Third District Court of Appeal
Third District Court of Appeal ()

A state appellate court ruled one waiver does not fit all to shield companies from litigation when it comes to thrill-seeking activities.

The Third District Court of Appeal on Wednesday overturned a ruling in favor of a Florida Keys dive operator sued over a customer’s drowning on an excursion to a shipwreck.

Avia Diodato drowned in April 2010 when she didn’t return to the boat in an open-water dive to the wreck of the Eagle, a freighter that was sunk intentionally near Lower Matecumbe Key.

Diodato’s husband, Dominic, sued Islamorada Asset Management Inc., owner of the operator Key Dives.

Avia Diodato signed releases with Key Dives in the previous year and for a shallow reef dive the day before her death.

Monroe Circuit Judge Luis M. Garcia rejected Dominic Diodato’s argument that the dive operators failed to follow their own standard practice by making her sign a different waiver for the shipwreck dive to a depth of 110 feet and granted summary judgment in favor of the company.

The Third District Court of Appeal in Miami reversed that decision and sent the case back for further proceedings.

“The scope and duration of the ‘activity’ to which the signed exculpatory provisions applied is a genuine issue of material fact that precludes summary judgment,” Judge Vance Salter wrote for the three-judge panel. Judges Richard Suarez and Leslie Rothenberg concurred.

Salter wrote people are free to engage in hazardous recreation, such as parasailing and scuba diving, and to contractually assume all risks. The law, though, is clear that signed waivers need to be tailored to the risk, not just the activity, he said.

“We disfavor and narrowly construe such pre-claim exculpatory terms,” Salter wrote.