Accident at Lake Rawlings Sunday 05/27/2012

[openmindOW]

I was wondering in a case like this, how well does the "Liability Waiver" that you sign before taking the class hold up.

As a practicing attorney, I deal with the issues of waivers from time to time.

There are many factors that can be involved, including the jurisdiction in question. In the US, waivers rarely, if ever, prevent a case from going to trial if there is an accusation of gross negligence.

 

[HIGHwing]

All one has to do is study the 1992 Virginia Supreme Court Case of Heitt v. Barcroft. As an aside, we addressed this issue in the breakout thread already. Seemed the prevailing wisdom, if I may quote the Court, "...the law in Virginia has been settled that an agreement entered into prior to any injury, releasing a tortfeasor from liability for negligence resulting in personal injury, is void because it violates public policy".

I'm no student of the law, but this decision has been repeatedly upheld in Virginia since Johnson's Adm'x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890). There's 120+ years of precedence right there. In my unqualified opinion that leaves little doubt as to the quality and validity of the legal instrument.

One doesn't need a law degree to figure out what that means. I don't think the court could have made it more evident how they feel about such agreements.

 

[hypertech]

Its not that clear cut. You are talking about negligence, and one of the big questions about negligence is what duty was owed that was breeched. The waiver may show an assumption of risk and diminish a duty owed. So, even if you can't waive negligence, it doesn't necessarily mean that a waiver has no value.

 

[boulderjohn]

Its not that clear cut. You are talking about negligence, and one of the big questions about negligence is what duty was owed that was breeched. The waiver may show an assumption of risk and diminish a duty owed. So, even if you can't waive negligence, it doesn't necessarily mean that a waiver has no value.

Exactly. The waiver prevents frivolous lawsuits in cases where there was no clear instructor misconduct.

For example, there is another current thread related to a diver death during instruction. It appears the student had a massive heart attack, and there is no indication that the instructor did anything wrong. The waiver pretty much prevents a lawsuit in that case.

I know that the waiver will not protect me if I screw up, but I won't instruct under any circumstances without one. I want that protection when I don't screw up.

 

[HIGHwing]

We're talking about the Commonwealth of Virginia here, and I choose to interpret the Supreme Court's decision exactly as it's written. I know you see all sorts of value in the form, so then you should have no trouble citing a case in the Commonwealth post 1890 where a pre-injury form was upheld. I'll give you a hint, look at a case involving Safeway food stores. You'll find the court upheld the pre-injury waiver for a very specific reason. That reason is NOT present in this case.

 

[hypertech]

We're talking about the Commonwealth of Virginia here, and I choose to interpret the Supreme Court's decision exactly as it's written. I know you see all sorts of value in the form, so then you should have no trouble citing a case in the Commonwealth post 1890 where a pre-injury form was upheld. I'll give you a hint, look at a case involving Safeway food stores. You'll find the court upheld the pre-injury waiver for a very specific reason. That reason is NOT present in this case.

Arm chair lawyering is dangerous.

If for nothing else, I bet your insurance policy says that if you don't have that waiver, they won't cover you at all. It costs money to respond to frivelous law suits too.

 

[Gills would be better]

Reading through these many posts, it's obvious something very egregious happened that led to the student diver's death.

But, I've also wondered about the flow of events that led to that death. With that said, perhaps someone here could shed some light.

The student was on her third dive, apparently on the second day of diving. During the first day, the class did the initial dive tour, concentrating on skills during the second dive; on the second day they had just about completed (or had completed) the skills during the third dive, which led to the tour.

At that point, based on performance, I would have already figured out if anyone was having problems - or felt uncomfortable enough - for me to focus on certain people. Also, you'd think that her husband is the one who should have been very attentive to his wife, his dive partner. He knew her the best, and should have been aware and attentive of any stress she might have had. Finally, if the viz was 10-15 feet, it's not great, but he certainly should have been within that range as her dive buddy. They say the viz was terrible at the bottom, but that was a result of kicking up silt. I have to wonder what transpired from the time the husband/wife team were together, to the time he lost her, and finally why he didn't immediately notify the instructor of his missing buddy, instead of lagging behind the group, looking for her himself.

I've taught other husband/wife dive buddy teams during Open Water classes, and normally have to pry them apart.

I dont' know, just seems rather odd.

Anyone have any info on this?

 

[HIGHwing]

I've taught other husband/wife dive buddy teams during Open Water classes, and normally have to pry them apart.

