Divemaster liability

Please register or login

Welcome to ScubaBoard, the world's largest scuba diving community. Registration is not required to read the forums, but we encourage you to join. Joining has its benefits and enables you to participate in the discussions.

Benefits of registering include

  • Ability to post and comment on topics and discussions.
  • A Free photo gallery to share your dive photos with the world.
  • You can make this box go away

Joining is quick and easy. Log in or Register now!

jar546

Contributor
Scuba Instructor
Divemaster
Messages
1,607
Reaction score
408
Location
South Florida
# of dives
I'm a Fish!
One of the ways you are protected against that possibility is that in many cases you can counter sue for court costs and even beyond of the case is especially frivolous. In most cases, lawyers are only paid in such suits if they win. A lawyer is not likely to bring a case in which he has no chance of winning and a good chance of having to cough up money instead.

I speak with confidence in my challenge because we have had many such threads over the years, and attorneys have participated in these threads many times. In one case one of them searched the databases that can be accessed by attorneys and could not find anything that would give anyone cause for concern.

I concur
 

DivemasterDennis

DivemasterDennis
ScubaBoard Supporter
Scuba Instructor
Divemaster
Messages
3,530
Reaction score
1,544
Location
Lakewood, Colorado
# of dives
500 - 999
Well everyone, let me refer you to my earlier post. Some of you are oversimplifying. Some of you are just speculating, and the comment about not having insurance being somehow a good thing is just plain wrong. I say that with the utmost respect for each of you. While it is true that the chance of being found liable in a "friendly setting" is unlikely, it is not impossible. Do not take comfort in the fact that there are few or no "reported cases." Only cases that go to trial and are then appealed make it into the formal legal literature. Most cases (90% or more) settle without a law suit being filed. Most law suits settle before trial, and not all trial verdicts are appealed. I have done this work for more than three decades. What I posted above, I stand by, with my right had on my PADI instructor manual and my left hand on my legal malpractice policy. A wise person will have insurance if they function in a professional capacity at any time. A wise person will seek out the advice of a competent attorney who carries legal malpractice insurance when they have a legal question. I have practiced law since 1978, and been a PADI pro since 2000. Gentle readers, believe what, and who, you want. Here is the bottom line: a properly trained and competent divemaster who maintains good diving, dive planning, and emergency management skills has nothing to fear so long as that divemaster acts in accordance with the standard of due care expected of a dive professional at his or her level of certification and undertaking. All of us should act that way all the time.
DivemasterDennis
 

Rhone Man

Contributor
Scuba Instructor
Divemaster
Messages
11,299
Reaction score
10,738
Location
British Virgin Islands
# of dives
1000 - 2499
... and the comment about not having insurance being somehow a good thing is just plain wrong ...

I haven't been practising law as long as you, but I am going to respectfully disagree with that comment.

A friend of mine (who is not a wealthy person) recently started offering some kind of ante-natal classes out of her home. She asked me if I thought she should get liability insurance. I told her no. As things stood, only a crazy person would sue her, because she would never be able to satisfy even a modest judgment. However, if she has the deep pockets of insurers standing behind her, she suddenly becomes a very attractive target for litigants.
 

Tesibria

Contributor
Messages
1,298
Reaction score
735
Location
Somewhere b/w Phoenix & Shanghai
# of dives
200 - 499

You are correct that this is a case involving a "scuba situation." However, just for clarification .... the referenced case is Huverserian v. Catalina Scuba Luv, Inc., 184 Cal.App.4th 1462, 110 Cal.Rptr.3d 112 (Cal. Ct. App. 2010).

