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But I Assumed…

How to (and Not To) Represent Diving and Travel Risks to Your Customers

David Concannon, Dive Center Business, Vol. 13, No. 5, October 2010.

 

In August 1914, Sir Ernest Shackleton placed an advertisement in a London newspaper for men to join his attempt to become the first to cross the frozen continent of Antarctica:

 

MEN WANTED FOR HAZARDOUS JOURNEY.  SMALL WAGES, BITTER COLD, LONG MONTHS OF COMPLETE DARKNESS, CONSTANT DANGER, SAFE RETURN DOUBTFUL. HONOUR AND RECOGNITION IN CASE OF SUCCESS.

Twenty-eight men answered the ad and began a twenty-two month trial of wind, ice, snow and endurance.  Shackleton delivered exactly what he promised; the men were subjected to bitter cold and constant danger as their ship was caught in pack ice, eventually crushed, and the men were forced to abandon ship and set out into the cold Antarctic winter.  They endured a forced march across a frozen landscape, treacherous water crossing in open lifeboats, marooning on an island, another dangerous sea crossing of more than 800 miles of open ocean and an impossible feat of mountaineering to survive their incredible ordeal.   Incredibly, not one lawsuit was filed after the expedition, not even by the ship’s carpenter, Henry McNeish, who reportedly harbored a lifelong grudge against Shackleton for the execution of his cat, Mrs. Chippy.

 

Shackleton’s description of the journey ahead was music to a lawyer’s ears.  It was clear, concise and brief.  No false promises were made, and no false illusions of comfort or success were created.  Imagine what would happen if Shackleton was offering dive travel to customers today?

 

We Live in the Era of Litigation, Not Exploration

 

If Shackleton had sold his expedition as a dive travel package to McNeish in this day and age, he would have been sued.  Two days before the statute of limitations expired on McNeish’s claims, a plaintiff’s lawyer with offices in a strip mall would file a complaint against Shackleton, his ship Endurance, the 1914 Imperial Trans-Antarctic Expedition, and Shackleton’s agent, Shaken Not Stirred Expeditions, LLC, alleging claims for negligence, gross negligence, fraud, negligent misrepresentation, fraudulent concealment, unfair trade practices, negligent infliction of emotional distress (for allowing the ship to get caught in pack ice) and intentional infliction of emotional distress (for ordering the shooting death of Mrs. Chippy). 

 

The lawyer might even throw in a claim for defamation, since McNeish was one of the few expedition members who Shackleton did not recommend for the Polar Medal after their return to civilization.   The complaint would seek damages in “an unspecified amount” for past and future lost wages, emotional distress, harm to reputation, pain and suffering, punitive damages and costs of suit, as well as triple damages and attorney’s fees for unfair trade practices.  

 

We live in an age of litigation, not exploration, where ordinary risks associated with travel are seemingly no longer tolerated.  If you think the hypothetical scenario involving Sir Ernest Shackleton could not happen, you’re wrong.  It has already happened to professionals in the diving industry, for incidents that seem petty in comparison to the ordeal suffered by Shackleton and his men.

 

There is a growing trend of litigation against members of the dive industry for incidents arising out of diving and dive travel, in which plaintiffs allege that they encountered circumstances that were different from what the dive industry professional said they would be.  These cases often involve “you didn’t tell me” allegations, or what lawyers call “a failure to disclose.”  They also involve “you told me it would be safe and it wasn’t” or “you didn’t tell me it would not be safe” allegations, which lawyers call a “misrepresentation of material fact.”  In such cases, the plaintiffs will also allege that they relied to their detriment upon the dive industry professional’s representations, and they were injured as a result.  There are several reasons for this growing trend: 

 

First, allegations that the plaintiff was not told what they were signing up for can be used to defeat liability waivers.  To be valid and enforceable, a liability release must be clear, unambiguous and explicit in expressing the intent of the parties.  The best way to defeat liability is to have a plaintiff sign an agreement in which they expressly agree to assume “all risks” associated with a particular activity.  However, a liability release can be defeated if the plaintiff can show the agreement was obtained by the defendant engaging in fraud or fraudulent concealment.  Consequently, plaintiffs will allege that the dive industry professional provided him with false information that the scuba excursion was safe and suitable in all respects for divers at his experience level, then the plaintiff will argue that their agreement to assume all risks associated with the activity is void because the defendant concealed these risks from the plaintiff.

 

Second, allegations that the plaintiff did not know what they were getting into can be used to defeat the defense of assumption of risk.  The assumption of risk defense is often used by dive industry professionals to diminish a plaintiff’s claims or defeat recovery in a negligence action.  To be successful, the defendant must prove the plaintiff knew of a dangerous condition and voluntarily exposed himself to the risks associated with it.  By voluntarily assuming the risk of harm, the plaintiff relieves the defendant of any duty he may have had to protect the plaintiff from these risks.

