DM Pay

[Scraps]

Not really. Words have meaning.

Words do have meaning, but very few words that remain in common use for extended periods of time have only one meaning.

In fact, not only does "professional" have many meanings, so does "paid," as BoulderJohn points out in his discussion of duty of care.

I have at least four different pay arrangements, each with its own set of facts and possibly its own professional risks. From time to time, a local dive shop will offer me a "paid job" to lead a local shore or inland dive; the pay is usually nominal and the tips are inconsequential. The dive shop considers me a contractor, but they have me listed on their liability policy. Sometimes, I work for one of two different charter boat operators: neither pays me, but one guarantees a minimum tip income that I've never fallen below, and neither has said anything about being covered by their liability policy, so I carry my own liability policy. Occasionally, a dive shop will charter a whole boat and "hire" me as a divemaster, but they don't pay me, and I work only for tips. Other times, I get hired by either the charter boat captain or the dive shop to guide a specific individual or couple; in this case, I get paid a guide fee by either the shop or the charter boat and I get tips, but only from the people I'm guiding. I generally assume that my own liability policy is the only one I can rely on to protect me, and I assume I have the highest duty of care when I'm hired specifically to guide particular divers. I also doubt that my contractor status would withstand scrutiny, but I'm not going to be the guy who challenges it because my occasional DM work is a pretty fun retirement gig.

Except when I'm specifically assigned to babysit someone, both the dive shop and the charter boats insist through their waivers/releases that the divers are certified divers to whom we provide taxi service and local knowledge without accepting responsibility for their dives. I hope that theory never gets tested. I have wondered, though, what would happen if a certified diver died on a regular charter. I get tipped at the end of the boat ride. If someone dies, it will be before he or she tips me, which means I was never paid or promised to be paid to care for them--and it would be before the "DM's work for tips" pitch. I hope I never learn the answer to that one, either.

For all the ambiguities, I do consider my work to be "professional" and endeavor to uphold professional standards in all of these situations.

 

[boulderjohn]

I also doubt that my contractor status would withstand scrutiny, but I'm not going to be the guy who challenges it because my occasional DM work is a pretty fun retirement gig.

Probably not. That was one of the key realizations of the first shop I worked for--under IRS rules, we were all supposed to be employees, and the shop's attorneys told the owner he had better make that happen.

Except when I'm specifically assigned to babysit someone, both the dive shop and the charter boats insist through their waivers/releases that the divers are certified divers to whom we provide taxi service and local knowledge without accepting responsibility for their dives.

I am pretty sure the purpose of that is a hope of forestalling a potential lawsuit by someone who is fooled by that. It is like the signs you see on the back of dump trucks telling you to stay back because they are not responsible for broken windshields--they are indeed responsible for damage from anything coming out of that truck, but they hope you won't know that.

On the other hand, you really are pretty safe leading a dive with certified divers. If they wander off, for the most part that is on them. (If they are students and wander off, that is on you.) You would have to be seriously negligent to be blamed with certified divers--like the case I mentioned of the guy who refused to share air. Most of the expectations for such dives comes from the policies of the operators. In many cases in resort areas, I think a DM would be fired if a diver under his charge went OOA, because the operator expects the DM to keep track of that to make sure it doesn't happen. Dive operators do not want to develop a reputation for having customers die on their dives.

 

[wetb4igetinthewater]

1. Many of the practices described in this thread are violations of the law, as the first dive shop I worked for discovered before changing its policies. Dive shops get away with it because some people don't know better and because the ones that do know better have decided it is better to live with it than report it to the appropriate authorities. (I am one who never reported those abuses to authorities, even when I confirmed with an expert that they were illegal.)

Yeah, there are certainly labor law violations. If you fight this in my area, you better have your own compressor or be willing to drive farther for cylinder fills (unless you are lucky to live near one of the ethical dive shops).

 

[Cert1967]

I have been warned that if I were to buddy with an insecure diver and say, "I'm an instructor; you can count on me to help with this dive," then I am a professional even though I am not getting paid, and I can be sued. If I do not make that sort of statement, I am most likely free from liability, even if I am a known instructor, although there have been some very troubling cases in that regard of late.

Interesting opinion - have any juice to back it up?

What case law supports your position of liability exposure with and without declaring you are an instructor? What state(s) are involved? Is your opinion grounded in fact or in 'dive-talk' ?

Are you able to cite to any of the cases you feel are 'troubling' ?

Are you referring to 'cases' in the legal sense or something else you heard about via the grapevine?

Full case cite would be good, but the jurisdiction, title, case number would be better.

Like,

Florida, Fl Dist Ct App, Borden v Phillips, 1D98-3361, 16FEB200

FindLaw's District Court of Appeal of Florida case and opinions.​

Diving with an op in Florida?

