Hiding your certification level

[adurso]

This thread is proves something that I have been saying for years....one of the problems in the USA now is that we have become too litigious and too many people are refusing to be responsible for their own actions. *SNIP*
, but people sue for anything, like burns from hot coffee. *SNIP*

Interesting how the coffee case comes up whenever a discussion arises regarding a highly litigious society; because the MacDonalds coffee case is legit.....

The victim suffered full thickness burns from being served coffee that was known by the company to be toohot and being served outside of their own parameters. The victim originally sought medical compensation; not wealth. When unable to proceed, a suit was filed, then settled out of court with a non-disclosure.

The actual facts of that case are fascinating, and not frivolous by any means.

For a full accounting see: The Actual Facts about the Mcdonalds' Coffee Case

 

[boulderjohn]

Interesting how the coffee case comes up whenever a discussion arises regarding a highly litigious society; because the MacDonalds coffee case is legit.....

For a full accounting see: The Actual Facts about the Mcdonalds' Coffee Case

This is perhaps the most famous example of a common occurrence that (mis)drives our decision making. We hear a piece of information, usually from a too brief or sensationalized story in a newspaper, we imagine the worst, and then we act on that imagination.

Another example is a case in which it was widely reported that a man had gotten off on rape charges because the victim was wearing a revealing outfit, including a lace skirt. The conclusion people generally made was that the jury figured that the victim was at fault because her clothing provoked the rape, and the population was generally outraged.

That perception was as inaccurate as the McDonald's case, though. The woman claimed she was abducted and raped while innocently going out for a bite to eat; the man said she was a prostitute, and he was just engaging her services. The evidence that she was a prostitute, only part of which was her clothing, was overwhelming. Jurors interviewed afterwards said that if she had said that she was a prostitute who willingly went with the man into a situation that later got out of control, they would have convicted him, but since she was clearly lying about circumstances, she had no credibility.

To get back to the topic of the thread, this is an example of what I said earlier--because of exaggerated stories like this, we tend to let fears of highly unlikely risks stop us from taking very reasonable actions.

 

[leapfrog]

I agree with H2O Gal's post and I think the statement Personally I know I have chosen a sport that can potentially result in death is a big eye opener!

What sport cannot potentially result in death? I run almost every day. I can die of a heart attack, a stroke, a car can run me over? Who should be sued? Nike, for giving me the tools to kill myself with? (In the case of being run over there will be an issue of whether I should have been running where I was or not or whether the driver ran me over at a crosswalk).

I have seen with my own eyes two cases of theoritically fit and able people dying in the gym. Neither the gyms or the fitness monitors were sued.

Maybe we really need to get the statistics out of how many people die or are seriously injured doing what?

In comparison to other sports, the incident rate, per number of participants, is much lower than many other sports. For example, cycling has an injury rate of seven times that of diving. Even golf carries 1.5 times the risk that diving does, according to the U.S.-based National Safety Council, which figures accident rates based on reported incidents and approximate number of players. Percentage wise the NSC publishes these figures for sports related fatalities:
Football 2.17%
Baseball 2.09%
Basketball 1.86%
Soccer 0.91%
Volleyball 0.37%
waterskiing 0.20%
Raquetball 0.17%
Tennis 0.12%
Swimming 0.09%
Bowling 0.04%
Scuba 0.04%



So on the question of not showing a DM or instructor level certification because of liabilities I think it depends where you are and the way the law works in each country.

Certainly in Europe I think it's the other way around from the States. By NOT saying you were an instructor, at least to the LDS, you may well be found at fault. There would also be a question of whether you are in teaching status or not. If you are not and you say so, then you're probably, from a legal point of view, just another diver who happens to have passed an instructor level exam. If you are in teaching status and you choose NOT to inform the LDS where you happen to be diving for fun and something goes wrong and you are involved, then the authorities are going to want to know why you chose not to inform the staff that you were a teaching status instructor. It will look very suspicious and as if you were withholding that information for a reason.

To claim that you withheld the information because you just wanted to enjoy your dive...

 

[Walter]

authorities are going to want to know why you chose not to inform the staff that you were a teaching status instructor.

If they ask, I'll tell them. I don't automatically tell everyone I'm nitrox certified or that I have a coral reef ecology certification or that I'm qualified to penetrate wrecks. If I'm doing something that requires those certifications, I show them. Even when I'm not, if they ask, I'll tell them.

 

[leapfrog]

If they ask, I'll tell them.

Water, hi. When I said "the authorities are going to want to know why you chose not to inform the staff that you were a teaching status instructor", I was specifically referring to continental European police forces and "Judges of Instruction" The former really don't care what you say. In fact the more you argue with them, the more likely you are to be detained instantly for 48 hours in very disagreeable conditions. They can do that and then release you if charges are not pressed. If charges are brought against you, you could be in for a very long haul before ever entering into a court room.

Judges of Instruction are not Scubaboard gurus but are judges that visit the site when their has been a fatality and another person or persons may have had something to do with the death. Their job is to find a culprit.
They know nothing about diving nor do they care.