 

There are three broad categories in which the defense of assumption of risk can apply:

 

  • In cases where the plaintiff, in advance, has expressly consented to relieve the defendant of an obligation to protect him and to take a chance of injury from a known risk arising from what the defendant is to do or leave undone. An example is where the plaintiff signed a liability release before engaging in the risky activity. In these cases, the defendant is unburdened of all legal duty to the plaintiff and cannot be held liable on a claim of negligence.

     

  • When the plaintiff voluntarily enters into some situation with the defendant knowing that the defendant will not safeguard the plaintiff against the risk. The plaintiff can consent to the negligence, as in the case of riding on an overcrowded ferry in the Philippines or diving to the , which relieves the defendant of the duty that would ordinarily exist.

 

  • The plaintiff, aware of a risk, voluntarily proceeds to confront it.An example of this category would be a certified technical diver knowing it is hazardous to dive 250 feet down to explore a shipwreck but they do so anyway. If this is a voluntary choice, the plaintiff is deemed to have accepted the risk of the activity and assented to free the dive industry professional of all obligations to ensure his or her safety.

 

In all three situations, the crucial elements are that the plaintiff is aware of the risks involved in a particular activity, and he agrees to accept these risks and engage in the activity anyway.  If this is the case, the defense of assumption of risk eliminates the defendant’s negligence by taking away the essential legal element of a “duty of care.”  In other words, the dive industry professional cannot be held liable for the plaintiff’s injury because the defendant no longer owes the plaintiff a duty to ensure their safety once the plaintiff knowingly assumes a duty to take care of himself. 

 

To get around this defense, a plaintiff’s lawyer will assert the “you didn’t tell me” allegations; because the injured diver cannot legally assume a risk he does not know about.  The dive industry professional usually responds by saying, “Yes, I did tell you!”  If so, this usually guarantees that the case will go to trial, because only a jury can determine who is telling the truth.  For the plaintiff, this is a good thing.  Plaintiffs’ lawyers know that cases are more likely to settle on the courthouse steps, because defendants and/or their insurers do not want to incur the risk and expense of a trial.  So by making the “you didn’t tell me” allegations, a lawyer is almost guaranteeing himself a payday, even though he may not have the evidence to prove his claims.  There is always a chance the case will settle before trial, or the jury may believe the plaintiff, and many lawyers are willing to play the odds because the early odds favor the plaintiff.

 

Third, the vast majority of diving accidents are caused by diver error.  Plaintiffs’ attorneys, or at least those who do their homework, know this.  Consequently, they will allege that if the plaintiff made a mistake it was because they were not properly warned by the dive industry professional about the circumstances they would encounter; therefore, they could not properly prepare or train for this excursion.  This is called “shifting the blame for your mistakes onto someone else.”  (Teenagers are pros at doing this.  If left unchecked, this can be great preparation for law school.)  Lawyers call this “apportioning negligence.”  Translation:  The plaintiff can still recover something, and the lawyer will still get paid, even if the plaintiff was at fault for causing their own injuries.

 

Fourth, the plaintiff’s potential recovery is increased if he can prove the defendant made a misrepresentation upon which he relied.  Plaintiffs’ lawyers normally work on a contingency fee basis, which means they are paid between one-third and one-half of any recovery after the deduction of expenses.  If the recovery increases, the payout increases. 

 

In addition, under the unfair trade practices and consumer protection laws of most states, the plaintiff is allowed to recover “treble” (triple) damages, plus attorney’s fees and costs on top.  When you are playing the litigation lottery, this increases the jackpot exponentially.  It also increases the pressure to settle on the defendant or their insurer, because the exposure to liability is increased exponentially.  Any decent plaintiff’s lawyer knows this.

 

Fifth, juries don’t like liars.  If the plaintiff can prove that the dive industry professional lied to them about an important fact, the dive industry professional is on a slippery slope leading down to an adverse jury verdict.

 

Protecting Yourself

 

So, how do you protect yourself against allegations that the conditions encountered on a diving excursion were different from what you said they would be?  Read on.

 

When somebody says the words “Cocos Islands,” what is the first thing that comes to mind?  Gin-clear water and gorgeous islanders or turbulent diving conditions and schools of hammerhead sharks?  If you create illusions of clear blue water and nubile islanders in a person’s head, and then you deliver turbid waters and toothy predators, you’re asking for trouble.

 

You have to make sure your trip participants and their families understand the reality of what divers will encounter once they arrive at the dive trip’s destination.  All too often, they don’t, and this is a recipe for protracted litigation if something goes wrong.

 

Be honest in your marketing brochures.  Provide all pertinent information about a trip or activity to potential customers up front, before a person ever signs up to participate in a trip.  Make sure you instruct potential customers to conduct their own independent research about a trip destination or activity, and provide links to pertinent resources to help them do so.  If the trip location is in a potentially dangerous area, direct your customers to the U.S. State Department’s web site for international travel (http://travel.state.gov/travel/cis_pa_tw/cis_pa_tw_1168.html).  This helpful web site lists country specific information for every country in the world, as well as travel advisories and travel alerts for international hot spots.

