In recent news are the deeply troubling implosion of OceanGate’s Titan submersible and the subsequent death of its five passengers at some point during its 12,500-foot descent to the site of the infamous wreckage of the Titanic.

It is believed that each of the five passengers signed waivers of liability, which begs the question of whether OceanGate can still be held liable for the death of these passengers in spite of the waiver.

Waivers of liability are incredibly common and often are obligatory prior to participating in inherently risky activities. For example, if you were to go skiing, you would likely need to sign a waiver of liability that prohibited you from bringing suit against the ski company for risks inherent in skiing. As such, if you were to fall and break your arm as you descended a ski slope, the liability waiver would likely shield the ski company from liability. If, however, you were skiing down a hill, your rental skis both snapped in half, and you fell and broke your arm, the waiver of liability would unlikely be effective. This is because when you signed the waiver of liability, you were not waiving the right to sue for injuries suffered due to faulty ski equipment, as that is not an inherent risk in the activity in the same way that falling is. Though this example is fairly simple, it illustrates the types of liabilities that a participant in an inherently risky activity can effectively waive.

OceanGate’s waiver of liability mentions that “[a] portion of the operation will be conducted inside an experimental submersible vessel. The experimental submersible vessel has not been approved or certified by any regulatory body and may be constructed of materials not widely used in human-occupied submersibles.”

For a waiver to be effective at shielding a company from liability as a result of an injury, that injury must fall within the inherent risks of the activity, the release form must specify the exact risk the participant assumes, and the damage must not result from an intentional or grossly negligent act of the company. Courts will often reject liability waivers if there is evidence of gross negligence or an undisclosed hazard arises during the activity. Additionally, courts will consider various other factors, such as the nature of the risk, the knowledge and understanding of the injured party, any unequal bargaining power, and public policy considerations when determining the applicability and extent of the waiver of liability.

Whether OceanGate’s waiver of liability is effective hinges on several factors. First, it is critical to determine whether the accident occurred as a result of the gross negligence of OceanGate. A defendant is grossly negligent if they undertake conduct with reckless neglect as to its impact on the life or property of another. Critical to this determination could be a 2018 case between OceanGate and a former employee who raised safety concerns about the company’s submersibles and who was subsequently ignored and fired. Additionally, if OceanGate made statements guaranteeing the safety of the expedition and the submersible before the trip with reckless disregard for the falsity of those statements, it could render the waiver of liability ineffective in shielding the corporation from liability. On the other hand, OceanGate could argue the waiver of liability will effectively protect them because they were not grossly negligent and fully described the risk of the trip – that is, they described the submersible vessel as experimental and said any regulatory body did not approve it.