Calgarian suing diver training organization

[swamp diver]

Would you complain to the guide or to the restaurant if the meal was bad?

Both especially if the guide had the restaurant rated as 5 star and the publisher values its rating system's reputation.

I once stayed in a hotel in Bolivia up in the mountains which was listed in the Lonely Planet (LP) guidebook. Just being in that guidebook is an endorsement for the hotel. The room was about 5 C at night so I called for some extra blankets and rather than bringing me blankets the front desk guy brought me a portable propane heater. I told the guy I would likely be poisoned by CO if I ran that unit in the small room. He looked puzzled and went and brought me additional blankets.

When I got home I wrote the Lonely Planet about the issue. They removed the hotel and put a warning in the guidebook because using a propane heater in hotel rooms was a common practice in this part of the world.

Unfortunately a few years later these two girls died from the same problem, and I suspect had they been using the LP series this likely would not have happened. Rating systems by guidebooks do make a difference and the end user expects the system to be transparent, accurate, and up to date.
2 Quebec students found dead in Bolivian hostel - World - CBC News


PADI had an air quality program with oversight of its 5 star facilities. The diving public used this rating system to find fill stations where they believed the risk of air contamination would be lower because these 5 star facilities were testing the compressed air quarterly. PADI was successfully sued in 2009 over a double CO fatality at one of its 5 star resorts following which they quietly disbanded the air quality oversight program but did not tell the diving public yet kept the same rating system in place.

PADI should have informed the diving public of the change in oversight and removed the rating system such that the diving public would have been made aware that there was no longer any formal air quality monitoring program.This did not happen and that is where the problem lies.

Analogous to a city testing its drinking water quality daily for E. coli contamination but in order to save money they stop testing and don't tell the city's residents. Many fall ill with E. coli 0157 and die of kidney failure. Had the city simply told its residents to boil the water no deaths would have occurred. Do you not think the city should be held liable?

 

[flots am]

Would you complain to the guide or to the restaurant if the meal was bad?

If a family member died because chef served poisoned chicken soup? I'd complain to both as well as the police and my lawyer.

 

[nimoh]

If a family member died because chef served poisoned chicken soup? I'd complain to both as well as the police and my lawyer.

would you sue the FDA because the restaurant passed their quality checks?

 

[Omisson]

The PADI 5 star rating did previously imply that a PADI resort or dive center was testing their compressed air quality on a regular (quarterly) basis. Many divers knew this fact and would head to a PADI 5 star fill station because usually there was a recent air certificate on the wall. Quarterly testing was better than the no air testing found at other facilities. In fact in order to be certified as a 5 star dive center the PADI affiliate owner would have to send his/her first year of testing results to PADI headquarters. After that the 5 star centers were instructed to keep the quarterly results "on file" which clients could ask to see.

Trace Analytics also had a special package of quarterly tests for PADI facilities in order to facilitate this quarterly testing so to say that that the 5 star rating previously had no relationship to the PADI air quality program is false. You can see here that Trace still has not updated its own web site and it still states that PADI requires quarterly testing which is not the case.
http://www.airchecklab.com/Services/Breathing-Air/Sport-Diving


The problem arose in about 2009 when PADI and one of its 5 star affiliates were successfully sued for a similar bad air CO double fatality in Roatan. Following this settlement PADI quietly got out of the air testing oversight business, but they did not notify the diving public of this very material change. What PADI should have done is announce very publicly that their 5 star facilities were no longer going to be required to partake in quarterly air testing in order that the diving public could take the necessary precautions such as carrying a personal CO monitor to protect themselves.


View attachment 176763

Legal Liability:

1) There was a Duty
2) There was a Breech of that duty
3) The Breech was Proximate cause of injury
4) The Injury has caused demonstrable Damage

How can one establish PADI had a legal duty to monitor air quality at an independently owned and operated foreign dive shop?

Unless they explicitly warranteed such (which they no longer do) or other agencies offer a similar warrantee (only ANDI does) to meet an "industry standard" (it doesn't) then a court would be required to direct a verdict in favor of PADI.

A local court may chose to ignore the law (judicial activism) and allow a jury to hear and reach a verdict - but an appellate court SHOULD reverse such a decision.

It comes down to scope of control, duty and foreseeability- the liability- in this case - is with the dive shop- not an organization that provides individuals with scuba instruction.

