waiver in danger?

[ginger1236 0]

I don't know if this link is going to go through, but evidently a scuba waiver just got blown out of the water by a court of appeals. Penn I believe.

Could this spell bad news for us?
Ginger


www.nj.com/statehouse/ledger/index.ssf?/base/news-1/1081839266108210.xml.

[sdgregory 0]

CLICKY


I finally figured it out!


edited to add : My first real clicky

[mdwhalen 0]

Yes, this was already reported. I've read the whole opinion now and its already bad news in New Jersey and potential bad news for the rest of the country. There is no appreciable difference between the scuba release in the opinion and skydiving releases in use around the country. This is now "the law" in NJ and is out there for other states to adopt should the argument be made and accepted. The insurance industry, which would be affected whenever it settles a case involving potential death with potential heirs, will certainly take some action against this through lobbying state legislatures.

http://www.dropzone.com/cgi-bin/forum/gforum.cgi?post=1030976#1030976

"I have magic buttons ;)." skymama

[bodypilot1 0]

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My first real clicky

But it doesn't bring up the article.....

www.WestCoastWingsuits.com
www.PrecisionSkydiving.com

[sdgregory 0]

not my fault, the original post doesn't either

[OnYourBack 0]

Survivors can sue despite a waiver
Court permits action in scuba diving death
Tuesday, April 13, 2004
BY KATHY BARRETT CARTER Star-Ledger Staff
For years, companies that sponsor higher risk activities such as scuba diving and skydiving have asked participants to sign waivers designed to absolve them from lawsuits if injury or death results.
Yesterday, a state appeals court declared those release forms do not bar relatives from filing a wrongful death lawsuit.
A three-judge panel made its decision 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 three years ago. It cleared the way for Pietroluongo's 13-year-old daughter, his sole heir, to sue the Regency Diving Center in Millburn.
The court said while Pietroluongo had the power to sign away his right to sue, the law did not allow him to sign away the rights of his survivors to bring a wrongful death lawsuit. It said such an agreement, "like any contract, can only bind the individuals who signed it."
Attorneys said yesterday that the decision yesterday sets new rules and could result in more lawsuits.
"This is the first reported case in New Jersey dealing with this particular issue," said Michael J. Barrett, the Woodbridge lawyer representing Pietroluongo's daughter. "Now that it is clear what the rules are, those engaged in recreational activities know what they are dealing with."
Larry Zucker, who serves as counsel to the New Jersey Amusement Association, said many companies require patrons to sign release forms. Zucker said he did not think the fallout from the court decision would be far-reaching because very few accidents are fatal.
"Thank God, death actions are very rare," said Zucker. "This is not your typical situation. I don't think it'll have a big impact or create any additional exposure or liability in the amusement industry."
Costas Prodromou, the owner of the Regency Diving Center, declined to comment on the ruling. His attorney, Judith A. Wahrenberger, did not return calls yesterday.
Pietroluongo went to the Regency Diving Center for advanced diving training. He signed a waiver agreeing that the diving school would not be liable for "any injury, death, or other damages to me or my family, heirs, or assigns that may occur as a result of my participation in this diving class or as a result of negligence of any party."
Pietroluongo died on July 17, 2001, while scuba diving along with Prodromou, another instructor and a student. The dive took place at Dutch Springs Quarry, an old cement quarry that was turned into a diving park in Bethlehem, Pa.
An experienced diver, Pietroluongo had been scuba diving since 1984. The other student, who was less experienced, had some problems during the dive. When the two instructors brought that diver to the surface, they lost sight of Pietroluongo and were unable to find him. The next evening Pietroluongo's body was found in 66 feet of water with an ample supply of air in his tank and equipment in working order. The medical examiner ruled his death an accidental drowning.
Bonnie Gershon, Pietroluongo's ex-wife, brought a lawsuit on behalf of the couple's daughter.
"He was not married, but he had one child, and what the court held is that Mr. Pietroluongo could not sign away her rights," said Barrett. "That would be unfair and contrary to the wrongful death statute."
Barrett said the ruling would take effect after a person dies and family members claim economic loss. Affirming the lower court, the appeals panel said Pietroluongo's agreement with Regency is "unenforceable."
Noting that wrongful death lawsuits are often brought when "breadwinners" die, the court said: "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."
The decision was written by Appellate Division Judge Jose L. Fuentes and joined by Judges Dorothea Wefing and Donald G. Collester Jr.

[nightjumps 1]

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scuba waiver just got blown out of the water

Ya cracks me up. If someone challenged ours, would it be in jeopardy of getting blown out of the sky?

[riddler 0]

This has been the subject of a few threads on Scuba Board since last year.

Maybe the solution is to not let lawyers engage in dangerous activities?

Trapped on the surface of a sphere. XKCD

[goose491 0]

This only reinforces the need for us all to openly discuss our sport, the risks involved, and our passions for it opely with our family and loved ones.

A friend once told me that a lot of BASE jumpers take the time to write a letter to their loved ones, to be delivered should they die doing what they love. The letter states basically a hope that their loved ones will not point the blame at gear manufacturers or the sport itself.

