DM Liability

[dweeb]

Most DMs and instructors I know take care not to identify themselves as such when diving "on holiday". They just present their AOW card in order to dive.

Which will prevent people looking to you for leadership, but won't protect you if there's an accident. A good plaintiff's lawyer will first subpoena the boat manifest, then the certification records of everyone on board from the agencies. It'll come out in discovery.

 

[dweeb]

No, I'm saying that there is no REPORTED CASE in which a DM has been found liable for an accident when the DM is a MERE BYSTANDER.

Of course, if it's dismissed after the DM runs up a couple thousand dollars on some lawyer's meter, that isn't being found liable.

Worse yet, settlements are often confidential, and rarely involve an admission of liability. Until the late 90's, some major dive pro insurance carriers were playing the appeasement game, then someone figured out it only encouraged more claims.

 

[dweeb]

I'd have to agree with another poster that says this is a situation to stay away from. First, when you speak of "standards", they are often different from one agency to another. What PADI considers a "standard" could be very different from GUE, for example...

If you see someone who seems likely to become a statistic, the best bet is to get as far away as possible before anyone sees that you are in a position to see the problem.
G. Gordon Liddy had a term for it - "plausible deniability."

 

[AtomicWalrus]

Good point - important to distinguish that as a professional, you need to be engaged to act in a professional capacity before a duty of care is assumed. However, as a member of a professional body (which dive agencies assert to be, although not with the legislative status of professional bodies like a College of Surgeons or Professional Engineer Association), someone observing standards violations should report them to their agency if possible.

Actually, that's precisely what you DO NOT want to do if the people are not associated with you or your shop and you want to keep yourself out of court. Aside from instantly making yourself a target, you will lose the legal shield you enjoyed right up to the moment you decided to intervene.

California courts recognize that a person generally does not owe any duty to control the conduct of a third person or to warn those endangered by such conduct. Zelig v. County of Los Angeles, 45 P.3d 1171 (Cal. 2002).

The California Supreme Court stated in Zelig that a duty to warn or control only arises under limited circumstances: "A duty to control the conduct of another or to warn persons endangered by such conduct may arise, however, out of what is called a 'special relationship'. Such a duty may arise if '"(a) a special relation exists between the actor [you] and the third person [the idiot teaching wrong standards] which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other [the poor students] which gives the other a right to protection." ' Id; see also Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1499, 57 Cal.Rptr.2d 406.) ' "This rule derives from the common law's distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter." ' (Hoff v. Vacaville Unified School Dist., supra, 19 Cal.4th at p. 933, 80 Cal.Rptr.2d 811, 968 P.2d 522.

Per se "special relationships" recognized by the Court in other cases include parent/child relationships and psychotherapist/patient relationships. The Court also found a special relationship to arise when a sheriff expressly promised a particular citizen to inform her when a certain criminal was released on parole. From these circumstances and from general case law, one may conclude that a special relationship can arise when (1) a recognized legal duty exists, and (2) an actor voluntarily obligates himself/herself to the duty. I am unaware of a general legal duty of divemasters to the general population to warn them or intervene when the DM sees a standards violation.

Once you stick your nose into something, you assume whatever duty of care applies to the situation. If you are a professional or quasi-professional (e.g. a divemaster) you assume the duty of care applicable to such a professional, which is invariably more stringent than the duty owed by the average joe on the beach who undertakes the task.

If it is any comfort, there is no reported case in the United States where a DM has been held liable for an accident when s/he was merely a bystander (at least that I have found in my Westlaw searches) .

 

[fldivenut]

Most DMs and instructors I know take care not to identify themselves as such when diving "on holiday". They just present their AOW card in order to dive.

Yes this is the way to do it. Not only on vacation but always if your not working. Don't tell people that don't need to know.
--A

 

[Mako Mark]

The PADI divemaster has a Risk management lecture that explains this fairly well in simple terms, the IDC covers it slightly more.

No matter what, Divemasters must remember and must be taught that we are not responsable for other divers, they are responsable for themselves as certified divers. The DM is there to assist divers planning their dive, not wipe their nose for them and take the blame for their mistakes.

If divers are not prepared to assume the risk involved in the activity, they can phone 1800-yomama, or not go diving.

How we document that acceptance of the risk when we are acting in a professional capacity is by having them sign liability releases and express assumption of risk forms. Many frivalous lawsuits have been dismissed on the basis of these forms alone.

In the case that you seek the DM course for self fulfillment, then you can keep your status in Non-active status, that would absolve you of some of the duty of care.

Outside the protection of North American legal systems, divemasters are sometimes not "dragged into court", they are actively thrown into jail (just in case they are guilty of causing a 350 pound 55 year old heavy smokers heart attack).

Personally, when I am diving in a non supervisory capacity, I present a cave or other tec card.

Risk management in and out of the water is important, but remember liability suits are rarely about either justice or punishment, they are about MONEY.

If it werent for lawyers, we wouldnt need them (to quote a sb signature).

Before you go to Cozumel you need to learn the Mexican legal phrase "Yo no fui, no estaba y no tienes pruebas!"

I think H2Andy knows legal Spanish and can translate.

.

 

[fldivenut]

Another concern for DMs here is when you are the DM on a dive boat. Now in this case, as the boat's DM, there is responsibility, but in SoCal most boats have a fairly large number of divers and the dives are not escorted by a DM as in many other places. So the DM is on the deck with 15 divers in the water doing who knows what and he is responsible for their safety - right?

