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As mentioned above, negligence may be defined as:
the failure to use ordinary care under the circumstances in the management of one’s person, property, or business.
Judges throughout the land have decided that releases do not apply when the conduct of an individual “shocks the conscience.”
Such conduct is known as gross negligence. Loosely defined, gross negligence is:
an act or omission of an individual which was done maliciously, wantonly, oppressively, or in a completely reckless or callous manner, indifferent to the rights of others.
In applying the theory of “gross negligence” within the diving industry the following example is illustrative. A dive instructor may be found “grossly negligent” in failing to provide assistance or medical treatment for a student who obviously suffers a serious incident of central nervous system decompression illness. If a student has obviously been “bent” and an instructor shows more concern for finishing an open water class than seeking treatment for the injured student, such conduct may expose the instructor to liability even when armed with a signed, otherwise enforceable, release.
Differentiating negligence from gross negligence has been analogized to distinguishing between a fool and a damn fool. It is not an easy exercise. If the conduct shocks ones conscience, it is probably gross negligence.
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