Vicarious Liability MAY attach if the gas was bad during a PADI training class conducted by the shops instructor or if a PADI DM was booked through the shop for a PADI local adventure dive under respondiat superior.

---------- Post added February 12th, 2014 at 03:17 PM ----------

If a family member died because chef served poisoned chicken soup? I'd complain to both as well as the police and my lawyer.

Would the culinary school that taught the chef to cook be responsible if they graduated him summa cum laude and gave him the Top Chef award?

I think not.

 

[AggieDiver]

Wow...look at all these strawmen. Good thing I don't have a hay allergy.

The bottom line is that PADI is not independent of the divers. They have voluntarily placed themselves in a position of authority by offering dive training. In that training, they warn about the possibility of bad air. I don't know if it is specifically mentioned in the training curriculum or manual, but I have had several PADI instructors mention as part of their courses the possible pathways to get contaminated air, starting with poorly placed or maintained compressors. So PADI has placed themselves voluntarily in a position of training divers, including discussing bad air scenarios related to compressors, and has received compensation for that training. Separate from that training, they license various locations to call themselves 5-star facilities, again voluntarily, likely in return for some compensation or level of business provided to PADI by the shop.

So in two separate situations, PADI has accepted compensation from parties for 1) voluntarily offering dive training that included discussing bad air, and 2) allowing shops to advertise themselves as being "PADI 5-star" facilities. Along the way, PADI has decided in response to another court case that they no longer wish to oversee air testing at their "5-star" facilities. Their "duty" at that point is to make their membership and the divers they have trained aware of that change. Up to 2009, they WERE overseeing air testing, and then they quietly decided to no longer do so, without notifying their trained divers or the public, and without altering their "rating" system.

So I see PADI as voluntarily accepting responsibility for the quality of the shop by allowing the shop to call themselves a PADI 5-star facility as part of a business arrangement that was used by the shop to encourage PADI trained divers to use the shop; and they voluntarily accepted responsibility for properly training divers how to safely dive, including how to recognize bad air or avoid it, in return for compensation from the diver. After recognizing the issue of CO in 2009, they did not alter their training (which advises divers to smell the air even though CO is odorless, and fumes from a compressor flash could be filtered out, while CO can remain in the air), but they did decide to drop their oversight of testing, without announcing it or warning their members and trained divers of the change. Because they made a change to their own policies, they can't claim they were unaware of the issue, but the fact that they did not announce the change to their policies, change their rating system, or change their training materials suggests to me that they failed in their voluntarily accepted duties to their shops and their divers.

With all that said, I don't necessarily think monetary damages from PADI are warranted or justified. I think there is and should be a limitation on how much PADI can be held accountable for financially...but that doesn't mean that there is no finding that the court can place against them. I would like to see a settlement or decision from the court that forces PADI to stop rating shops as a 5 star facility unless they are willing to accept responsibility for what that rating implies. I would like to see PADI require shops to have CO detection system on their compressors in order to be a PADI facility. And last, I would like to see their training program discuss the issue of CO in a realistic way and encourage the use of testing either by the provider or the diver at the time of delivery, just as they do with Nitrox classes and fills. I can't read the mind of Mr. Cross, but unless there is some smoking gun that implies PADI knew of specific CO problems at this particular shop, I can't see him really having the motive of getting large financial penalties from PADI. I suspect he just wants his wife's death to lead to a positive change that saves somebody else's life down the road.

 

[nimoh]

Wow...look at all these strawmen. Good thing I don't have a hay allergy.

The bottom line is that PADI is not independent of the divers. They have voluntarily placed themselves in a position of authority by offering dive training. In that training, they warn about the possibility of bad air. I don't know if it is specifically mentioned in the training curriculum or manual, but I have had several PADI instructors mention as part of their courses the possible pathways to get contaminated air, starting with poorly placed or maintained compressors. So PADI has placed themselves voluntarily in a position of training divers, including discussing bad air scenarios related to compressors, and has received compensation for that training. Separate from that training, they license various locations to call themselves 5-star facilities, again voluntarily, likely in return for some compensation or level of business provided to PADI by the shop.

So in two separate situations, PADI has accepted compensation from parties for 1) voluntarily offering dive training that included discussing bad air, and 2) allowing shops to advertise themselves as being "PADI 5-star" facilities. Along the way, PADI has decided in response to another court case that they no longer wish to oversee air testing at their "5-star" facilities. Their "duty" at that point is to make their membership and the divers they have trained aware of that change. Up to 2009, they WERE overseeing air testing, and then they quietly decided to no longer do so, without notifying their trained divers or the public, and without altering their "rating" system.

