An Open Letter of Personal Perspective to the Diving Industry by NetDoc

[Wookie]

Possibly because if they go to lower ratios the resorts will go back to what the did in the 80's and early 90's...offer non agency branded resort classes. Which means no more selling the materials, no more HUGE database of DSD divers being accumulated(which has a value on it's own merits). In short, money.

Poof!!! Liability gone. $800k in the pocket. No one questions standards, no one accuses PADI of throwing their instructor under the bus.

 

[cerich]

Poof!!! Liability gone. $800k in the pocket. No one questions standards, no one accuses PADI of throwing their instructor under the bus.

Mostly, but to be honest, if the instructor teaching the resort non agency branded DSD is a PADI instr. they will still get dragged in but the have a better defense for sure.

 

[boulderjohn]

Poof!!! Liability gone. $800k in the pocket. No one questions standards, no one accuses PADI of throwing their instructor under the bus.

Funny how that worked out in the case a couple of years ago to which I alluded earlier.

Two DMs were participating in a 3-tank dive on a dive boat with a local club. They were not employees of the boat--they were part of the club. The trip was not sanctioned by any agency. The only thing they did was call the roll after each dive to make sure the divers returned. they managed to screw that up, and one of the divers drifted for a day before being found.

There was no class involved. There were no standards involved. Calling the roll is not part of the instructional program it takes to become a DM. But the DMs were certified by PADI, so PADI was sued anyway. PADI stuck with the lawsuit and refused to settle.

Poof! They were found liable. $2 million out of the pocket.

How do you explain that?

 

[cerich]

Funny how that worked out in the case a couple of years ago to which I alluded earlier.

Two DMs were participating in a 3-tank dive on a dive boat with a local club. They were not employees of the boat--they were part of the club. The trip was not sanctioned by any agency. The only thing they did was call the roll after each dive to make sure the divers returned. they managed to screw that up, and one of the divers drifted for a day before being found.

There was no class involved. There were no standards involved. Calling the roll is not part of the instructional program it takes to become a DM. But the DMs were certified by PADI, so PADI was sued anyway. PADI stuck with the lawsuit and refused to settle.

Poof! They were found liable. $2 million out of the pocket.

How do you explain that?

were PADI found 100% at fault or get proportioned a %? I am FAR from a lawyer but I have heard that if one party found even 1% liable and has money and the other liable parties have no funds, the one with money gets to pay the freight. That could be COMPLETELY incorrect.

 

[redacted]

Funny how that worked out in the case a couple of years ago to which I alluded earlier.

Two DMs were participating in a 3-tank dive on a dive boat with a local club. They were not employees of the boat--they were part of the club. The trip was not sanctioned by any agency. The only thing they did was call the roll after each dive to make sure the divers returned. they managed to screw that up, and one of the divers drifted for a day before being found.

There was no class involved. There were no standards involved. Calling the roll is not part of the instructional program it takes to become a DM. But the DMs were certified by PADI, so PADI was sued anyway. PADI stuck with the lawsuit and refused to settle.

Poof! They were found liable. $2 million out of the pocket.

How do you explain that?

I would have to guess that the judge or jury decided that PADI was deficient in the training and/or testing they provided, for a fee, when they CERTIFIED these two people to be qualified Dive Masters.

 

[Omisson]

I seriously doubt if they could have expected to successfully defend their standards/training. I figured that is why they were willing to settle.

With one instructor and multiple students if one student gets away, contact and control are at serious risk. If that does happen, it may require a qualified assistant to avoid breaching standards.

No you totally missed the point. It was made in the context of Wookies point-

The instructors' actions are so egregious that they are legally untenable from a defense perspective. If PADI didn't sever liability they could be in (joint and severally) regardless of apportionment of fault or worse blamed for the bad instructor by a jury who finds some "agency" which doesn't really exist in the relation between training orgs and their instructors.

Like I said at the outset- I think Brian got bad info or bad legal counsel. PADIs attorneys were right to settle out to avoid precedent and further damage- but they should have immediately disclosed the settlement. I'm confused why Willis didn't disclaim the instructor coverage given the huge number of training and safety violations.