Perhaps we should all consider this as a practice? I know I have considered it. I have told members of my family quite frankly that barring the obvious 'wrongful death', I do not wish them to attack my sport if I go whilst engaging in it.

What are your thoughts?

My Karma ran over my Dogma!!!

[ginger1236 0]

Ours getting blown out of the sky is exactly my worry.

I thought our waivers were holding up pretty well around the country. How is this ruling going to effect our drop zones?

[ginger1236 0]

It wasn't a matter of the guy talking to his family about it. His lovely Ex wife took it upon herself to make some extra money. This is going to be an extremely expensive endeavor for EW's lawyers.

All I can figure is that the scuba shop has so much liability insurance it sent the legal sharks into a feeding frenzy.

Opinions anyone????
ginger

[kelpdiver 2]

Quote

I don't know if this link is going to go through, but evidently a scuba waiver just got blown out of the water by a court of appeals. Penn I believe.

There was another thread here last week. As I said there, this didn't exactly blow the waiver out - it just said that you CAN'T write off other people's legal rights.

The case was also rather different in that it was a class dive, and standard practices may have been ignored. That's enough to bypass the waiver anyway.

[riddler 0]

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All I can figure is that the scuba shop has so much liability insurance it sent the legal sharks into a feeding frenzy.

If you are going to be a SCUBA instructor in the US, a lot of your decisions about how and where you work are tied to insurance. You can get personal liability insurance, which can be quite expensive, and work anywhere you want. But my (limited) experience is that most dive instructors in this country get group insurance with the shop they are affiliated with, and they only teach at that shop. Each instructor still typically has to pay out of his/her own pocket, but the rates are usually much less.

Skydiving (also in my limited experience) does not typically share the practice of instructor liability insurance. That may lead to fewer lawsuits - I don't know.

I'm not ready to make too much of this suit yet. Considering the waivers, the instructors pretty much have to do something intentional to hurt you for the lawsuit to succeed.

Trapped on the surface of a sphere. XKCD

[mdwhalen 0]

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I'm not ready to make too much of this suit yet. Considering the waivers, the instructors pretty much have to do something intentional to hurt you for the lawsuit to succeed.

You are missing the very point of the opinion. The upshot of the opinion is that the waiver is ineffective against the heirs of the victim of a skydiving accident. To hold instructors liable for simple negligence if it results in a death. Simple negligence is a question of fact "Did the instructor use reasonable care in supervising the student?" Questions of negligence nearly always go to the jury, i.e. they are not thrown out by motion early in the proceedings, meaning defending an action becomes prohibitively expensive.

"I have magic buttons ;)." skymama

[scottjaco 0]

In this country, the skydiving waiver has never prevented skydivers or their families from sueing.

Sure, the case will probably be dismissed but the costs and the hassle are enough to keep most people from ever opening their own dropzone.

[argon 0]

I had actvively raced Winged Sprint Cars throughout the northeast until 2001. Each time the driver and anyone entering the pits would have to sign a waiver-a covenant NOT to sue. As in skydiving-things can happen. Racers are like skydivers(hopefully) risks are accepted and its generally understood shit can happen. There was a very high profile driver named Doug Wolfgang that sued a race track and VOLUNTEER firefighters that put his flaming ass out during a practice session--to make a long story short the court invalidated the waiver and everyone in the sport had the same reaction. Bottom line -he got nothing, and they still race all over the country two or three nights a week. TORT REFORM is what is needed, write your representatives and senators-unfortunately the most of them are trial lawyers--It's just one sad state of affairs.....

***********
Freedom isn't free. Don't forget: Mother Earth is waiting for you--there is a debt you have to pay...... POPS #9329 Commercial Pilot,Instrument MEL

[mcrocker 0]

Maybe all of us skydivers need to write it in our will that our survivors are not allowed to sue the DZ. Would a dead mans last wishes stand up in a stupid court?

[kelpdiver 2]

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Maybe all of us skydivers need to write it in our will that our survivors are not allowed to sue the DZ. Would a dead mans last wishes stand up in a stupid court?

No, for the same reason that a signed waiver didn't in this case. It your last "wishes," not commandments.

Can't hurt, though.

[argon 0]

TORT REFORM-as long as a person can sue, and pay absolutely NOTHING in legal fees unless they can collect the problem will exist. If the law even forced the plaintiff to pay a percentage of legal fees if they loss the case and not collect damages this shit would stop immediately. If YOU as an individual or as a representative of a company have ever been exposed to the civil court system as a defendant you would see my point. Remember FREEDOM isn't free and if we want to continue to jump,ride motorcycles,ski or do any what some may call "extreme" sports we ALL have to unite and fight this nonsense. People buy houses next to AIRPORTS and then complain about airplane noise-and you know what-the squeeky wheel gets the oil. AOPA does its share for general aviation,AMA for motorcycling and even the USPA does perform a function--just imagine if those that chose to take part in extreme sports had the political clout of the AARP or the NRA. It IS UP TO US-this shit has to stop--Have you ever noticed that you can't sue a judge or any member of the judiciary-you can sue a cop that gives you a ticket-but you can't sue a judge that releases a child molester to commmit another assault. Remember EVERY vote counts and everytime you complain about a loss of your freedom-no matter how insignificant is a step toward a better America. Just my 2 cents -forgive the soapbox act,

***********
Freedom isn't free. Don't forget: Mother Earth is waiting for you--there is a debt you have to pay...... POPS #9329 Commercial Pilot,Instrument MEL

[tombuch 0]

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TORT REFORM-as long as a person can sue, and pay absolutely NOTHING in legal fees unless they can collect the problem will exist. If the law even forced the plaintiff to pay a percentage of legal fees if they loss the case and not collect damages this shit would stop immediately.

