"Family of drowned Tennessee diver sues dive shop"

[Dan]

I wonder what they mean by "insufficient oxygen in scuba tank". Do the plaintiff attorneys expect that the divers are supposed to breath pure oxygen & air (21% oxygen) is considered insufficient oxygen or there are elevated CO2 concentration in the tank? Obviously the attorneys are not scuba divers.

 

[Wookie]

Here are all of the ratios and requirements for the water portion, this does not include the actual teaching standards. Do you want those also?

What that says is, DSD is a max ratio in confined open water of 4:1 (which is most folks beef) or in open water on a descent line of 1:1 which is fine. I think most insurance companies and other training agencies have lowered the DSD ratio to 2:1, I know my insurance company has, and I know SDI has (I am an SDI and PADI instructor, and have only taught DSD PADI, back when it was 8:1), but I'm not sure about others. And in Thailand or Bonaire where you can count on 50 feet of vis, 4:1 is probably correct. Not in a lake in Utah or at the Destin jetties.

Edit. Here is the instructor guide with all standards and procedures.

 

[Wookie]

I wonder what they mean by "insufficient oxygen in scuba tank". Do the plaintiff attorneys expect that the divers are supposed to breath pure oxygen & air (21% oxygen) is considered insufficient oxygen or there are elevated CO2 concentration in the tank? Obviously the attorneys are not scuba divers.

I'd expect that as soon as they realize how dumb they are they will bring on an expert at suing dive companies like Rick Lessor or Alton Hall. Rick used to defend all PADI lawsuits, but he switched sides. Alton is a PADI MSDT and cave diver. He makes his living on Jones Act cases for commercial diver injuries, but isn't opposed to taking a quick PADI settlement.

 

[mdb]

I'd expect that as soon as they realize how dumb they are they will bring on an expert at suing dive companies like Rick Lessor or Alton Hall. Rick used to defend all PADI lawsuits, but he switched sides. Alton is a PADI MSDT and cave diver. He makes his living on Jones Act cases for commercial diver injuries, but isn't opposed to taking a quick PADI settlement.

You know the playing field and the players.

 

[kelemvor]

Only $15,000? Sounds like they might just be after the money necessary to bury the guy. I thought wrongful death suits normally went into the millions.

 

[Jim Lapenta]

It depends on the jurisdiction where the suit is filed. Some have minimum amounts that must be listed. That doesn't mean it's what they are actually suing for. The complaint is likely to be amended several times once an expert is brought in. It is also not necessarily what a jury would award. It could be also that the suit was filed when it was, as it was, to meet a statute of limitations.

In that case you get something together, file it, and then there is more time to amend it.

As with other cases like this there is only a slim chance it will go to trial. There will be a settlement, insurance rates will go up again, training guidelines MIGHT be issued with recommendations to adjust ratios (as has been done and left to the discretion of the shop/operator/instructor), but seriously doubt any change in standards. Those have been asked for previously and went nowhere.

There seems to be, if you read the testimony in other similar cases, an acceptable level of loss so as not to have to make changes that would affect bottom lines.

 

[Diver0001]

I am wondering if this is going to be a repeat of a tactic we have seen before... "get thee under the bus instructor and take one for the team...by the way we sent our first round draft picks to help the other team "

The instructor was running the class, not PADI. Every instructor knows that you can't apply direct supervision to 3 students in an open water environment at all, let alone during the FIRST ever dive. As an instructor you are not permitted to leave a student unattended at all (let alone for 30 minutes). The onus is on the instructor to run the course in such a way that this cannot happen.

This instructor did not do that, which, by definition, makes his approach flawed. Standards say, in essence, "don't let this happen" and he did. That's not throwing the instructor under the bus. He has to account for his own decisions. PADI is not responsible for the individual decisions of instructors any more than the president is responsible for the individual actions of police officers who break the law.

So what happens in these cases is this: Keep in mind, I'm, not a lawyer but from the sounds of it neither are most of you so I'll try to explain it as best I can in layman's terms:

First of all there will be an investigation about the situation to determine if anyone has committed an actual crime. For example, criminally negligent homicide that could land the instructor or his employer in jail. In a handful of cases this actually leads to criminal charges. I think at least one of these cases was discussed at length on Scubaboard. There have been one or two cases of one buddy murdering the other while diving and trying to make it look like an accident, for example. This needs to be ruled out first.

Secondly, there will be an investigation into how this accident happened. PADI's defense (as always) will be that the standards are not to fault because the standards explicitly tell the instructor that he cannot leave a student alone, which obviously he has. This is not throwing the instructor under the bus, this is a rational finding that the standards did not prescribe actions (or lack thereof) that lead to the accident. In other words, this accident did not happen because the instructor followed standards. This is a normal step in all of these cases.

This DOES lead to the instructor twisting in the wind, at which point liability will be determined based on connecting the dots between duty of care, a conscious action (or lack thereof) that precipitated an accident and the actual physical harm involved. I guess you can see this as the part where they lay blame but it's logical to look at the instructor for this because it is the instructor who has the duty of care for this particular students, nobody else.

If the instructor plays it smart then they can pull their employer over the cliff with them by blaming the employer for the instructor's inability to fulfill their duty of care. I've actually seen that happen. It's messy and there are only losers but at least the instructor can deflect blame to some extent by doing this so they may be able to work again in the future.

