Does anyone check the safety record?

[tridacna]

A NJ diver recently settled with a store/instructor for $700,000 for injuries sustained in a 240 ft dive. (Jan 31 2003 in Ocala Fl). This instructor had been involved in other accidents including the death of an assistant prosecutor in NJ. I met the instructor several times in his store. He is out of business now - not sure if he is "insurable".

The insurance company (Lloyds of London) tried to dismiss the case twice claiming that the victim had signed a a risk release. They lost.

I'm curious if we need to check the safety record of instructors/stores before getting training. Maybe keep records like we do for doctors?

This was another of his "mistakes".

New Jersey Court Cases - Court Case Law from NJ - New Jersey Court Opinions

 

[fisherdvm]

If you have a license to practice medicine, and you can not get insurance because you killed too many patients. Guess what? You can still practice medicine. Only without insurance.

How can you tell? There is no way to tell.

In the same way, if you are a scuba instructor, and you lose your liability insurance. PADI will not revoke your instructor certificate. At least until your next renewal date (an annual event). From what others had said in the Go Pro section.... in some countries, PADI does not require liability insurance of their instructors or divemaster. Only the US do they require that insurance to be carried.

If you call PADI, they can only verify the instructor's status. If he is active, that means that he had liability insurance the last time he renewed his instructor's certificate. At least that is my understanding.

 

[tridacna]

If you have a license to practice medicine, and you can not get insurance because you killed too many patients.

Yes...BUT...I can check his/her records (at least in the US) and decide whether I want to use them. We could make the database comprehensive. "Require to buy shop gear", etc etc...

 

[Scubakevdm]

A NJ diver recently settled with a store/instructor for $700,000 for injuries sustained in a 240 ft dive. (Jan 31 2003 in Ocala Fl). This instructor had been involved in other accidents including the death of an assistant prosecutor in NJ. I met the instructor several times in his store. He is out of business now - not sure if he is "insurable".

The insurance company (Lloyds of London) tried to dismiss the case twice claiming that the victim had signed a a risk release. They lost.

I'm curious if we need to check the safety record of instructors/stores before getting training. Maybe keep records like we do for doctors?

This was another of his "mistakes".

New Jersey Court Cases - Court Case Law from NJ - New Jersey Court Opinions

It seems like this was actually more about whether or not the execution of an exculpatory release bars action by heirs in a wrongful death case. The brief description of the events don't really paint a picture of negligence, seems like a terrible accident.

 

[tridacna]

It seems like this was actually more about whether or not the execution of an exculpatory release bars action by heirs in a wrongful death case. The brief description of the events don't really paint a picture of negligence, seems like a terrible accident.

In the first case, there was clear negligence. Not enough detail to determine facts in the second. But...a sharp warning to to NJ dive /instructors/operators/stores that waivers will not protect you.

 

[jviehe]

Waivers can not protect you alone, but they are valid tools in demonstrating that a person understands risk. No waiver can protect you against negligence.

 

[ClayJar]

No waiver can protect you against negligence.

At least in some jurisdictions, an informed, well-executed waiver can protect you from simple negligence. On the other hand, as a rule of thumb, a waiver will not defend against gross negligence. Still, it's all a matter of degrees (which is why we have courts).

Allowing someone to dive with (unbeknownst to you) untested gear that subsequently fails on the dive and precipitates an incident may be negligent; allowing someone to dive a wreck solo at 200 fsw in a ripping current at night on a single AL80 when you know they have a total of five logged dives (all last weekend during their short course and checkout) would almost certainly be *grossly* negligent. It may be determined that a waiver signed in the former case would hold (perhaps there was language with which the diver acknowledged his responsibility for checking his own gear, as is taught in every class), but I would be shocked if a waiver protected the parties in the latter case.

Now, as for the thread topic, except for the public lists of suspended or terminated members that are available from (at least some of) the agencies, I know of no place where a diver could find a list of incidents. Insurance companies certainly don't put out lists of juicy targets for personal injury lawyers to advertise against on educational cable channels. Word of mouth just doesn't scale well (and it's not too reliable, either). You can check that they're active status, but that doesn't tell you how good or poor they are any more than checking for a valid drivers license lets you differentiate between courteous and demon drivers.

If only there was a diving equivalent to Texas license plates. Then you could see one coming and know to get out of the way! (Hehe, love you, Texas! even if your drivers scare the *tar* out of me )

 

[String]

Waivers are worthless here. You cant waive negligence no matter what you get them to sign.
Thats why i laugh at all the PADI operations here making people sign the standard waivers knowing they're completely meaningless. Its annoying as just takes extra time and paperwork for no real world use.

 

[scubamax]

I am no lawyer, nor am I married to one, but waivers do serve a limited purpose. After all, no lawyer in the US worth their salt would tell a SCUBA instructor to not get waivers signed, otherwise they would be potentially negligent in their advice.

That said, I think waivers do help in fending off nusiance matters early, but as previous posters have indicated, its a matter of degrees and case specific nature of the matter. They also give some degree of a defense to the instructor which may help their case in certain situations. There is tons of case law in many jurisdictions (and books on the subject) of liability waivers and their validity etc.

So no, waivers will not protect you from injury as a student. Insurance won't either.

Certification agencies would probably not be in favor of a public database, since it would call attention to the agencies who certify the bad instructors which is unwanted PR at best. This action may perhaps spurn more regulation of the sport, and this is not in the interest of the "self regulating" SCUBA industry. Sort of like the guns...prevent even a hint of erosion of the status-quo environment in order to preserve the rights as currently provided under the rules...

 

[InTheDrink]

Interesting also that the N.J. talked about the right of heirs, who inherently cannot exist at the time the contract was signed (and heir exists after the will is executed). So whilst in this case the waiver could not negate the right of heirs in a wrongful death action, perhaps it could have protected the insured/instructor in the case where the signee was simply injured assuming it was the diver himself who brought the action. In any event, it appears that interpretation of these waivers differs greatly from place to place. Ultimately though, my feeling is that in general it is difficult to contract out gross negligence. I'm not a laywer, but you can see how gross negligence in the general duty of care is rarely going to be an acceptable defence. And this is good - I dislike law getting involved in risky activities, such as diving - otherwise it would be impossible to get any training etc., but major negligence by a contracted agent should be legally considered negligent.