Calgarian suing diver training organization

[nimoh]

I don't think her level of experience should be in question as it is not related to the incident. Had this been a brand new diver doing their first dive after completing OW, would some be suggesting that they should have had more experience before going scuba diving?

It seems to me that she followed the rules laid out by PADI ensuring she had safe gas to breathe, and the rules didn't work. This I think by itself doesn't make PADI liable, but since there are better ways of ensuring gas is safe to breath, and PADI knows about them, then there may be some liability there.

I think the counter argument is that these better ways of ensuring safe gas to breathe, weren't well known (if at all) in 1987 when the diver received their training.

 

[underH2Oman]

A point of interest-

In Canada CSA standards for diving (Z275.2-11) only call for CO detectors on mobile compressors run by internal combustion engines. They have to be set at 3ppm and have auto shutoff. I can't find anything else about CO monitoring for diving operations.

The CSA standard for compressed breathing air (Z180.1-13)requires CO detectors with visual and audible alarms set for 5ppm.

I'm not sure what standard Ontario OHS mandates for diving but generally commercial diving ops (which include stores, etc) go with Z275. Z180 is what fire halls, oil field safety companies, sandblasters, etc are governed by.

Many shops here in Ontario will fill SCBA for any local business that needs a refill as well as SCUBA. If they fill these they must meet the Z180 standard as that is what the other business requires.

 

[Diver0001]

Just saw this news article. I think CO should be covered in OW programs if it is not already. It is included in all my OW classes and has been for decades.


Calgarian suing diver training organization after wife's scuba death - Calgary - CBC News

(disclaimer, I am no lawyer and I know logic and law don't always mix )

but ... I just got around to reading that article.

If I understand correctly. An operator in Mexico that is not in any way part of the PADI organisation fills a tank with toxic gas, which it sells to a diver, who has an accident and dies.

Then the husband of the deceased believes the accident could have been avoided if they had been trained differently so he tries to contact PADI about it.

PADI says (I presume) the legal entity in Mexico is responsible for the accident and nothing about the training the divers have received caused the operator to fill the tanks with toxic gas.

The husband then blows a cork because he doesn't like that answer and sues PADI on the grounds that some change or other (I assume) that PADI could make in training would have prevented this accident.

So the case is going to boil down to the following question: Who is responsible for the toxic gas in the tanks?

- Is the operator who filled the tanks responsible for the product they are producing (caveat venditor)?
- Is PADI legally responsible for the operator's product and therefore required (or should be required) to train divers to fully manage this risk on their behalf?
- Is the the diver legally responsible for the product they choose to buy and use (caveat emptor)?

In the second case, I think there's no case. This thinking is a pure case of "post hoc ergo propter hoc".

I cannot see how entity A can be made legally responsible for a defect in a product produced by entity B and sold to entity C when that transaction takes place completely beyond the scope, contractual/legal engagement, or knowledge of entity A. Furthermore, I think PADI would be right in saying (as I assume they would have done) that nothing about their training protocol caused the operator to fill the tanks with toxic gas.

It will take some awfully strange logic to conclude that every diver as a defacto corporate proxy of the PADI corporation should be held legally responsible for a product produced by an entity over which neither the diver (acting as PADI's proxy) nor PADI have any management control and/or legal/contractual engagement.

That would be just like holding the agency that decides what you have to learn to get a licence to drive a car responsible if someone buys a Ford and it blows up, killing the driver, because of some defective part that Ford put in the engine.

But like I said, I'm not a lawyer, just a nobody with an opinion.

In a more pragmatic sense, it raises the question of risk management in general. To what extent should divers be made *aware* (as they already are) and or *directed* (which is a legally sticky issue) by the training organisation to test every tank of gas they get in accordance to certain protocols. Awareness is good. This is also already covered but perhaps addressing awareness of the existence of CO analyzers is something that could be more explicit in the written materials. Directives, however, in the form of, "thou shalt test ever tank of gas for CO contamination", shouldn't, in my mind be the realm of the training agency.

Sure, tell divers it's a good idea and make them aware of the risks. Make them aware of the tools they have at their disposal and impress upon them that they are responsible for their own safety. If that is done, then the agency has done what they need to do.

Except, as I understand it, in Texas

R..

 

[swamp diver]

(disclaimer, I am no lawyer and I know logic and law don't always mix )

If I understand correctly. An operator in Mexico that is not in any way part of the PADI organisation fills a tank with toxic gas, which it sells to a diver, who has an accident and dies.

R..

There may be some misunderstanding here.

If you go back to the original thread at the time of the fatality the shop in question was an affiliate PADI dive shop listed on PADI's website. Since that time PADI has delisted them. I can't recall whether the shop was a PADI Dive Center of PADI 5 Star Dive Center. If they were the latter there may have been an obligation to do regular quarterly air testing and keep these results on file, however this requirement may have changed in 2009/10 following a double CO fatality at the Cocoview Resort in Roatan, Honduras.

Prior to the Cocoview CO fatalities and the subsequent law suit there were clear air quality guidelines set by corporate PADI which all their affiliate centers and resorts were to follow. This included quarterly testing of the compressed air which had to meet the CGA Grade E compressed breathing air standard (CO < 10 ppm).

Now we have a similar case however it may be that PADI no longer has an air quality program rather they defer to the local jurisdiction having authority which in this case is Mexico or the local state where the incident occurred. The shop at the time was a PADI affiliate so the question will arise what exactly did the "PADI Diver Center" affiliate membership mean in terms of compressed air quality monitoring for clients purchasing compressed air from that dive center at that time? I don't have an answer but I suspect the court challenge will test if being deemed a PADI affiliate presumes that there is some corporate PADI oversight and responsibility with respect to the quality of the compressed air produced and sold by those affiliates.