To put it into context. Another diver, OW certified, goes to the LDS that certified him and was given another instabuddy of more or less same level of training. You turned up and were instabuddied with a DM who works part time there because the store didn't know you and you said you were AOW+Nitrox, so the store decided to keep an eye on you. The **** hits the fan and the OW diver dies as a result.

The store will say that if they had known that you were an instructor that their DM would have dived with the deceased and you would have dived with the guy that buddied with the dead guy...

So you just became an instaculprit by not having stated that you were an instructor!

Pretty weird thinking but that's how it goes over here!

 

[KY_BOB]

I'm not an instructor but I find this thread HIGHLY interesting partly because of my profession. I'm an insurance agent.

I would like to thank Bruce for bringing up 2 points.

There is a frightening amount of bad information and advice here. For those who are not lawyers, it is probably best not to be giving advice about potential liability.

That is very true in my profession as well as yours. You should not take legal advise form some "Joe Blow" on the street, just as you shouldn't take insurance advise from someone not trained in it. There are a lot of "experts" out there that are a legend in their own mind. I'm blown away but some of the things that people think about insurance because they believed what the guy at the restaurant told them.

To me that's comparable to someone who has never been diving giving one of us advise on how to dive. We would blow the person off knowing that it was bogus advise but people still take legal and insurance advise from the morning coffee buddies.


Point # 2 in my next post:

 

[KY_BOB]

As far as insurance, unless one is engaged in a "business pursuit" or a "professional activity," a basic homeowners insurance policy or renter's insurance policy with liability coverage will probably cover a diver's liability. Being a DEM or instructor does not mean one is engaged in a "business pursuit" when one is diving on one's own time for recreation.

This is a topic that I'm as qualified to speak on as Bruce. He is 100% correct. Being an instructor, you could be held to a higher standard (maybe, maybe not, I'll leave that up to Bruce) but if you are not attempting to make a profit, personal liability insurance from your homeowners or renters policy will cover you. As importantly, it covers defense cost which can be very expensive.

edit: I will add one thing. If you are an instructor AND offer to dive with someone to help them you would be acting as a professional, paid or not. If you are acting as a professional, you personal liability would not apply and you had better have a professional liability policy. I know that this thread is about the times that your not acting as an instructor but I thought I would throw that in.

 

[Doc]

edit: I will add one thing. If you are an instructor AND offer to dive with someone to help them you would be acting as a professional, paid or not.

Offer, as in "agree to buddy up" or offer to dive with someone to help them?

Dive with, as in "along on the same dive as the group"

To help them, as in to offer assistance once underwater or to talk to them in advance?

Here's where the rubber meets the road. What was the relationship between the off-duty instructor and the unfortunate plaintiff?

Offer to dive... with someone.... to help them.

Offer to... help them.

This is where Bruce comes in. He's a litigator. Me? I have the degree but never passed the Bar. (Or for that matter, a beer wagon, either)

 

[Walter]

When I said "the authorities are going to want to know why you chose not to inform the staff that you were a teaching status instructor" I was specifically referring to continental European police forces and "Judges of Instruction" The former really don't care what you say.

They either want to know or they don't. If they want to know, they'll ask. If they don't care what I say, they don't want to know.

In fact the more you argue with them, the more likely you are to be detained instantly for 48 hours in very disagreeable conditions.

What argument? Answering questions isn't arguing.

Another diver, OW certified, goes to the LDS that certified him and was given another instabuddy of more or less same level of training. You turned up and were instabuddied with a DM who works part time there because the store didn't know you and you said you were AOW+Nitrox, so the store decided to keep an eye on you. The **** hits the fan and the OW diver dies as a result.

The store will say that if they had known that you were an instructor that their DM would have dived with the deceased and you would have dived with the guy that buddied with the dead guy...

Why would they be watching the more experienced diver instead of the less experienced diver? Sounds like we've already found the screw up.

So you just became an instaculprit by not having stated that you were an instructor!

Sounds like this would apply to active status and non-active status instructors equally.

When you show up to go diving, do they ask if you are an instructor?

 

[KY_BOB]

Offer, as in "agree to buddy up" or offer to dive with someone to help them?

Dive with, as in "along on the same dive as the group"

To help them, as in to offer assistance once underwater or to talk to them in advance?

Here's where the rubber meets the road. What was the relationship between the off-duty instructor and the unfortunate plaintant?

Offer to dive... with someone.... to help them.

Offer to... help them.

That's why I put the "and" in bold letters.

Here's a made up scenario. Diver A mentions that he has buoyancy problems, Diver B says "I'm an instructor, I'll dive with you and help you with that". IMO He is acting as a professional even though he isn't being paid.

Again IMO, if you diving with or even if your buddied with someone and haven't held yourself out to be a professional diver, first (as Bruce has already said) I don't think that you would be held liable but secondly your personal liability coverage could apply if you were to be sued since you were acting as a buddy and not a professional.



Here's where the rubber meets the road. What was the relationship between the off-duty instructor and the unfortunate plaintant?

Agreed, that is the question.