The issue in Huverserian was simply whether a release signed by the decedent limited an equipment renter's liability. The release was titled:
"Equipment rental agreement, liability release and assumption of risk of scuba & snorkel gear for boat dives or multiple day rentals."
(Color added for emphasis; bold/underlining in original.) The decedent rented equipment for a shore dive - not a boat dive or multi-day rental. The issue was whether the release applied to the shore dive. According to the court, the release did not apply because it was expressly limited to boat dives and multi-day rentals:

"The language of the rental agreement is unambiguous. The exculpatory language releasing respondent from liability expressly is limited to “boat dives or multiple day rentals.” The rental here does not fall into either category, and therefore the exculpatory language is inapplicable and provides no defense upon which summary judgment may be based.'"

"...As we have observed, a person renting equipment for a single day, not to be used on a boat dive, would read the emphasized language and reasonably determine that it did not apply to him or her, and conclude that by signing the agreement, he or she had only agreed to the rental terms with no release of liability intended.

Therefore, it held that the release did not apply to the rental at issue.


The case did not in any way address liability of the parties based on actions taken as DM, boat owner, or any other designation.
The decision could have as easily applied to a release for mountain climbing or sky diving.
 

Tesibria

Contributor
Messages
1,298
Reaction score
735
Location
Somewhere b/w Phoenix & Shanghai
# of dives
200 - 499
...[T]he comment about not having insurance being somehow a good thing is just plain wrong.

I haven't been practising law as long as you, but I am going to respectfully disagree with that comment.

A friend of mine (who is not a wealthy person) recently started offering some kind of ante-natal classes out of her home. She asked me if I thought she should get liability insurance. I told her no. As things stood, only a crazy person would sue her, because she would never be able to satisfy even a modest judgment. However, if she has the deep pockets of insurers standing behind her, she suddenly becomes a very attractive target for litigants.

Wow. I strongly agree with DivemasterDennis. And respectfully disagree with RhoneMan. (I've only been practicing law for 18 years, so compared to DivemasterDennis, I'm a newbie :D.)

I don't understand how one could suddenly become a very attractive target for litigants merely by having insurance. Nor do I understand how, even assuming that is true, that means it's better not to have insurance.

First, how would any potential litigants even know whether a person has an insurance policy covering a given situation? Actual litigants typically find that stuff out in litigation -- that is, after they've already sued the defendant. So - let's suppose Lisa Litigious ("LL") sues 5 different people after some dive-related accident (because it's likely that in any such accident, multiple parties will be sued). And, let's suppose that when LL finds out in discovery that only 3 of the 5 defendants have insurance policies, she may focus on those 3 going forward. Depending on the situation, however, LL is at least as likely to keep the other 2 in the case as not -- for a wide variety of reasons. E.g., it doesn't cost her much more to keep in additional defendants, it eliminates the need to get subpoenas for them as witnesses while pursuing case against the remaining defendants and, besides, LL is mad at the world, and she is going to "take it out" on everyone she can.

Second, even if LL did voluntarily dismiss the 2 uninsured defendants, they're still stuck with a bill for their legal defense fees incurred getting to that point in the case. Their life has already been disrupted. If they're in federal court, their name is already tied to the case for any person conducting a search in PACER. And, given that many state courts now have online dockets, their "connection" to the case is publicly available from a variety of free searches. Not only that, but their live will continue to be disrupted. I mean, given that they were somehow involved in the incident, they likely will have to testify at depositions (which means they'll need an attorney anyway, paid out of their pocket). Their records may be subpoenaed anyway (which means they'll need an attorney to review the documents before production to protect them from inadvertently disclosing something that could create liability). They may well still have to appear at trial, if the case ever gets that far, to serve as a witness. If the case has been publicized, their name is already connected to the incident and lawsuit in the press.

So are the 2 dismissed defendants really better off than their insured co-defendants remaining in the case??
Let's see: Instead of remaining parties to the case --- with (a) insurer-paid attorneys, (b) insurance for a possible settlement or judgment, and quite possibly (c) at least some of the other parties "sharing" the defense load under a joint defense agreement --- the uninsured defendants get dismissed. Great!! Now they just have to find the money necessary to cover the defense bills incurred up to dismissal, plus the defense costs they will incur when they appear as a witness, plus defense costs they'll incur when their records are subpoenaed. Is that really a better place to be?