If a local restaurant franchise poisons me who is responsible the local franchise restaurant alone or this restaurant plus the corporation which sets and enforces the food safety guidelines the individual franchisees must follow?

 

[vincent54]

I had a thought. "It's not about the money"... so why sue. The shop looks like they lost their PADI affiliation. If the husband wants change why not just donate all winnings to buy CO monitors . Unless it is about the money.

 

[Diver0001]

There may be some misunderstanding here.

If you go back to the original thread at the time of the fatality the shop in question was an affiliate PADI dive shop listed on PADI's website.

What that means is that the shop paid PADI some money so they could use their logo for marketing.

It does not mean that PADI was managing the shop.

The question of liability here is quite clear.

The shop sells gas to divers.

The shop has a duty of care to sell safe gas to divers.

The shop acts negligently with respect to that responsibility and sells toxic gas to divers. And even if PADI or some other entity, like the government, provides guidelines, it is still the shop's responsibility and NOBODY ELSES to follow those guidelines with respect to their duty of care.

The diver uses that gas.

The diver has an accident directly and causally related to the use of that gas.

The diver dies as a result.

Nowhere here does PADI have any control over, say in, knowledge of or handling with respect to that process, with respect to what went wrong or with respect to the consequences.

What is happening here is what often happens in these kinds of cases. The husband talks to some slick lawyer who thinks that he can somehow pin it on PADI. So they go after PADI. Why? Because PADI has better insurance coverage than the shop in Mexico and if, by some stroke of unbelievable luck, they do win, they will squeeze more money out of it.

But they will not succeed and then the husband will have to deal with Mexican lawyers under Mexican law suing a Mexican shop that probably has 2nd rate insurance and IF they manage to ever get it through the system at all, the pay out will be peanuts.

That's what is happening here. Nobody, not the husband, not the lawyer, not the insurance companies and certainly nobody outside of the state of Texas thinks that PADI has the first thing to do with this accident. It's just the litigation lottery. Nothing more. Nothing less.

The really sad thing here is that the husband is going to get screwed twice here. He's already lost his wife and now he's going to lose a fortune paying a lawyer to pursue a completely hopeless lawsuit on his behalf. The husband has obviously been sucked in by the lawyer who knows he can't win and is milking his client. Moreover, he will milk his client twice. Once by going after PADI, which is just chasing a ghost in this case and once by sucking in the husband a second time based on the relationship he already has with him to act as a proxy for the lawsuit in Mexico in which the American lawyer really can't do anything except send emails back and forth for $250 an hour.

R..

 

[Dr. Lecter]

I had a thought. "It's not about the money"... so why sue. The shop looks like they lost their PADI affiliation. If the husband wants change why not just donate all winnings to buy CO monitors . Unless it is about the money.

Because there aren't any winnings to donate until and unless you sue; because you haven't got a prayer of forcing any kind of change without a club and a few million in liability makes a decent club; and, because you have to pay the lawyers/lobbiests somehow.

Don't get me wrong, I think this guy's suit is doomed to failure in so far as it targets PADI as an organization...and not just because of the pending forum non conveniens motion I expect he may lose. But only fools and children think they've got it all figured out with 'Anyone who sues is just playing the dead relative lotto.'

 

[Dr. Lecter]

What that means is that the shop paid PADI some money so they could use their logo for marketing.

It does not mean that PADI was managing the shop.

The question of liability here is quite clear.

Unless you've had a chance to look over the actual papers defining the relationship between the shop(s) in question and PADI, as well as any and all educational, advertising, and marketing materials PADI has ever produced that directly or implictly speak to a link between air quality and PADI affiliation, you really haven't any idea how clear the agency (as in agent, not dive agency) liabiliy question is. One need not manage a franchisee to be responsible for their not living up to a standard you've claimed anyone bearing your name will meet.

Then there are the quite separate claims about whether PADI had an obligation to disclose information to the deceased about whether PADI shops in Mexico were held to different standards than PADI shops generally, and whether PADI had an obligation to teach diver students more about CO than it did. While that latter claim is the focus of the OP's linked article, I'm not really seeing it in the amended complaint.

 

[flots am]

So the case is going to boil down to the following question: Who is responsible for the toxic gas in the tanks?

. . .

- Is PADI legally responsible for the operator's product and therefore required (or should be required) to train divers to fully manage this risk on their behalf?

. . .
/QUOTE]

Obviously, PADI didn't fill the tanks, however they do mention in their training materials that it's important to make sure the tanks don't contain Carbon Monoxide, however they neglect to tell the diver how to reliably do this, and instead recommend an antiquated and useless method of tasting/smelling.

I don't see a big difference between this and if they told divers to "Make sure their ascent speed was safe" without mentioning what a safe ascent speed was or how to measure it.

I would bet that a good lawyer could make a pretty good argument for PADIs training materials being incorrect or insufficient.

 

[Tigerman]

Couldn't agree more, works out to about 8 dives a year over the ~ 25 years certified. Would figure that pretty typical of the casual vacation diver.

Also known as the kinda people who DONT hang around on forums discussing all sorts of scuba issues every day, getting updated on the latest developments in testing methods and research. Also, back when she got certified in 1987 the course material where different from what it is now. I dont know when she got the EAN card, but thats changed over time as well...