Third District Court of Appeal Reverses in Scuba Diving Wrongful Death Case

SONY DSCWith a seemingly endless coastline, Florida is a haven for water-based recreational activities. As the Third District Court of Appeal noted at the conclusion of its recent decision in Diodato v. Islamorada Asset Management, Inc., many Floridians and tourists in the state commonly enjoy recreational activities such as jet-skiing, para-sailing, and scuba diving. Although the vast majority of those who engage in these activities do so without incurring any injury, they remain hazardous activities, and participation does come with some degree of  risk. In light of the attendant dangers posed by these and other forms of recreation, virtually every business in this field requires customers to sign contracts containing provisions commonly known as exculpatory clauses, which state that the customer assumes the risk associated with the activity. This practice is at the center of the controversy in Diodato, which involved the unfortunate drowning of an Arizonan woman during a deep-water wreck scuba excursion off the Florida Keys.

The aforementioned drowning occurred on April 15, 2010, although this was not the decedent’s first time diving. In fact, she had obtained PADI certification in Arizona and had previously gone on several other dives with the principal defendant in this lawsuit, Key Dives, an Islamorada-based recreational scuba diving company. The fatal dive, however, was an advanced deep-water wreck dive, which was unlike the open water reef dives she had previously done with Key Dives instructors. It is common practice at Key Dives for customers to sign a liability release prior to each dive. However, on this day of this dive, the decedent arrived late to the dock and was not required to sign a waiver. After submerging about 10 feet, the decedent signaled to one of the instructors that she would like to surface. The instructor followed her up but did not help her back on board the boat. While trying to board the boat, the decedent lost hold of the boat’s granny line and drifted away. In response, the captain signaled an alarm, and after a brief search, the decedent was found floating, but she had drowned.

Following the incident, the estate of the decedent brought a wrongful death action against Key Dives and several of its employees and agents. Although the decedent had not signed a liability waiver on the day of that particular dive, the defendants argued that other liability waivers signed by the decedent in connection with other Key Dives diving events covered the incident at hand and shielded the company from liability. Specifically, in August 2009, the decedent signed a liability waiver before a series of six open-water reef dives and initialed a provision on the contract that stated that the release was valid for one year from the date it was signed. In addition, the day before the deep-water dive, the defendant went on an open-water reef dive that was being used as preparation for the upcoming advanced dive and again signed a liability release. This release was identical to the one signed in August of the year before, but the decedent on this occasion did not initial the one-year provision. Although Key Dives intended for the decedent to sign a more thorough release form on the day of the fatal dive that covered particularities of the deep-water excursion, the decedent did not sign this release, since she, as mentioned above, arrived late, and the crew did not wish to delay other diving customers. Following discovery, the trial court granted summary judgment in favor of the defendants and held that the August 2009 and April 2010 releases covered the fatal diving event at issue, and, accordingly, the decedent had released Key Dives and its employees from liability.

The Third District Court of Appeal, however, disagreed and reversed the grant of summary judgment. First, the court noted that pre-injury exculpatory provisions, although permissible under Florida law, are “disfavored and are enforceable only … to the extent that the intention to be relieved from liability was made clear and unequivocal….” Gayon v. Bally’s Total Fitness Corp., 802 So.2d 420 (Fla. 3d DCA 2001). With regard to the earlier releases signed by the decedent, the Court of Appeals found language regarding their scope to be ambiguous. In particular, the court noted that the term “activity” was not defined in either release and used in the singular. Given that the other dives were of a different nature than the fatal deep-water dive, it is unclear that the term “activity” was intended to cover this type of advanced dive. This conclusion was bolstered by the fact that the release the decedent was supposed to sign on the day of her fatal dive had wider breadth that accounted for differences in risk. Correspondingly, it followed that the one-year provision in the August release was reasonably not intended to cover the fatal dive, but rather just the series of open-water dives purchased at the time. Thus, the court concluded that the ambiguous language in the liability releases made them unenforceable with respect to the fatal dive, and thus granting summary judgment was inappropriate.

Although the court sided in favor of the decedent in this case, it is important to note that the court made a point to mention that the offending exculpatory provisions in these contracts could have been readily modified to cover the deep-water dive. For instance, the court stated that expanding the scope of the term “activity” at the time of execution to include “any and all future courses of instruction, programs, scuba dives, certification levels, and dive-related boat travel, undertaken by the releaser” would have sufficed. Accordingly, one should always be cautious about the agreements one signs before engaging in hazardous recreational activities. However, most customers do not have sufficient negotiating power to successfully bargain for any change to the terms of a form agreement. Accordingly, following an injury, recovery will often depend on successfully arguing that an agreement executed prior to the injury is unenforceable, which requires the assistance of knowledgeable counsel. The South Florida injury attorneys at Frankl & Kominsky have considerable experience in this area of the law and are ready to answer your questions. Feel free to contact us for a free case evaluation.

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