by Jonathan T. Howe, Esq | April 01, 2006

In the meetings industry, planners try to limit liability for attendee injuries and/or deaths by having the proper insurance or by having participants sign assumptions of risk or waivers. 
    For the most part, the courts have been suspicious of waivers and assumptions of risk that were not detailed or had not provided an informed consent that outlined the nature of the risk. But in cases where the specific risks were spelled out, the courts have upheld such assumptions.

A recent decision by the Appellate Division of the Superior Court of New Jersey has raised questions about whether a waiver signed by a participant in a scuba-diving instruction course precluded his heirs from being able to bring a wrongful death suit against the instructor’s employer under New Jersey law. 
    The court held that the signed release, which had the express purpose of barring the man’s heirs from instituting a wrongful death suit, did not eliminate the heirs’ right to prosecute their case against the instructor’s employer. 
    The deceased party was a certified, advanced open-water diver. In addition to the waiver, he provided the diving firm with a statement from his physician that said he could participate in the course despite being on medication for high blood pressure. 
    During the actual dive, the instructor and another diver almost got into an accident; this distracted the instructor, and the diver in question became lost. When he did not surface, one of the group members swam ashore to summon help and begin a search effort. 
    Ultimately, his body was found the next evening 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 accidental. 
    At the trial, the court held that the waiver signed by the deceased diver barred any survivor claims that could have been asserted by his estate under New Jersey law. Yet, the same trial court held that it did not legally preclude an independent wrongful death action brought by the deceased diver’s heirs, who had not signed the release. 
    This action is contrary to the decision a California appellate court rendered on a similar case in 1988. In that case, the court held that the waiver operated as a complete bar to all claims, including wrongful death action, made in connection to voluntary recreational diving activities.

The New Jersey court, on the other hand, held that the decision was inconsistent and could not be rationally integrated into the New Jersey wrongful death decision. The New Jersey Wrongful Death Act states that when the death of a person is caused by wrongful act, negligence or default, a claim can be made on the person’s behalf as if the person was injured.
    The New Jersey court viewed the release as a contract that only bound the parties the diving company and the decedent who signed it.
It went on to state that “an exculpatory release [waiver] will be enforced if it does not adversely affect the public interest; the exculpated party is not under a legal duty to perform; it does not involve a public utility or common carrier, or the contract does not grow out of unequal bargaining power or is otherwise unconscionable.”
    The bottom line for planners is that even when participants/attendees have signed releases and assumptions of risk, planners and/or their companies might still be liable to the heirs.
    The best advice is to have both insurance and releases when and where you can. The more layers of protection, the better.