What would stop would be legal actions from the poor who would be unable to risk loosing more than they own. Thus, you would have a court system that continues to provide access to the wealthy (at a cost), but prevents court access for the poor.

Improved definitions of negligence and gross negligence, coupled with better charges to a jury would be more helpful. Perhaps it might also make more sense to have money related issues handled by a professional judge who can deliver a more consistent series of decisions. A jury is a reasonable decision making body when criminal or liberty issues are at stake, but complex litigation might be better handled by a solo judge.

The right to sue is assured to every citizen and is one of the ways individuals are able to protect themselves from big business and government. Eliminating that right would make us far less free.

Tom Buchanan

Tom Buchanan
Instructor Emeritus
Comm Pilot MSEL,G
Author: JUMP! Skydiving Made Fun and Easy

[argon 0]

Quote

Quote

TORT REFORM-as long as a person can sue, and pay absolutely NOTHING in legal fees unless they can collect the problem will exist. If the law even forced the plaintiff to pay a percentage of legal fees if they loss the case and not collect damages this shit would stop immediately.

What would stop would be legal actions from the poor who would be unable to risk loosing more than they own. Thus, you would have a court system that continues to provide access to the wealthy (at a cost), but prevents court access for the poor.

Improved definitions of negligence and gross negligence, coupled with better charges to a jury would be more helpful. Perhaps it might also make more sense to have money related issues handled by a professional judge who can deliver a more consistent series of decisions. A jury is a reasonable decision making body when criminal or liberty issues are at stake, but complex litigation might be better handled by a solo judge.

The right to sue is assured to every citizen and is one of the ways individuals are able to protect themselves from big business and government. Eliminating that right would make us far less free.

Tom Buchanan

What you are saying is true. The extreme nature of jury awards,deep pockets etc is the problem though. Unfortunately there will always be those that have and those that don't. But it IS the rich that own the companies-that make the products-that give all of us jobs. Look at what the lawsuit "industry" has done to general aviation. I'm not saying we should stop someone from sueing-but malicious lawsuits cost only the defandant money-the person bringing the lawsuit has NOTHING to lose. I will not be involved in flight instruction anymore just for that reason. My suggestion are "professional" jurors or arbitrators. But ,yes you are indeed correct in what you say and one extreme does not fix another.--- When was the last time a new Otter came out of a factory? A 182? A new Beech Baron is over 1 million dollars-alot of that cash isn't in production cost-but INSURANCE cost for the company. I still stand by my soapbox though. TORT REFORM. We will ALL benefit.

***********
Freedom isn't free. Don't forget: Mother Earth is waiting for you--there is a debt you have to pay...... POPS #9329 Commercial Pilot,Instrument MEL

[mr2mk1g 10]

How about you just take away the quantative powers US juries currently enjoy?

Over here a Judge makes all calls about the actual value of an award and his decision is based on case precedent. Counsel are even invited to point the Judge to the cases they believe are indicative of the correct award to ensure the Judge has a ballanced view of the cases.

There are guidelines set down by the Judicial Studies Board giving value brackets within which each type of injury falls. This provides a firm framework within which individual cases may be judged whilst still allowing a significant level of discretion on behalf of the judge. These guidelines are updated regularly to take account of inflation and shifting trends and are supplemented by a comprehensive collection of cases detailing previous awards for a whole host of injuries.

Here a great many cases can be easily quantified to within a 10% of the likely award long before trial, which promotes early settlement and prevents the lottery I hear about in the US. It also keeps awards sensible, fair and representative of the injury sustained.

Ditch jury awards. In my opinion they’re a root cause of a great deal of the troubles seen in the US judicial system today.

[kelpdiver 2]

your solution creates its own problems. The loser pays method means that corporations are given much greater leeway to commit fraud. There are no easy answers to this one.

The problem and the costs of litigation seem to stem from the fact that judges will rarely dismiss even an obvious slam dunk for the defense. For suits that really fall under the assumption of risk category I would like to see a simpler process by which the plaintiffs make their case that there was gross negligence. If not, dismissal.

Unfortunately this hearing would then just be a debate of the facts at hand - all you can really do is set it up so that if the plaintiff is found to have misrepresented their case to get a trial that you sanction him with costs.

Maybe it works. Or maybe it just makes a new mess. Any solution that is simple is certainly not going to solve the problem.