 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Dailey v. Sports World South9/30/2003
contains a detailed discussion of hyperbaric injuries but says nothing about the danger of drowning from panic. See Phyllis G. Coleman, Scuba Diving Injuries: Causes, Remedies and Defenses 29 J. Mar. L. & Com. 519, 541 (1998) (suggesting, in light of study finding 54% of experienced divers questioned had panicked at least once, scuba industry is masking dangers of panic to keep new customers flowing through door). The release does not refer to the possibility that the instructor may deviate from accepted practices or that an instructor's decision to affirmatively undertake a greater duty of care does not expose the instructor or Scuba Center to any level of liability. The release was not the result of a bargained-for exchange where both sides exercised good faith and fair dealing.
The need for freedom of contract cannot support a contract that"violates some principle which is of even greater importance to the general public." Christensen v. Eggen, 577 N.W.2d 221, 225 (Minn. 1998) (quoting Rossman v. 740 River Drive, 308 Minn. 134, 136, 241 N.W.2d 91, 92 (1976)). Scuba Center argues that the public policy issue in this case squarely falls within Schlobohm's analysis because it involves a recreational activity. What is at issue here, however, is instruction and not recreation. Baschuk v. Diver's Way Scuba, Inc., 618 N.Y.S.2d 428, 430 (N.Y. App. Div. 1994).
Unskilled consumers seek instruction because they cannot understand all dangers an activity, foreign to the average person, presents nor can they know how to escape danger when arises. Instead, the consumers must entrust the instructor and the school with their very lives. In a time when this country has realized the need for a heightened sense of corporate responsibility, I fail to see how upholding a release of liability for a company that is entrusted with the lives of this state's citizens, and then violates that trust, serves the public interest.
As the Virginia Supreme Court eloquently stated in invalidating an exculpatory clause involving a sporting event, allowing one party"to put the other parties to the contract at the mercy of its own misconduct... can never be lawfully done where an enlightened system of jurisprudence prevails. Public policy forbids it and contracts against public policy are void." Hiett v. Lake Barcroft Cmty. Ass'n, 418 S.E.2d 894, 896 (Va. 1992) (alteration in original) (quotation omitted). In Minnesota, a basic precept of justice and a principle embodied in Section 8, Article 1 of the Minnesota Constitution is a wrongdoer should bear the burden of his or her own conduct, not the innocent victim. Anderson v. Stream, 295 N.W.2d 595, 600 (Minn. 1980). We have long recognized that this policy outweighs the need of"freedom in contract" when it comes to the sale of consumer goods. See Minn. Stat. ยงรก336.2-719 (2002) ("Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not."). Consumer instruction should not be any different.
I would reverse the district court's grant of summary judgment and remand for trial.
|