 

[wetb4igetinthewater]

Interesting opinion - have any juice to back it up?

What case law supports your position of liability exposure with and without declaring you are an instructor? What state(s) are involved? Is your opinion grounded in fact or in 'dive-talk' ?

Are you able to cite to any of the cases you feel are 'troubling' ?

Are you referring to 'cases' in the legal sense or something else you heard about via the grapevine?

Full case cite would be good, but the jurisdiction, title, case number would be better.

Like,

Florida, Fl Dist Ct App, Borden v Phillips, 1D98-3361, 16FEB200

FindLaw's District Court of Appeal of Florida case and opinions.​

Diving with an op in Florida?

There is a concern that as a dive pros, we have duty of care with whomever we dive with. If the family feels the dive buddy didn't do enough and hire an attorney, if the attorney is any good, he's going to contact every dive agency to see if that person is a pro. That's according the to the presentation at DEMA that I attended given by an attorney that is on the plaintiffs side. You can try to hide your certification while on a dive charter/vacation, but that attempt at obfuscation won't guarantee from being on the list of defendants if there is a fatality/serious injury. You will lose at a minimum of headache, time, and hiring your own attorney. There is the shot gun approach to many lawsuits.

Some dive pros have divers, including other dive pros, sign releases. Now whether those hold up in court (a friend of mine did personal injury, and he said releases are easy to get around) is another story.

AFAIK, there is no precedent in the US. There is the Stephan Martin case (not Steve Martin the sm instructor) that went on in Malta years ago. Charges of involuntary homicide were eventually dropped. Diver 'elated' after Malta charges dropped.

 

[Cert1967]

Except when I'm specifically assigned to babysit someone, both the dive shop and the charter boats insist through their waivers/releases that the divers are certified divers to whom we provide taxi service and local knowledge without accepting responsibility for their dives. I hope that theory never gets tested.

Working in Florida? Borden would be a good read for you. Consulting an attorney knowledgable in the subject matter would be an excellent idea.

 

[Cert1967]

Now whether those hold up in court (a friend of mine did personal injury, and he said releases are easy to get around) is another story.

@wetb4igetinthewater

Did you read the Borden case?

 

[wetb4igetinthewater]

@wetb4igetinthewater

Did you read the Borden case?

I stopped reading when I read it was a death that occurred in training.

I thought, maybe I'm mistaken, that we were discussing fun dives. Specifically @boulderjohn's statement: "On the other hand, you really are pretty safe leading a dive with certified divers."

I don't agree.

 

[boulderjohn]

Interesting opinion - have any juice to back it up?

What case law supports your position of liability exposure with and without declaring you are an instructor? What state(s) are involved? Is your opinion grounded in fact or in 'dive-talk' ?

Are you able to cite to any of the cases you feel are 'troubling' ?

Are you referring to 'cases' in the legal sense or something else you heard about via the grapevine?

Full case cite would be good, but the jurisdiction, title, case number would be better.

Like,

Florida, Fl Dist Ct App, Borden v Phillips, 1D98-3361, 16FEB200

FindLaw's District Court of Appeal of Florida case and opinions.​

Diving with an op in Florida?

Sorry. I stopped paying any attention to anything you write a long, long time ago, and I am not going to start now.

 

[rjack321]

Interesting opinion - have any juice to back it up?

What case law supports your position of liability exposure with and without declaring you are an instructor? What state(s) are involved? Is your opinion grounded in fact or in 'dive-talk' ?

Are you able to cite to any of the cases you feel are 'troubling' ?

Are you referring to 'cases' in the legal sense or something else you heard about via the grapevine?

Full case cite would be good, but the jurisdiction, title, case number would be better.

Like,

Florida, Fl Dist Ct App, Borden v Phillips, 1D98-3361, 16FEB200

FindLaw's District Court of Appeal of Florida case and opinions.​

Diving with an op in Florida?

There are cases where instructors have been held liable for (grossly) negligent behavior that might be similar to a the 'supervision' provided by a DM. Like the DCS in Turnbough v. Ladner, 754 So. 2d 467 - Miss: Supreme Court 1999
Turnbough v. Ladner, 754 So. 2d 467 – CourtListener.com

Of course there are more where PADI settled and to varying degrees threw their own instructor under the proverbial bus in the process like they did in Tuvell v Blue Water Scuba. (although probably not as grossly out of line)
When a training agency decides it is more important than its instructor members or, worse, the training agency helps the plaintiff sue its own members

There are also ample cases where liability releases have been upheld and summary judgment even granted to the defendant because at best the instructor (or DM) was only simply negligent. But more importantly, why would anyone want to got through all of this for tips? A DM card is 99% about the chest puffery, 1% about liability coverage, and makes -200% financial sense.