It
seems like a silly thing to even consider. Descending to a depth of
13,000 feet in the cold, unforgiving North Atlantic ocean in a
weirdly amateurish, home-made submersible. I followed the story of
its loss with some curiosity, although without real interest. What
kind of company slaps a thing like this together, ignoring the safety
conventions and the laws of both Murphy and physics, and sends it
down full of billionaire adventurers who pay $250,000 per person for
the privilege? The answer seems to be: the kind of company that
trusts its risk of liability purely to the customers’ signatures on
liability waivers.
This
morning I read the articles about the loss in the N.Y. Times and the
Daily Beast, and both strongly suggested that the company would be
building its defense to wrongful death law suits (more essentially,
negligence suits) on its supposedly strong liability waiver. That
thing certainly seems to mention “possibility of death”
everywhere that it is possible to squeeze it in. Oh, if only it were
that simple.
My
first legal observation was, “those things are usually found to be
against public policy, aren’t they?” Well, it turns out that the
answer is “yes,” as long as you include the “usually.”
I
like to check a bit before I shoot my mouth off, so I consulted
Professor Google. I always favor real law websites, so I read a nice
article in the National Law Review (June 24, 2023). I’d say that
they have also been following events as they unfold.
They
also started off by pointing out that liability waivers are
unenforceable if in violation of public policy. They dropped in more
of the subjunctive than I did by making it conditional on an extra
“if.” The article relied quite a bit on a case named Atkins v.
Skimwest. Atkins starts with a warning of what is to come, “case
law does not favor liability waivers.”
Atkins
goes on to say that liability waivers “are not automatically
invalid,” but that they will in every case be “strictly construed
against the party seeking to rely” on them. The waivers must be
ridiculously specific about every single risk that exists and that
the customer is waiving. What’s more, the person signing the waiver
must have been given the opportunity to bargain over the waiver, to
bargain not only over the risks to be waived but also over signing
the thing at all! Have you ever heard of that happening? Me neither.
The
customers here are people to whom $250,000 is a weekend outing for
one. They are billionaires proving once again that it is hard to
think of things to do with all of that money. Have any of them
actually sought legal advice about the waiver? A good lawyer would
advise them to bargain with the dimwits running this company. “Tell
you what, I’ll give you $350,000 if I don’t sign the waiver.”
The answer is no? “Okay, $500,000.” Still no? No counter offer
(“for a million, you can go without the waiver”), no back and
forth? You have not been given a chance to bargain in good faith. You
must sign, or no deal. You can sign, and the waiver is void for
violating public policy. The defense fails.
Just
imagine the legal horsepower available to an estate worth billions of
dollars. At least when the plaintiffs can be trusted to pay their
bills. This should be interesting.