I dont' know, just seems rather odd.

Anyone have any info on this?

Interesting Poster. Joined from Northern Virginia, first post, claims to be an instructor, claims thousands of dives, interested enough to read all 30+ pages, and seems intent on creating a murder theory.

I know the working theory is "tursiops" is actually the store owner. Now who is this person?? Very interesting, indeed.

Arm chair lawyering is dangerous.

If for nothing else, I bet your insurance policy says that if you don't have that waiver, they won't cover you at all. It costs money to respond to frivelous law suits too.

For the record, I can't see how discussing written text, freely available, written by the high court for public consumption is more scary dangerous than people offering opinions about a fatal accident they did not see. I will accomodate your request for no other reason than I think you're correct about the insurance policy, but for a different fundamental reason. Most people don't realize there are over 40 ways the Professional Liability policies can sever. Let's all recognize this Professional Liability Policy actually severs the minute you break a standard.

[From insurance company website] "Exclusions: Insurance is not afforded under this policy...

AA. For any Claim arising out of any Event in which the insured left or allowed the uncertified student involved in the claim to be unattended during in-water instruction, tests, or exercises."

This stuff is covered extensively in the PADI Instructor Development Course, Risk Management Section. I don't think there's a lot to learn here, but it's certainly worth refershing your memory if you're going to be in the water with students.

 

[Sorrows]

. I have to wonder what transpired from the time the husband/wife team were together, to the time he lost her, and finally why he didn't immediately notify the instructor of his missing buddy, instead of lagging behind the group, looking for her himself.

Perhaps the husband couldn't get the instructor's attention? Viz was bad, the instructor was in front, leading them, duckling style. I know I'm alone on this--and there are an awful lot of DMs and Instructors here--but I still think it would have been helpful if the husband had had a noisemaker of some kind. I'm not sure it would have helped the lost diver--perhaps she was too panicked to have used one, but at the very least the husband could have alerted the instructor that there was a missing diver.

Of course, if there had been a DM in the back of that line the outcome would have (most likely) been completely different. That has to be the biggest fail, IMHO.

 

[AwkwardSwimmer]

Also, you'd think that her husband is the one who should have been very attentive to his wife, his dive partner. He knew her the best, and should have been aware and attentive of any stress she might have had. Finally, if the viz was 10-15 feet, it's not great, but he certainly should have been within that range as her dive buddy. They say the viz was terrible at the bottom, but that was a result of kicking up silt. I have to wonder what transpired from the time the husband/wife team were together, to the time he lost her, and finally why he didn't immediately notify the instructor of his missing buddy, instead of lagging behind the group, looking for her himself.

I've taught other husband/wife dive buddy teams during Open Water classes, and normally have to pry them apart.

I dont' know, just seems rather odd.

So, questioning why the buddy has acted the way he did keeps being brought up.

Yes, he did know her better than anyone else in the group, but he knew her better out of the water. It is a whole new ball game in the water.

How many students, or even certified divers struggle to tell their buddies, friends, even family members apart in a group of divers. Yes, the diver should have been trained in all of the proper procedures but were they? Did they show that they were competent in those skills and did they demonstrate that high level of awareness so many seem to be demanding of these students? Most likely not.

Despite any original plan of a formation they could have very easily ended up in some sort of ball or crowd. The husband very well might have assumed his buddy was just in the group of divers.

in the critiques, IMO, should be focused on the instructor and the way that the class was taught trained. With 15 feet of viz he sure should have been within range of his buddy. Being new to an environment such as diving it can be very difficult to locate anyone in the water. Someone could be right behind or right above you and for a new diver, or even a somewhat experienced diver could struggle to find them. Who else should have been within range of those divers and aware of where those divers were...the instructor!

The buddy may not have known how to communicate what was going on with the instructor. Also it keeps being brought up that the diver was trailing the group and that something was visibly wrong. Should the instructor not have noticed that a diver was lagging behind and clearly not comfortable? The husband would have communicated that his buddy was not with the group once they surfaced, it is egregious that it would have taken until this moment for the professional in the group to realize a diver was missing. Makes me wonder if he had left to go looking for his wife, could this have turned into a bigger tragedy...

To be a good and safe buddy takes awareness, understanding, buoyancy control, and so much more. It is perfected over years and years of diving. The open water dives are used to reenforce and evaluate the foundations of diving while under the supervision of a trained professional. Every diver is this group was still learning and we need to remember that.

A lot of this seems odd, the actions of the buddy do not.