Pl. enrolled in a scuba diving class, had to sign a waiver, which he did after hearing that such releases were rarely enforceable. Went out on check out dives, felt effects of decompression sickness, told he could never dive again, states that the instructor was negligent in not allowing for a decompression stop which significantly increased the risk of her students getting decompression sickness.
-Such agreements are subject to close judicial scrutiny and not upheld unless the intention of the parties is expressed in clear and unmistakable language.
(wording should be clear and precise as possible to the extent to which a party intends to be absolved of liability.)
-Broad waiver of negligence provisions are not sanctioned.
-look at intention of the parties in determining extent of exemption from liability in releases.
-It does not reasonably follow that Pl. intended to waive his right to recover from Def. for failing to follow even the most basic industry safety standards.
-Contracts intending to limit the liabilities of one of the parties would not be enforced unless the limitation is fairly and honestly negotiated and understood by both parties.
-This agreement fails to use specific and unmistakable terms to waive liability. Remanded for trial in accordance with this opinion.
B. Implied Assumption of Risk
Primary implied assumption of risk- Describes situations in which a court concludes or a statute states that Def. has no duty to the Pl. or has not breached a duty to Pl.
Secondary implied assumption of risk- requires a subjective test of whether the Pl. actually knew and appreciated the risk created by the Def.’s wrongful conduct and voluntarily accepted the risk.
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