Doherty v. Diving Unlimited International, Inc.

140 N.E.3d 394 (2020)

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Nature of the Case

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Facts

The decedent, who was a certified open-water scuba diver, drowned while participating in a promotional diving equipment event that was sponsored by DUI. Local divers tested DUI's dry suit. D was the leader of the dive. Prior to participating in the event, the decedent signed two documents. The first was a release from liability, which had several subsections that were set forth in all capital letters and underlined, including “effect of agreement,” “assumption of risk,” “full release,” “covenant not to sue,” “indemnity agreement,” and “arbitration.” In capital letters under the subsection titled “effect of agreement,” it said, “Diver gives up valuable rights, including the right to sue for injuries or death.” It also told the decedent to read the agreement carefully and not to sign it “unless or until you understand.” The subsection titled “full release” stated that the decedent “fully released DUI from any liability whatsoever resulting from diving or associated activities,” and the subsection titled “covenant not to sue” stated that the decedent agreed “not to sue DUI for personal injury arising from scuba diving or its associated activities,” and that the decedent's “heirs or executors may not sue DUI for death arising from scuba diving or its associated activities.” The decedent also signed an equipment rental agreement, which stated, “This agreement is a release of the decedent's rights to sue for injuries or death resulting from the rental and/or use of this equipment. The decedent expressly assumes all risks of skin and/or scuba diving related in any way to the rental and/or use of this equipment.” Golbranson led a group comprised of the decedent and two other divers. During their dive of a diver experienced a depleted air supply. D signaled for the group to surface and to swim back to shore on the surface. Decedent separated himself from the group that was returning. A short time later, the decedent surfaced and called for help. The decedent died at the hospital from “scuba drowning after unequal weight belt distribution.” P sued D on behalf of the decedent's statutory beneficiaries. D moved for summary judgment, claiming that the release from liability and the equipment rental agreement protected him, as an agent of DUI, against any negligence suit or liability. P claimed that neither waiver would prevent the decedent's statutory beneficiaries from recovering damages for wrongful death. D got the judgment and P appealed.