My understanding is that deciding who is to blame (settling the question of liability) is required for the next step, which is to sue for damages. This can be a long process but if at the end of it all a cash settlement is awarded then the insurance companies (true to their business model of "whatever happens, don't pay") will try to tie it up in legal voodoo until everyone involves dies of old age. We hear about large settlements being awarded but when have you ever heard... I mean REALLY heard of a case of the insurance company actually paying it out? This is all to say that all the talk about deep pockets and naked chickens doesn't really matter because in reality, even if you ARE awarded damages, you'd have better luck getting snow to burn than you would getting the insurance company to actually take it's responsibility and do what the court ordered. This is the main reason that people settle out of court.

tldr;
So if you made it this far through the post then you'll see that there is much more to this than just PADI cynically throwing instructors under the bus. The instructor Effed up and ultimately the instructor needs to answer for it.

R..

 

[Wookie]

While you are correct, the standard is poorly written to be subjective instead of objective, or passive instead of active. The standard says not to leave students unattended when under direct supervision. Agreed. Passive. Then we perform an I.E. At the Green Latrine in Huntsville, TX or in Lake Travis, TX, both very popular training places. We perform this I.E. In 2-3 feet of visibility, which leads the instructor candidates to feel that that visibility must be OK if the course director does it, and the instructor examiner does it, than anyone can do it.

That's why I say PADI throws their instructors under the bus. They make a rule about student control, then demonstrate that it isn't really all that important.

Quarry diving is hard. I won't do it unless I have to. I would venture a guess to say that most training accidents happen in poor visibility. Is that because most training takes place in innapropriate places? Or because in decent visibility the instructor has an easier time maintaining student control and can head off potential disasters before they happen. Only PADI knows why they allow passive standards, but I suspect I know too.

 

[CuzzA]

So the way I see it is the complaint is pretty weak and there's also some credibility issues.

The complaint claims the victims fins were not the right size, the BC was faulty and there was insufficient "oxygen" in the tank. IIRC, the gear was found to be in proper working order and there was plenty of gas left in the tank. The fin issue is peculiar. I'd like to know what fins were used. Most rental gear I've seen used are adjustable one size fits all.

The weather claim is contradictory as well, as the investigators said weather conditions were fine. Current is often times hard to gauge and for a new diver they may believe a .5 knot current is 2 knots. How do you prove this in court if it weren't independently verified by an investigator.

Finally it sound like there's some problems with the PADI guidelines. The PADI rules say you can have a 4:1 ratio and after going over all the training the instructor must supervise the dive. I suppose an issue could be raised based on the standards since the instructor must lead and supervise the dive. Kind of hard to do both at the same time and keep your eye on everyone. But again, the instructor wasn't named as a defendant.

@kelemvor Circuit civil is $15k and up. The complaint didn't mention how much they were looking to be rewarded.

 

[boulderjohn]

1. Several years ago, a lawsuit in California over alleged negligent acts of a couple of DMs included PADI in the suit, claiming that the DMs were "agents" of PADI, even though PADI did not employ them, set working conditions and policies, or supervise their activities. It was a big surprise when that notion prevailed--I don't think that relation had ever been found in any lawsuit before. Since then the standard PADI waiver includes a clear statement that the instructor, DM, or whatever is not an agent of PADI. You have to sign that in order to do the class.

2. All the references to throwing someone "under the bus" go back to a similar Discover Scuba fatality in Utah, in which several people active in both that thread and this one made just such a statement repeatedly. In that case, the instructor violated a number of standards. In fact, he probably violated more than he followed. PADI investigated and expelled him within a week. The subsequent lawsuit named the instructor, the dive operation, and PADI, repeating the claim that the the instructor was an agent of PADI. The instructor was insured by an agency that is actually owned by SDI, and SDI and the instructor based their defense on the premise that the instructor had followed all standards to the letter, so all the actual blame for the incident lay with PADI and its standards. PADI made a separate early settlement and was removed from the case but tried to stay with the case so that they could defend the standards. (You will see the same claim being made here.)

At that point SDI published an open letter saying that the instructor had violated no standards and PADI should be blamed for both the incident and for abandoning their poor instructor (pun intended). They said that SDI would never do something like this to one of their instructors (including, I assume, one who was putting all the blame for an incident on them and their standards). This open later made quite a splash, and PADI eventually made the unprecedented move of writing their own public letter detailing all the standards the instructor had violated. Months after PADI detailed the standards violations, SDI/TDI repeated its original letter saying that no standards had been violated when it sent its annual renewal letter to its instructors.

There is an extensive discussion of this in the Scuba Related Court Cases forum.

3. Like some others, I cannot believe the instructor is not being named. He ultimately made the decisions he did. There are many ways to handle a situation like this in poor visibility. PADI provides guidelines to help instructors make decisions when instructing in poor visibility. There is currently a discussion about this in the Instructor to Instructor forum in which I went over a lot of this. There was a similar discussion several years ago in the instructor to Instructor forum.

4. The claim of the shop being a guiltless middleman between the student and an independent contractor instructor may turn out to be an interesting development. I, too, was an independent contractor doing instruction on behalf of a shop. The shop has since stopped playing that game, because that is exactly what it was--a game to avoid dealing with labor laws in terms of compensation and taxes.The shop set up and scheduled the classes and assigned the instructors to them. They established all the rules regarding the classes and the instruction. By all the rues, the instructors had to be considered employees and treated as such in terms of pay and tax laws. The shop benefited financially by pretending its instructors were not employees, but eventually the shop's attorneys made it clear that it was too risky to continue with that illegal game. I am guessing something similar is going on here.