So I see PADI as voluntarily accepting responsibility for the quality of the shop by allowing the shop to call themselves a PADI 5-star facility as part of a business arrangement that was used by the shop to encourage PADI trained divers to use the shop; and they voluntarily accepted responsibility for properly training divers how to safely dive, including how to recognize bad air or avoid it, in return for compensation from the diver. After recognizing the issue of CO in 2009, they did not alter their training (which advises divers to smell the air even though CO is odorless, and fumes from a compressor flash could be filtered out, while CO can remain in the air), but they did decide to drop their oversight of testing, without announcing it or warning their members and trained divers of the change. Because they made a change to their own policies, they can't claim they were unaware of the issue, but the fact that they did not announce the change to their policies, change their rating system, or change their training materials suggests to me that they failed in their voluntarily accepted duties to their shops and their divers.

With all that said, I don't necessarily think monetary damages from PADI are warranted or justified. I think there is and should be a limitation on how much PADI can be held accountable for financially...but that doesn't mean that there is no finding that the court can place against them. I would like to see a settlement or decision from the court that forces PADI to stop rating shops as a 5 star facility unless they are willing to accept responsibility for what that rating implies. I would like to see PADI require shops to have CO detection system on their compressors in order to be a PADI facility. And last, I would like to see their training program discuss the issue of CO in a realistic way and encourage the use of testing either by the provider or the diver at the time of delivery, just as they do with Nitrox classes and fills. I can't read the mind of Mr. Cross, but unless there is some smoking gun that implies PADI knew of specific CO problems at this particular shop, I can't see him really having the motive of getting large financial penalties from PADI. I suspect he just wants his wife's death to lead to a positive change that saves somebody else's life down the road.

firstly, there is a big difference between a strawman argument and an analogy.

secondly, PADI doesn't train divers, instructors do.

 

[NAM001]

tracy look at the level required to activate a hime unit, 600 ppm i think, for some and with scuba we are looking for single digit readings

Good for him! Maybe it will encourage the dive training organizations to include CO testing. Tasting and smelling the gas is pretty old-fashioned and inadequate.
We don't have a tester ourselves but I plan to get one before our next dive trip out of country.

---------- Post added December 17th, 2013 at 07:33 AM ----------

I have a question. Why wouldn't the battery operated CO detectors for campers, house and vehicles not work? They are $12 at Home Depot and detect levels at least as low as 5 ppm. Are they not accurate enough?

---------- Post added February 12th, 2014 at 04:18 PM ----------

I am not so sure of the example you gave. Let me give you one.

You contract for electrical work for your home. the contractor is too overloaded to do it so he subs it out. Weeks after the job is done the house burns down and is determined that faulty wireing, (specifically the sub'd work) is responsible. Do you the home owner have a beef sith the sub guy or the one you contracted with? It would be my position that if the contractor subs the work out, he is doing so with the guarentee to the home owner , whether arranged with the homeowner or not, that the work is the same quality as he would do. In short the sub contractor would be acting as an employee of the contractor making the contractor still responsible for the faulty work.

Legal Liability:

1) There was a Duty
2) There was a Breech of that duty
3) The Breech was Proximate cause of injury
4) The Injury has caused demonstrable Damage

How can one establish PADI had a legal duty to monitor air quality at an independently owned and operated foreign dive shop?

Unless they explicitly warranteed such (which they no longer do) or other agencies offer a similar warrantee (only ANDI does) to meet an "industry standard" (it doesn't) then a court would be required to direct a verdict in favor of PADI.

A local court may chose to ignore the law (judicial activism) and allow a jury to hear and reach a verdict - but an appellate court SHOULD reverse such a decision.

It comes down to scope of control, duty and foreseeability- the liability- in this case - is with the dive shop- not an organization that provides individuals with scuba instruction.

Vicarious Liability MAY attach if the gas was bad during a PADI training class conducted by the shops instructor or if a PADI DM was booked through the shop for a PADI local adventure dive under respondiat superior.

---------- Post added February 12th, 2014 at 03:17 PM ----------



Would the culinary school that taught the chef to cook be responsible if they graduated him summa cum laude and gave him the Top Chef award?

