Legal & other issues from SG Mishap

[Knight]

Seriously will you all just shutup about waivers, if I hear it again I sware it's gonna make me puke!

Always descending,
C.H.

 

[H2Andy]

Can a person waiver their fundamental rights of the heirs to sue?

so far only one court (in New Jersey) that i know of, has held that a waiver signed by Diver A, who then dies, does not prevent Diver A's surviving relatives from suing

it will be interesting to see if the New Jersey decision spreads

i am sure it will depend on each state's existing law as to whether people can waive their heir's right to sue in general, applied to scuba waivers (if the issue comes up)

 

[Boatlawyer]

I will grant that they do document a person's acknowledgement of risk. But I have to ask the question, Can a person waiver their fundamental rights of the heirs to sue? Ask an attorney for your insuring agent. I think you will find that they normally settle out of court.

Not all "heirs" have a right to sue. Assuming however, a minor child or spouse sues, then the issue is not whether their rights were waived, it is whether the diver by signing the waiver "assumed the risk" of the dive. Assumption of Risk is a defense to liability for negligence.

Don't need to ask an attorney, I "are" one, and consequently spend great deals of time reading case decisions on these issues.

As Andy says, the information is out there, the issues are complicated. The law reflects society's needs as the those needs evolve, so it is always changing.

 

[Blueskys4ever]

I think we could agree that if there was a tort claim, that the State of Florida would hold juristiction. I agree that the needs are ever evolving and this is a good thing.

But I have to ask the unpleasant question: did the operator have a duty to exercise control over the events on his vessel?

If he did, did his actions or in-actions affect the outcome? I think if I were DM on this trip, I might have noticed that they were entering the water without the proper gear.

 

[H2Andy]

I think we could agree that if there was a tort claim, that the State of Florida would hold juristiction.

not necessarily. they could sue in Federal court under Admiralty jurisdiction, and using admiralty law

or in Federal court under diversity jurisdiction ... but using Florida's substantive law (i.e. Florida law would apply)

 

[carldarl]

Not all "heirs" have a right to sue. Assuming however, a minor child or spouse sues, then the issue is not whether their rights were waived, it is whether the diver by signing the waiver "assumed the risk" of the dive. Assumption of Risk is a defense to liability for negligence.

You are failing to consider one important fact. The action of the divers is taking place in the public domain. Were a diver to perish on his/her own "real property" (Say a cave located solely on their property) with appropriate documentation, they may have a small chance. But, even then they don't have the right to endanger other peoples well-being by polluting an adjacent public water table.

This is probably not the best place to hold a legal debate as some of the points and issues could be insensitive to family and friends of these divers.

 

[Boatlawyer]

and maybe these guys did too (have the gear, training and experience)... Nobody who was there (inside) is alive to discuss what happened either; so probably we'll never know the truth. Could these guys have been overconfident too? Who is to say?? All we DO know is - if they had the gear... they didn't use it...

Here's the latest from the local paper - http://www.sun-sentinel.com/news/local/broward/sfl-cdivers18mar18,0,4219937.story

Now - a lot of people were wanting to discuss A&I topics, for lessons to be learned. This thread is all over the place with a whole lot, but very little in accident analysis.

What can we learn from this accident is already clear.

** If you're doing a wreck penetration; training is not enough... You must actually BRING the proper equipment required to make a safe penetration (wreck reel, enough gas)



I think the legal debate over who could sue who should be held somewhere else as well. To those who want to learn lessons, and analyze the accident. Here you go. Learn your lesson.



This statement - quoted from the Sun Sentinel tends one to believe the "overconfident" theory. no??

There are facts to discuss... the discussion IMO should be how to mitigate problems on a wreck dive.

Remember - Dive Safely

Well you can always count on a few things in a&i threads. There will be condolences to the family, there will be discussion as to cause and prevention. There will be legal/liability discussion. There will be someone saying one of the above does not belong on the thread.

It is interesting that they were in an area of the boat that was supposed to be inaccessible to the "public." If I were looking for liability in this matter, and I'm not, that is the issue I would be focusing on.

 

[del_mo]

And how would you ever concoct a law to protect us from ourselves. You can only have consequences.

 

[dave4868]

I'm anticipating that insurance coverage costs will become exorbitant because of insane damage awards, and that may drive dive charters out of the business, like it has certain medical specialists.

i am way too tired to go into why that is the market at work, and why we're better off with more expensive but also higher quality services

price is just information; you should be able to tell something about what you are getting by the price you pay

This isn't the "market at work" and higher quality services won't result in this area (of dive charters), unless you think it's worth it to improve the safety of a miniscule number of high risk divers at the expense of the vast majority who already dive reasonably safely with the many excellent dive charters.

If exorbitant insurance costs result from unwarranted legal actions, and those costs result in extremely high-cost and limited charter services, the value of what you are getting has dropped, unless the actual service has improved, which would be debatable.

For most divers, rather than the quality of the service (or safety) improving at that higher cost, I think it's more likely that the service would decline in quality because it would be harder to find a charter and they would probably have more onerous restrictions on the customers' diving.

Bizarre jury awards are not a natural function of the market.

Occasionally, they've prompted positive changes, but too often they have many negative impacts, including culturally.

I hope this discussion doesn't degrade to arguing "if it saves just one life, it's worth it."

"Worth it" may depend primarily on how much one values these particular freedoms, I think.

Dave C

 

[BKP]

In the ideal world, this is all true...in the real world, it isn't. If a surgeon loses three patients in one day, or a flight school has three crashes in one week, simply asserting "surgery is dangerous!" or "the pilots were stupid, it's their fault!" or "they all knew the risks, they signed waivers!" will not prevent external agencies from coming down like a ton of bricks --- even if these assertions are all entirely valid. ....

Big Difference...

In surgery, or as a flight passenger, you're trusting your life to someone *else*, and hoping *they* prepped properly (and this *should* be policed/regulated)... You can do nothing to enhance *their* skills to make you safer...
In diving, as in rock climbing, extreme skiing, sky-diving, etc... your fate is largely in your own hands, your own skills, your own preparation...

The tone should be; three of our community died on a pleasure dive and that, under any circumstances, is entirely unacceptable.

Agree with you entirely, on this...