Divemaster and liability

[Divin'Papaw]

To be clear - at least in PADI - you are NOT an "active DM" if you DON'T have insurance. It's not a matter of "should."

True. There are 3 things required for you to be "active" with PADI as a DM. (1) Must successfully complete a DM program, (2) must be current on annual dues and (3) must have current liability insurance. The first is required to even get your PADI #. Items 2 and 3 are required to stay current. If either of them are not current, you are listed as Not in Teaching Status via their ProCheck website. This is for the US. There are different rules in each foreign country as far as whether or not liability insurance is required.

 

[RJP]

Muddiver is correct, Just because you are a DM and on the same boat does NOT make you responsible for everyones saftey. The only time you are liable is if you were providing professional service.

Not to be confused with whether or not you are FOUND to be liable...which may have nothing to do with your ACTUAL liability.



You do not have to be "providing a professional service" to be found liable. Imagine you are just out diving - not acting as a DM - and end up talking to two other divers on the boat about diving in general. You mention that you've dove this site before when you were DMing for a class, and tell these other two divers that they really oughta go out to the edge of the wall and see some really cool coral head. These two divers go to see it and end up in trouble when they get caught in a current. One is washed away and never found again, the other is rescued.

When asked "What happened?" don't you know the survivor is going to say "We were gonna stay in the shallow area by the boat, but that DM-guy told us to go over there, and since he's a DM we assumed it was safe..."

So you could be liable if you put yourself in a situation where someone might "justifiably rely" on the fact that you are a DM and end up in trouble.

Similarly, if you are swimming along on a reef and come along a diver in distress and attempt to render assistance and it goes wrong, you will be held to a higher standard than someone who was just OW certified as you have a greater skill set/training.

 

[Web Monkey]

Remember when McDonalds got sued, successfully, because someone spilled their coffee on them? They sued because the coffee was too hot? You would think that if you are buying hot coffee, that it is hot and may burn you.

This keeps coming up as an example of a frivolous lawsuit and really bothers me.

McDonalds was sued not because some woman spilled coffee and got burned, but because McDonalds intentionally kept their coffee hotter than anybody else on the planet, at a temperature that is not drinkable and causes immediate third-degree burns on contact. Once the coffee spills, there is no action that can be taken in time to prevent buring.

Also, at the time, their coffee had resulted in close to a thousand reported burn incidents, which they chose to quietly settle instead of cooling off the coffee.

Terry

 

[paddler3d]

This keeps coming up as an example of a frivolous lawsuit and really bothers me.

McDonalds was sued not because some woman spilled coffee and got burned, but because McDonalds intentionally kept their coffee hotter than anybody else on the planet, at a temperature that is not drinkable and causes immediate third-degree burns on contact. Once the coffee spills, there is no action that can be taken in time to prevent buring.

Also, at the time, their coffee had resulted in close to a thousand reported burn incidents, which they chose to quietly settle instead of cooling off the coffee.

Terry

Why does it bother you? You call the lawsuit frivolous, but you seem upset that they settled.

 

[boulderjohn]

There have been cases of people being sued or in criminal court because all they had was rescue diver and failed to provide the minimum of a rescue attempt in the eyes of the prosecutor, jury's are not likely to be divers and do not have much to go on other than some lawyers opinion that as a rescue diver you should have rescued the person that died,

I read about them here on SB, look in the accidents section, one husband, and another but I do not remember specifics (old rum infected brain). the husband definitely went to jail. another may have been a Russian instructor, but I may be confusing stories. not US cases that I remember but again not so good on the memory.

You are no doubt talking about the Gabe Watson case. Here is one of many threads on the topic. It is not as simple as you make it seem. Watson pleaded guilty almost certainly to avoid a trial and the possibility that he would be found guilty of murder. Although he pleaded guilty to failing to rescue his wife, there was a lot of evidence suggesting that he intentionally murdered her. The plea raised quite an uproar (as you might read) because he pleaded guilty and accepted a prison term for something that was not illegal--failing to come to someone's aid. There was a fear that this would set a precedent, but we were told by attorney's that plea bargained results cannot be used as precedents.

The last I heard, the attorney general in Watson's home state was still vowing to try him for murder, even though his guilty plea probably gets him off the hook for it because of double jeopardy.

In other words, this case is so far out in left field that it should not be a concern for anyone.

Remember when McDonalds got sued, successfully, because someone spilled their coffee on them? They sued because the coffee was too hot? You would think that if you are buying hot coffee, that it is hot and may burn you. Courts found in favor of the plaintiff.

The McDonalds case rears its head again. If you had been on the jury and heard the full case facts instead of this half sentence, you would probably have voted to convict yourself.

 

[boulderjohn]

You do not have to be "providing a professional service" to be found liable. Imagine you are just out diving - not acting as a DM - and end up talking to two other divers on the boat about diving in general. You mention that you've dove this site before when you were DMing for a class, and tell these other two divers that they really oughta go out to the edge of the wall and see some really cool coral head. These two divers go to see it and end up in trouble when they get caught in a current. One is washed away and never found again, the other is rescued.

When asked "What happened?" don't you know the survivor is going to say "We were gonna stay in the shallow area by the boat, but that DM-guy told us to go over there, and since he's a DM we assumed it was safe..."

So you could be liable if you put yourself in a situation where someone might "justifiably rely" on the fact that you are a DM and end up in trouble.

This is not consistent with what attorneys on other threads have said.

 

[boulderjohn]

Why does it bother you? You call the lawsuit frivolous, but you seem upset that they settled.

He is not calling it frivolous; he is saying other people use it as an example of a frivolous lawsuit, and it bothers him that they do because it was not frivolous.

 

[Peter Guy]

ScubaRich -- The primary reason I didn't even attempt to "clarify" my response is that it really can't be clarified. Liability cases are ALWAYS subject to the actual facts and circumstances of the situation -- and sometimes even small differences in them can have huge consequences.

Are there general rules? Yes (see prior threads on liability).

Do they help most people in making the kind of decision the OP is wanting to make? Nope!

 

[MauiScubaSteve]

Also independant instructors don't have the luxury of being carried by a diveshop.

On a side note, I wish I could be footloose and fancy free in Hawaii, unfortunately I'm stuck in the NE where there are more lawyers than grains of sand.

When I work as an independent instructor I work off a boat that I am listed on the policy with. My students pay the boat for the ride and they pay me for the instruction. The boat operator pays me nothing and I pay him nothing.

I am working on occasion as an independent instructor and I have no personal dive pro insurance, but I'm listed on 2 policies (that one and my part time employer's).

 

[paddler3d]

Enough of the PM's with the McFacts about the McDonald's coffee lawsuit.