A U.S. Court of Appeal has ruled that a waiver signed by a diver to exclude a dive school from liability arising from "any death, injury or other damages" is unenforceable.

The daughter of a man who drowned during an advanced diving course has been given the go-ahead to sue the Pennsylvania-based diving school for 'wrongful death', despite the existence of a signed waiver excluding liability.

On the morning of 17 July 2001, Eugene Pietroluongo signed a waiver agreeing to exclude the Regency Diving Center in Millburn from liability 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." In the afternoon he went missing on a dive in a designated diving park while diving with an instructor, and another student. His body was recovered the following day.

The US Appeal Court judges ruled that although a diver could sign away the right to sue, in the case of a fatality, he could not sign away the rights of his surviving family.

It is common practice for US-based diving operators to insist that legal waivers must be signed by divers before any diving can take place, as the sport is considered a high-risk activity.

British legislation is substantially different. In the UK, such 'waivers' are covered by the Unfair Contract Terms Act 1977, which prevents any company from excluding liability which arises from negligence. The Health & Safety Executive investigate all deaths and serious accidents that occur while divers are under training, and will bring a prosecution where lapses in safety are discovered.

Related pages
Divers in court - the definitive guide to UK legal liability
An inspector calls - the role of the HSE
New DVD for instructors launched by HSE
HSE website - diving section


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