Calgarian suing diver training organization

[AggieDiver]

I don't think that is as black and white as you are claiming. There is an implied warrantee when PADI takes money to train a diver (including telling them about bad air and bad air fill stations) and then directs that diver to a shop via their list of "5-star" locations. If they don't explicitly and clearly say in their materials that the 5-star rating is NOT an indication of quality or safety, then they have implied that it is to their trainees via the training they provided for a fee. If they had not covered air testing in the shop reviews prior to 2009, the implied warrantee idea would be a very weak argument. But the fact is that they DID review testing at shops prior to 2009, so they WERE in fact including a warrantee of proper air testing as part of their ratings previous to 2009. The fact that they changed their policies after 2009 with no notice or announcement to the public indicates that they wanted divers to continue assuming that the 5-star rating represented quality air testing policies, even though it no longer did. While the diver has no paper copy of a document stating that PADI has a duty to test their air, the combination of PADI's actions and their lack of publicity for their change post 2009 implies a warrantee of quality air to divers they trained. No way to tell if a judge will rule that implied warrantee to be enough to carry the case forward or not; but just because it wasn't written down and signed by PADI, doesn't mean that they didn't mislead people to assume that the 5-star rating meant something that it did not.

 

[flots am]

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

The FDA doesn't put a big "FDA Five Star Restaurant" sticker on the front door of the restaurant.

If they did, you can bet your ass I'd sue if I got poisoned.

---------- Post added February 12th, 2014 at 06:51 PM ----------

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,

It's right in the book and I assume the online class. They warn of the possibility of bad gas and then give only ineffective procedures for testing (taste/smell).

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.

You're apparently only considering contract law. There are any number of other avenues including fraud and negligence.

The OW class teaches how to avoid CO poisoning using completely ineffective means. It's no different than a doctor teaching a teenager about birth control by telling girl to "think happy thoughts".

There is simply no basis in science for avoiding CO poisoning using the methods they teach.

 

[AggieDiver]

The FDA doesn't put a big "FDA Five Star Restaurant" sticker on the front door of the restaurant.

If they did, you can bet your ass I'd sue if I got poisoned.

It is worse than that...the equivalent situation would be the fda placing a list on their website and recommending only eating at places on their list.

 

[Omisson]

The FDA doesn't put a big "FDA Five Star Restaurant" sticker on the front door of the restaurant.

If they did, you can bet your ass I'd sue if I got poisoned.

---------- Post added February 12th, 2014 at 06:51 PM ----------



It's right in the book and I assume the online class. They warn of the possibility of bad gas and then give only ineffective procedures for testing (taste/smell).





You're apparently only considering contract law. There are any number of other avenues including fraud and negligence.

The OW class teaches how to avoid CO poisoning using completely ineffective means. It's no different than a doctor teaching a teenager about birth control by telling girl to "think happy thoughts".

There is simply no basis in science for avoiding CO poisoning using the methods they teach.

I haven't "forgotten" anything. With the exception of negligence these are ALL contract claims.

I have real world trial experience in the litigation capital of the universe. I'm telling you the legal REALITY. You don't have to like reality... you are entitled to your own opinion... but not your own facts.

Fraud? Good luck proving fraud and its necessary component scienter. Not gonna ever happen.
Negligence? YOU STILL NEED: duty, breech of duty, proximate cause, and damage.
'
You will NEVER create a duty out of thin air. it must arise from either:

express warranty
implied warranty
contractual obligation
standards/norms of the industry

you can chuck out EVERY one of the above except "implied warranty".... not even a remote chance at any of them fitting.

To succeed on the ONLY THEORY that has a colorable claim, "implied warranty" you must show:


1) reasonable reliance of the warranty
2) no express disclaimers
3) no industry standard derogation


must conform to the standards of the trade as applicable to the contract for sale.
fit for the purposes such goods are ordinarily used, even if the buyer ordered them for use otherwise
must be uniform as to quality and quantity, within tolerances of the contract for sale
must be packed and labeled per the contract for sale
must meet the specifications on the package labels, even if not so specified by the contract for sale.

None of these conditions can be met with the distribution of AIR in a dive shop. because they are a separate GOODS and SERVICES component of diving unrelated to the TRAINING of divers.

---------- Post added February 12th, 2014 at 10:04 PM ----------

It is worse than that...the equivalent situation would be the fda placing a list on their website and recommending only eating at places on their list.

except PADI is a PRIVATE organization who's SOLE corporate purpose is scuba diving EDUCATION. it is not dive shop operation, scuba equipment rental, or any other activity you WANT it to be. And THAT is the reason why this absurd comparison is utterly without legal merit....

