to sue have lost recreational opportunities. | | The recent Florida Supreme Court decision invalidating waivers was good news for kids injured while scuba diving, bad news for dive operators who wrongfully and negligently cause injury. The global scuba diving industry is founded on a controversial and often-criticized waiver scheme that obligates the diving public to assume legal responsibility not only for their own conduct but also for dive operator negligence. In April 2004, CDNN reported that a New Jersey appellate court ruled 4-1 that the relatives of Eugene J. Pietroluongo, who died during a scuba diving course conducted by Regency Diving, had the right to sue for wrongful death even though the victim signed a liability release waiver. "In adopting the Wrongful Death Act, our Legislature declared that a just society has both a moral and economic responsibility to ensure that those who are found civilly liable for the death of a person are required to compensate the heirs of that person for the pecuniary losses resulting from his or her death," wrote Appellate Division Judge Jose L. Fuentes. "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." |