To be clear, I don't think the typical person/DM/Instructor needs to take out a $5MM policy or anything of the sort. But I strongly agree with DivemasterDennis that it's "just wrong" to think that one is better off not having insurance. I would add that -- imho -- it's far more important to ensure that the policy covers defense costs than how much the policy's payout limit is upon liability. Insurance covering defense costs is, imho, the primary reason to have a policy. Chances are actually quite small that any given person will get hit with a huge judgment. And, while I believe that chances are slim that the typical diver/DM/instructor will get sued, the risk of being sued is higher than the risk of being found liable. I wouldn't want to take the chance that I'd get stuck with huge defense bills.

The annual cost of, e.g., an individual PADI Divemaster Insurance Policy, with unlimited defense costs, is about $320 per year. It's worth noting that -- depending on where a person lives -- the $320 that one "saves" by not buying insurance just-maybe-might-if-one's-lucky cover somewhere between 1 and 1.5 of the n hours that an attorney will spend defending any lawsuit that occurs.
 
Last edited:

Cap335

Contributor
Scuba Instructor
Messages
533
Reaction score
378
Location
Houston
# of dives
I'm a Fish!
If this always happens, can you cite an example where it has happened once as an example?
I don't remember all the details but there was a Houston area instructor in the 70's or early 80's that was on a boat in Cozumel with his girlfriend. On the dive someone died and when the family sued he was caught up in the suit. The case was dropped against him but he did have to get lawyers and go through a deposition before it was dropped.
 

openmindOW

Contributor
Scuba Instructor
Messages
1,465
Reaction score
127
Location
USA
I too practice law in the USA. I have been involved with SCUBA litigation in the past. Until now, I have refrained from engaging in this discussion.

There is nothing wrong with the qestion posed by the OP. However, it is a broad question and, consequently, it is difficult to answer.

As a general rule, if a person (Defendant) in the USA engages in negligent conduct and if that negligence causes injury and economic loss to another person (Plaintiff), then the Plaintiff might successfully sue the Defendant. Under general US law, the Plaintiff must prove his case by a Preponderance of the Evidence.

But this is a very general rule. There are legal questions the answers to which can affect the potential result. Here are a few.

- Did the Plaintiff sign a Liabiity Waiver?
- Did the Plaintiff Assume the Risk by engaging in a risky activity?
- Did the Plaintiff engage in Contributory Negligence?
- Did someone else also engage in negligent conduct that contributed to the alleged injury?
- In what jurisdiction did the conduct take place?

For Divemasters, there are three threshold questions to consider.

First, was the Divemaster being paid to assist the diver in question?
Second, if yes, was the Divemaster working for someone else, such as an Instructor or a Boat Captian, at the time?
Third, did the Divemaster hold himself out to the Plaintiff as a Divemaster?

All the questions posed above have answers that could afffect the legal outcome of any situation.

Liability Insurance is a good idea, in my view.
 
Last edited:

openmindOW

Contributor
Scuba Instructor
Messages
1,465
Reaction score
127
Location
USA
In most cases, lawyers are only paid in such suits if they win. A lawyer is not likely to bring a case in which he has no chance of winning . . . .

This is true. Most law firms screen negligence cases before filing them.

People tend to blame layers for filing weak cases, but sometimes its the Plaintiff himself who pushes for a case.

News flash: Clients lie. Even the honest ones can be angry people by the time they contact a lawyer. In those cases, the angry client may have a one-sided view of the matter and may not be objective.

Parents can be particularly angry when a child is hurt. I have seen this in my practice. In such cases, emotion is a factor.

When you are dealing with kids, be especially careful.
 
Last edited:
https://www.shearwater.com/products/perdix-ai/

Top Bottom