 

Use well-written liability waivers.  It is absolutely critical to use a well-written liability waiver for all of your diving activities.  Make sure the participant is expressly waiving “all risks, whether known or unknown,” and releasing “all claims, on behalf of myself, my family, heirs and assigns.”

 

I cannot emphasize this point enough: Liability waivers are not marketing brochures.  Liability waivers have to be written so a judge and a jury can understand and accept the risks involved in a particular dive trip long after the participant has signed off on the line acknowledging that they also understood and accepted the risks involved.  You have to be candid about the risks a diver is likely to face, they have to be spelled out in great detail, and you have to try to list everything, including risks that the diver will encounter on the surface.  Don’t sugarcoat it.  Be brutally honest.

 

I am not a fan of the standard liability waivers for diving offered by training agencies, dive travel companies and dive shops.  While these waivers have been enforced in court (often by me), I find them to be inadequate in many respects, particularly in their description of risks the diver is likely to encounter on the surface. 

 

For example, boaters understand that the risk of fire is one of the most significant risks a person can face when they are out on the water, far from land.  However, standard liability waivers for diving hardly address this risk, even though a diver typically spends more time on a boat than he does in the water.  Additionally, in my view, the words “death” and “drowning” do not appear often enough, as if we are trying not to talk about the obvious risks encountered by a diver venturing underwater.

 

For this reason, I always advise my clients to supplement the standard diving liability waivers with additional contracts that provide a description of the trip, the risks involved and what is expected of the participants.  These contracts can be simple or complicated.  The typical contract includes:

 

  • Description of the type of diving involved such as exploration, research, wreck, drift, shark.

  • Experience level required.

  • Itinerary/route (key destinations and timing).

  • Accurate description of accommodations (basic or luxurious - not “rustic” or “charming,” spacious or small, required occupancy).

  • Leadership and decision making.

  • Planning responsibility (who is responsible for what, when, how).

  • Trip cost/budget (up-front cost, estimated cost on the road, incidentals, opportunities for shopping).

  • Deposit amount (paid in advance).

  • Description of key risks (detailed list, including land and known medical risks, plus blanket statement to cover risks not specifically mentioned).

  • Indemnity (participants travel at their own risk, leader does not have liability).

  • Termination and cancellation (what causes trip to be cancelled or shortened, what happens to their deposit and payments).

  • Necessity that participants are covered by medical and diving insurance, including coverage for medical evacuation from remote environments.

  • Specific information about destination country such as currency, weather, electric current, visa requirements, local customs, crime.

 

This is not an exhaustive list.  The goal of the contract is to provide a mechanism that anticipates issues on the road and gets agreement up front about how to resolve them.  It is much easier to get consensus in advance of the trip.  When you are on the road and in the middle of difficult circumstances, it is virtually impossible to make everyone happy. 

 

Each element of the contract is designed for a reason.  The trip description eliminates unpleasant surprises and allows the divers to decide whether they have the requisite experience level.  If an exciting side trip opportunity comes up that divides the participants, the itinerary is a way to settle the argument. Decision making should be explicitly mentioned (e.g., “decisions will be made by majority, except in situations where the safety or mission of the trip will be compromised, in which case the leader will have sole decision-making authority”). 

 

I find that these supplemental agreements provide an excellent way to satisfy expectations and avoid conflicts.  They also provide additional protection from liability for the trip leaders, because they foreclose the argument that the diver did not know what he or she was getting into when they signed up and paid for the trip.

 

Don’t Shoot the Cat

 

Honestly, I don’t know why Shackleton would give somebody with a cat named Mrs. Chippy a ride across town, let alone offer the man and his cat the opportunity to spend two years on a small boat and a frozen continent with two dozen men and a team of dogs.  It’s no wonder Shackleton thought McNeish was a little strange and he viewed him with suspicion throughout the journey, but he probably went overboard when he ordered his crew to shoot the man’s cat along with the dogs when it came time to conserve food.

 

Shackelton’s relationship with McNeish highlights an important point:  Don’t take somebody on a trip just to fill an empty spot.  You have to make sure the person is the right fit for the group and qualified to undertake the diving being offered.  There is nothing worse than having a whiner or a boor on board a small vessel for days or weeks at a time, except having an inexperienced diver pushing himself to make a dive he isn’t ready for because he paid for the trip and he doesn’t want to disappoint anybody.  Researchers at Divers Alert Network call the latter “statistics,” whereas lawyers call them “decedents.”

 

Seriously, the whiner and the boor will threaten to sue you because their pillows were uncomfortable; but the family of the inexperienced diver will sue because you failed to inform their loved one of the risks involved in the excursion even though you thought it would be obvious to anyone that diving can be dangerous and they need to look after their own safety.  It is easier to turn these people away at your dive shop counter or over the phone than it is to deal with them after they have had a bad experience.  Follow your instincts, check their certification and experience levels, and refer them someplace else if you don’t believe they are suitable for what you are offering.  It is better to turn them away before they ever set foot on a dive boat.  Otherwise, the ghost of Mrs. Chippy may come back to haunt you.