I think not.

 

[DandyDon]

tracy look at the level required to activate a hime unit, 600 ppm i think, for some and with scuba we are looking for single digit readings

I think that was a typo for "home." Home units are not that insensitive, but they do not react to single digits, no. If they did, they'd get thrown out for false alarms. They're also so to react.

 

[AggieDiver]

firstly, there is a big difference between a strawman argument and an analogy.

secondly, PADI doesn't train divers, instructors do.

Right, a strawman argument is one created so that it can be ceremonially defeated in a way that the argument it is allegedly analogous to cannot be. I see everybody throwing out all these "analogies" that have no real relationship to the facts involved in the case and all I can think is "straw man". I mean really...we are going to compare culinary instruction to dive certifications? C'mon already!

As for your second point, so all PADI is responsible for is printing plastic cards with our pictures on them? Nothing else? They don't force divers to buy their training materials in order to get their C-card? They don't force instructors performing training under their name to use those materials as the basis for the courses they teach? They don't call what they hand out a "certification card" implying that you have learned a set of knowledge and skills sufficient to dive safely? They don't publicize a list of "5-star" dive facilities?

Sure, instructors do the actual hands on instruction...but everything they are doing is being done under the auspices of the training organization that trained them, and that will be providing certification cards to the divers who pass the training program they prescribe. I suppose that the claim on the PADI website that they are "the world’s leading scuba diving training organization" and that PADI is "The way the world learns to dive" are meant to imply that they don't train any divers or take any responsibility for their training? Pull on my other leg, this one is long enough already.

 

[Omisson]

tracy look at the level required to activate a hime unit, 600 ppm i think, for some and with scuba we are looking for single digit readings



---------- Post added February 12th, 2014 at 04:18 PM ----------

I am not so sure of the example you gave. Let me give you one.

You contract for electrical work for your home. the contractor is too overloaded to do it so he subs it out. Weeks after the job is done the house burns down and is determined that faulty wireing, (specifically the sub'd work) is responsible. Do you the home owner have a beef sith the sub guy or the one you contracted with? It would be my position that if the contractor subs the work out, he is doing so with the guarentee to the home owner , whether arranged with the homeowner or not, that the work is the same quality as he would do. In short the sub contractor would be acting as an employee of the contractor making the contractor still responsible for the faulty work.

Completely inaccurate analogy- a sub contractor is in PRIVITY with the contractor who is PRIVITY with you.

The obligations are clearly connected.

PADI is NOT in PRIVITY with you when you dive - except during training- and then it is through the PRIVITY of their connection to the instructor to you.

Similarly PADI is not in privity with a dive shop's non- PADI activities (pick up service, regulator repair service, lunch supply). Nor is it responsible for dive boat trips or gear rental UNLESS such takes place during a PADI training event.

This isn't opinion, it's black letter law.

---------- Post added February 12th, 2014 at 06:14 PM ----------

Right, a strawman argument is one created so that it can be ceremonially defeated in a way that the argument it is allegedly analogous to cannot be. I see everybody throwing out all these "analogies" that have no real relationship to the facts involved in the case and all I can think is "straw man". I mean really...we are going to compare culinary instruction to dive certifications? C'mon already!

As for your second point, so all PADI is responsible for is printing plastic cards with our pictures on them? Nothing else? They don't force divers to buy their training materials in order to get their C-card? They don't force instructors performing training under their name to use those materials as the basis for the courses they teach? They don't call what they hand out a "certification card" implying that you have learned a set of knowledge and skills sufficient to dive safely? They don't publicize a list of "5-star" dive facilities?

Sure, instructors do the actual hands on instruction...but everything they are doing is being done under the auspices of the training organization that trained them, and that will be providing certification cards to the divers who pass the training program they prescribe. I suppose that the claim on the PADI website that they are "the world’s leading scuba diving training organization" and that PADI is "The way the world learns to dive" are meant to imply that they don't train any divers or take any responsibility for their training? Pull on my other leg, this one is long enough already.

You simply fail to understand the lack of a causal relationship in LAW between training and certifying scuba instructors (scuba training) and providing goods & services (gear rental and air fills)

Absent an industry standard that correlates this (which there isn't) or a written warrantee or contractual obligation (which there isn't) there is no LEGAL duty.

That's not an opinion- it's just the law.