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Dominic James Diodato v. Islamorada Asset Management, Inc., et al., Case Nos. 3D12-3393 & 3D12-2276 (3rd DCA)

Diodato is an appeal of a summary judgment entered in favor of the defense and against the personal representatives of the estate of an individual who passed away while on a recreational scuba diving trip. The trial court entered summary judgment based upon certain printed releases signed by a husband and his late wife, the decedent. Applying Florida’s well-settled law disfavoring and narrowly construing exculpatory clauses, the Diodato court reversed the summary judgment, finding that the scope and duration of the “activity” to which the signed exculpatory provisions applied presents a genuine issue of material fact.

The defendant dive operator had a practice of requiring customers to sign a release immediately prior to a dive. The signed releases at issue included a release signed on August 29, 2009, which included language stating that it was to remain valid for one year, and a second release signed on April 14, 2010, in which the Diodatos did not initial the language stating the duration of the release. The Diodatos dove later that day, on April 14, 2010. The Diodatos dove again on April 15, 2010, an advanced open water dive, during which time Mrs. Diodatos drowned. They did not sign a release on April 15, 2010, immediately preceding the fatal dive. Each of the releases references an “activity” to which each is meant to relate. The court noted that the August 29, 2009 release related to a series of six open water dives over a period of four days. Thus, the court found that the “activity” referenced in the August 29, 2010 release was meant to be the six open water dives. The court therefore noted that no evidence existed suggesting that, at the time the 2009 release was signed, the Diodatos contemplated the 2010 advance open water dive. Further, according to the dive instructor, the dive at issue in the April 14, 2010 release was a recreational shallow reef dive to prepare the customers for the advance open water dive the following day. The court further noted that the procedures for the advanced open water dive on April 15, 2010, required a different form of release, which covered additional potential hazards, such as boat travel, which did not appear on the 2009 and April 14, 2010 releases.

In its analysis, the court first noted that “[e]xculpatory clauses are disfavored and are enforceable only where and to the extent that the intention to be relieved from liability was made unclear and unequivocal and the wording must be so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away.” In addition, the court explained that a release containing exculpatory language is part of a commercial transaction having a discernible scope and term. Scope addresses the hazardous activity which the releaser has paid for and which the release insists must be at the releasor’s own risk, and term addresses the anticipated duration of the hazardous activity. The court found that a “pre-printed release signed for an introductory scuba certification class in shallow water would ordinarily have a different scope, level of risk, and cost than a deep water dive or offshore wreck dive . . . .” The evidence demonstrated that the 2009 and April 14, 2010 releases related to six open water reef dives and a shallow reek dive, respectively. The April 15, 2010 dive was to be a more advance open water dive, different than the activities contemplated in the 2009 and April 14, 2010 releases. In addition, the April 15, 2010 dive required a different form release, which contained an expanded definition of activities and notified the customer of diver accident insurance. Accordingly, the court determined that the case turned on the ambiguity in the term “activity” as used in the releases. Finding that the previously signed releases contemplated activities and risk different than what the Diodatos’ engaged in on April 15, 2010, the court ruled that the defense was not entitled to summary judgment based on the 2009 and April 14, 2010 releases.


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