Yes the DM is responsible for "safety" in a limited way since they are also certified divers and as such are taking their on responsibility for their own scuba diving activites. If the DM were to be responsible for them in the water you can not have 15 divers under your supervision. Discover Scuba Diving divers are such divers and I think the limit then is 2 or 4 and you have to have them under direct supervision. i.e diving with them.

IMO, a boat DM and staying on the boat is the best way since your responsibility is to help divers that are having problems at the surface or on the boat, not when they are diving at depth, that's their responsibility. The DM's responsibility becomes more incident/accident managment than prevention. The prevention part is more of providing proper information and procedures so that certified divers can make their own decisions. This then is best done staying on the boat.
--A

 

[AzAtty]

So if I read you right as long as you sit on your hands, even if someone dies that you could have saved, then you're covered for liability. Sounds a little cynical to me.... Do other laws apply in that case?

I live in Holland and I've been told that you have a duty to act here, even as a bystander.

It does sound amoral, but the common law does not punish a person for taking no action when the person is not required by some legal duty to act. Believe me, when the concept is presented in first year Torts in law school, there are a lot of dropped jaws because most people feel a moral duty to take some action and assume that a legal duty should follow.

I am aware that several European countries apparently have laws that require people to render assistance under certain circumstances, so I'm not overly surprised to learn that others have told you that you owe such an obligation. I'm not certain of the origin of Dutch law, but if it is like France or Spain or Italy, your answer will probably be set out quite clearly in the Civil Code. One thing I admire about the Continental legal system is that research is fairly easy. But I've only dabbled in the French Civil Code and some of it's progeny (like the Mexican Codes), and I'm no authority on where you would find the precise answer.

Now, as to other questions, such as liability when a person is the DM du jour on a boat, that is an entirely different issue. In that case, the DM owes a duty of care to the divers under his supervision. In such a case, the DM has expressly assumed a duty to the divers and s/he is no longer a mere bystander (and one DM for 15 divers is probably negligent per se).

If a DM's role is surface support, then the DM's duty of care will be related to that function. However, if there is a problem underwater and the DM is made aware of it, the DM may be under a duty to enter the water and provide rescue assistance because such a situation is a foreseeable event that could occur in the course of his duties.

Hopefully, what you'll see from this discussion is that there are any number of ways to impose a particular duty on a person once the person is in a particular situation. I can sit here in my ivory tower and discuss legal theory and what should or shouldn't have occurred.

I've been in non-diving emergency situations, and I understand the kind of fast thinking and quick judgment calls you have to make when someone's life is on the line. Any person who has "been there" finds the Monday morning quarterbacking and second guessing of the plaintiff's attorneys offensive. When the emergency hits, or when a problem arises, you will not have time to perform a legal analysis of your liability. This is the reason why it is so important to constantly learn, improve skills, and gain greater competence so that we can exercise better judgment in those situations.

As for the lawsuits, buy the liability insurance and leave the worrying to the insurance defense attorneys.

"Yo no fui, no estaba y no tienes pruebas" ("I didn't go, I wasn't there, and you don't have any proof.") I assume since there's no pronoun in the second stanza the pronoun is still "yo", but if "no estaba" is used as the third person singular form of the imperfect tense of "estar" then it means "I didn't go, he (or she) wasn't there, and you don't have any proof (or evidence)."

 

[miketsp]

Since we seem to have a panel of lawyers I would be curious to hear their opinion about a similarly related situation. Having been involved with boating, nautical and water sports in general for many years I ended up getting an Amateur Master's Ticket and during the course there was a legal section. All the usual stuff about international regulations, collision avoidance rules, flag flying and what have you. The instructor told us not to identify ourselves as having this qualification when just travelling as a passenger on any size of boat as there have been cases where there was an accident and the real professional Master's Ticket was invalid, lapsed or even non existent and as such our situation would be complicated even though in the final instance the judge would normally throw out any direct criminal responsibility charge.
The instructor said that even being involved as a qualified witness could generate a lot of bureaucracy.

 

[voop]

First: IANAL (I Am Not A Lawyer)....nor do I play one on TV!

This is an interresting discussion. Where I am (in Europe), I've always been taught that anyone has a "duty of care" in case of an emergency/accident. I.e. if a drunk falls on the street and you're walking by, then you've got the duty to help. Alert EMS and do whatever you can (yes, CPR-training means that the "whatever you can" has an extended meaning). I can't point to a law reference (IANAL, remember?), but I should probably look it up.

However speaking about having a "liability cert" and diving. I wonder what "duty of care" would exist in the following situation: diver X goes diving with diver Y, just as a regular buddy pair. No contractual relation exist between divers X and Y, no instructional relationship exists, X and Y are just out diving together. Still, diver X holds a "liability cert" -- is an instructor. Does diver X have a "duty of care" towards diver Y that goes beyond the duty of care which diver Y has towards diver X? Even if the diver are just diving as "buddies"?

All that said, if I was nearby an accident and I saw that I could do something which might save a life, I'd jump right in and try my best. Doing something to try to save a fellow human is, to me, more important than legal complications which might arrise. I could probably live with myself being sued, but having tried to save a life -- but I couldn't live with myself knowing that I might have made a difference but just didn't....

Yes, during DM-training and IDC', legal issues are discussed. But not at great enough length and -- besides -- legal systems differ and change, so.....