---------- Post added February 12th, 2014 at 10:07 PM ----------

I don't think that is as black and white as you are claiming. There is an implied warrantee when PADI takes money to train a diver (including telling them about bad air and bad air fill stations) and then directs that diver to a shop via their list of "5-star" locations. If they don't explicitly and clearly say in their materials that the 5-star rating is NOT an indication of quality or safety, then they have implied that it is to their trainees via the training they provided for a fee. If they had not covered air testing in the shop reviews prior to 2009, the implied warrantee idea would be a very weak argument. But the fact is that they DID review testing at shops prior to 2009, so they WERE in fact including a warrantee of proper air testing as part of their ratings previous to 2009. The fact that they changed their policies after 2009 with no notice or announcement to the public indicates that they wanted divers to continue assuming that the 5-star rating represented quality air testing policies, even though it no longer did. While the diver has no paper copy of a document stating that PADI has a duty to test their air, the combination of PADI's actions and their lack of publicity for their change post 2009 implies a warrantee of quality air to divers they trained. No way to tell if a judge will rule that implied warrantee to be enough to carry the case forward or not; but just because it wasn't written down and signed by PADI, doesn't mean that they didn't mislead people to assume that the 5-star rating meant something that it did not.

How does PADI "direct" a diver? Because it offers information on its web site? So if it direected you to jump off a bridge on its web site, they are liable for you jumping off a bridge? I think not.
There is most certainly a way to tell if a judge will or won't do something (generally) its called COMMON LAW PRECEDENT. And its NOT there in circumstances like this, no matter how hard you wish it was.

 

[flots am]

You will NEVER create a duty out of thin air. it must arise from either:

express warranty
implied warranty
contractual obligation
standards/norms of the industry

you can chuck out EVERY one of the above except "implied warranty".... not even a remote chance at any of them fitting.

To succeed on the ONLY THEORY that has a colorable claim, "implied warranty" you must show:


1) reasonable reliance of the warranty
2) no express disclaimers
3) no industry standard derogation

Obviously, as an attorney, you can make this go away:

From PADI's website. Bold mine.

"PADI Five Star Dive Center PADI Five Star Dive Center Membership is awarded to progressive PADI Dive Shops that excel in providing scuba divers with a full range of scuba certification programs, scuba gear selection, and scuba experience opportunities. To qualify as PADI Five Star Dive Center, a dive shop must meet elevated service and business standards and both promote and offer only PADI scuba diving lessons as their recreational scuba diver training. These dive shops also actively promote underwater environmental awareness and embrace the PADI System of diver education, with a commitment to providing quality training, products, services and experiences."

Although I'm not an attorney, as a normal human, there is no planet on which providing poison gas to your customer qualifies as "elevated service and business standards", or where teaching known-wrong, non-scientific methods of detecting poison gas, is legal.

 

[Omisson]

Obviously, as an attorney, you can make this go away:

From PADI's website. Bold mine.

"PADI Five Star Dive Center PADI Five Star Dive Center Membership is awarded to progressive PADI Dive Shops that excel in providing scuba divers with a full range of scuba certification programs, scuba gear selection, and scuba experience opportunities. To qualify as PADI Five Star Dive Center, a dive shop must meet elevated service and business standards and both promote and offer only PADI scuba diving lessons as their recreational scuba diver training. These dive shops also actively promote underwater environmental awareness and embrace the PADI System of diver education, with a commitment to providing quality training, products, services and experiences."

Although I'm not an attorney, as a normal human, there is no planet on which providing poison gas to your customer qualifies as "elevated service and business standards", or where teaching known-wrong, non-scientific methods of detecting poison gas, is legal.

Once again, endorsement is not regulation or responsibility for action.

You can try to IMPLY PADI has an obligation to police the "goods" component of a dive shop.

What I am telling you is that in the legal liability realm you lack a sufficient nexus for the claim.

In fact, if such a claim were to be permitted - every single scuba training org would fold up shop- because the potential liability would be beyond their ability to pay out. It is only because PADI has a deep pocket that such potential for suit exists.

You know what's NOT in that quote? Any express warranty of equipment rentals, gas fills or other services- it's actually an express ENDORSEMENT- which creates no liability. PADI is giving them a theatre critics review... Skewed of course because they use their product.

But none the less it's merely that : a review not a monitoring agreement nor a warranty or a regulatory service... Hence no liability.

Again- that's not to say a judge may not ignore the law and side with the emotion of the claim- only that is bad law and violative of legal precedence.