As for the PADI DSD training standards (ratios) as long as they are in line with RSTC promulgated standards I think they are safe- because the industry norms are usually the legal standard.

Should those change? Maybe 2:1 in open water - but I can also see the justification for 4:1 with discretion- think 10 foot reef on a Caribbean blue inlet....

 

[boulderjohn]

were PADI found 100% at fault or get proportioned a %? I am FAR from a lawyer but I have heard that if one party found even 1% liable and has money and the other liable parties have no funds, the one with money gets to pay the freight. That could be COMPLETELY incorrect.

I don't know the answer for sure, but I think I have an idea, as follows.

PADI was burned so badly by that experience that it has changed all of its liability waivers in the hope of keeping it from happening again.

Why?

The theory under which they were sued was that the DMs were "agents and/or employees" of PADI. They were obviously not employees, so the conclusion was that by being paid up members of PADI, they were agents of PADI and therefore acting on behalf of PADI. If they had also had membership in SDI/TDI (as I do), then I presume SDI/TDI could have been included in the suit for the same reason. Thus, in the hypothetical situation Wookie described, even if here is no PADI course and no PADI standards for it, PADI could still be sued if the instructor is a PADI member.

So, to go back and read the complaints in this case. Why was PADI included, according to what they say? Because the instructor was said to be "an agent and/or employee" of PADI.

Sound familiar?

 

[Omisson]

were PADI found 100% at fault or get proportioned a %? I am FAR from a lawyer but I have heard that if one party found even 1% liable and has money and the other liable parties have no funds, the one with money gets to pay the freight. That could be COMPLETELY incorrect.

If Utah is a "joint and several" liability state then yes- any liability means you can be forced to pay the full freight - then sue the codefendants in indemnity to pay you back.

It's why ambulance chasers always try and find a "deep pocket" to add to a lawsuit- and why they can make money to settle even a frivolous case.

If this case were not fraught with instructor errors it would be easier to point to the parents and doctors to assign blame.... And thus justify the Willis decision to go forward and try the case.

---------- Post added January 5th, 2015 at 06:54 PM ----------

I would have to guess that the judge or jury decided that PADI was deficient in the training and/or testing they provided, for a fee, when they CERTIFIED these two people to be qualified Dive Masters.

And you'd be wrong again.

They were found liable through agency law. That the DMs were acting as agents of PADI by virtue of being PADI DMs.

It is a lousy decision and bad precedent for any sports training agency - it's why PADI created new non agency disclosures and waivers.

 

[boulderjohn]

If this case were not fraught with instructor errors it would be easier to point to the parents and doctors to assign blame.... And thus justify the Willis decision to go forward and try the case.

That probably explains why SDI /Willis is trying to hard to say that the instructor violated no standards. If the instructor violated standards, he loses, and they lose. If they can instead get people to believe that the instructor did not violate standards and that the standards themselves are the issue, then they win and PADI loses.

 

[Omisson]

I don't know the answer for sure, but I think I have an idea, as follows.

PADI was burned so badly by that experience that it has changed all of its liability waivers in the hope of keeping it from happening again.

Why?

The theory under which they were sued was that the DMs were "agents and/or employees" of PADI. They were obviously not employees, so the conclusion was that by being paid up members of PADI, they were agents of PADI and therefore acting on behalf of PADI. If they had also had membership in SDI/TDI (as I do), then I presume SDI/TDI could have been included in the suit for the same reason. Thus, in the hypothetical situation Wookie described, even if here is no PADI course and no PADI standards for it, PADI could still be sued if the instructor is a PADI member.

So, to go back and read the complaints in this case. Why was PADI included, according to what they say? Because the instructor was said to be "an agent and/or employee" of PADI.

Sound familiar?

This is why I don't think Brian was given all the facts. The implication for anyone in the scuba industry if there's agency liability is staggering and crippling.

I'm willing to bet this whole storm of controversy is the fault of far more hubris and bad counsel than any ill intent on Carney/ITI- and PADI just made a target of convenience...