Guess you think the moron who put a mcdonalds coffee cup in his lap while driving was entitled to the $50 million dollar award he got too, huh? Never mind putting a cup of coffee in your lap while driving is stupid and begs to be spilled... But hey Mickey-D us a deep pocket they deserve the hit. Of course in appeal that award was drastically reduced. Because emotions over road the law. At least there- the duty to provide a safe travel cup was created by serving people at a drive through and corporate mcdonalds directly franchises the local shops to sell the product.

Very unlike the situation here where PADI doesn't have anything to do with gear and equipment sales.

 

[Lorenzoid]

Can I get CLE credit for reading this?

 

[redacted]

Once again, endorsement is not regulation or responsibility for action.

You can try to IMPLY PADI has an obligation to police the "goods" component of a dive shop.

What I am telling you is that in the legal liability realm you lack a sufficient nexus for the claim.

In fact, if such a claim were to be permitted - every single scuba training org would fold up shop- because the potential liability would be beyond their ability to pay out. It is only because PADI has a deep pocket that such potential for suit exists.

You know what's NOT in that quote? Any express warranty of equipment rentals, gas fills or other services- it's actually an express ENDORSEMENT- which creates no liability. PADI is giving them a theatre critics review... Skewed of course because they use their product.

But none the less it's merely that : a review not a monitoring agreement nor a warranty or a regulatory service... Hence no liability.

Again- that's not to say a judge may not ignore the law and side with the emotion of the claim- only that is bad law and violative of legal precedence.


Guess you think the moron who put a mcdonalds coffee cup in his lap while driving was entitled to the $50 million dollar award he got too, huh? Never mind putting a cup of coffee in your lap while driving is stupid and begs to be spilled... But hey Mickey-D us a deep pocket they deserve the hit. Of course in appeal that award was drastically reduced. Because emotions over road the law. At least there- the duty to provide a safe travel cup was created by serving people at a drive through and corporate mcdonalds directly franchises the local shops to sell the product.

Very unlike the situation here where PADI doesn't have anything to do with gear and equipment sales.

It would seem to me that all PADI will have to do is demonstrate that the shop met PADI's stated criteria for their award when it was given.

 

[flots am]

Guess you think the moron who put a mcdonalds coffee cup in his lap while driving was entitled to the $50 million dollar award he got too, huh?

Actually yes. I would think you would be familiar with the case. Assuming you're referring to the publicized case, it was a 79 year old woman not a guy, and the award was around $500K, but then there was an undisclosed settlement after that. She received 3rd degree burns and required years of skin grafts and surgery.

McDonalds intentionally served it's coffee at a temperature that was hotter than anybody else, and continued to do so even though it had been notified about numerous people being severely burned on a regular basis. In fact, the coffee was hot enough that it would cause 3rd degree burns in only a couple of seconds, much faster than most people's ability to react, especially when sitting in a car.

 

[AggieDiver]

Once again, endorsement is not regulation or responsibility for action.

You can try to IMPLY PADI has an obligation to police the "goods" component of a dive shop.

What I am telling you is that in the legal liability realm you lack a sufficient nexus for the claim.

...

PADI is giving them a theatre critics review... Skewed of course because they use their product.

But none the less it's merely that : a review not a monitoring agreement nor a warranty or a regulatory service... Hence no liability.

...

Again- that's not to say a judge may not ignore the law and side with the emotion of the claim- only that is bad law and violative of legal precedence.

I don't entirely disagree with you. I am not in favor of awarding financial damages against PADI for this case. But I do think it is prudent and proper legally, for a court to recognize that PADI is more than an unbiased and independent reviewer, both when it comes to the shops and the divers. As such, they can place requirements on PADI, such as either to stop providing 5 star ratings to shops, or to only do so if they can verify that the shops meet standards specified in PADI training materials; or to direct them to change their training materials to properly address testing for CO. The whole problem is that PADI is not independent of either the shops or the divers. They have a relationship with the diver because they have provided training on how to dive safely and have placed themselves in a position of authority, such that their "recommendations" to use shops are seen as more than "theater critic" type reviews by most divers (especially newly trained ones). They also are compromised relative to the shop, because they have a business interest in giving the shop a higher rating that is independent of the actual quality of the shop or its services. So they are not giving an unsolicited opinion on the shop, they are giving a bought and paid for "review" that is seen by the people using those reviews as an authoritative statement on the quality of the shop.

We will see what the courts ultimately decide...now where do I get my CEUs, and do you think the professional geologist's board will accept them?