Liability of going pro?

[Phil_C]

Rescue Diver: The name of this cert needs to be changed. The person who obtains this cert is not a AF PJ, is not a navy corpsmen, is not a public agency safety diver, is not a USCG SAAR swimmer or diver, is not UDT, is not SEAL, is not a RANGER, and is not DELTA.

My wife has the Rescue Diver cert. She learned many things in this course, some of which she has used in real life to help people who were distressed. It was a very good course and we are both glad she accomplished it. However, she is not a RESCUE DIVER! Words mean things. One weekend on California's North Coast did not make her a RESCUE DIVER!

If we are involved in an accident and get sued, I am sure the plaintiff's attorney will repeat ad nauseam that my wife is a trained and certified RESCUE DIVER.

markm

Yep - absolutely, PADI and every other agency marketing strategies to sell courses - it is exactly the same with "Advanced Open Water", "Deep Diver", "Stress and Rescue" and every other recreational cert with an exciting name that you can get with a dozen or so dives (and in many much less than that).

The agencies, all of them, market the image, look at the youtube adverts for rescue courses, to make people feel good (and important) about being a rescue diver, advanced diver, and so on, when in reality rescue diver teaches the theory of incident handling and the basics of self and buddy rescue skills, and advanced teaches you the basics and theory of going a bit deeper and so on, they do not make you an expert.

Neither really make you a rescue diver or advanced diver in any true sense of the meaning of the words, and if you do not practice what you learnt and ingrain the skills into muscle memory after the course through daily diving then pretty soon you are no longer competent ion the skills.

Years ago I used to dive with a police search and rescue team. The team did two whole days each month just training and honing skills, and usually had deployments in between. Anyone who didn't train and practice and re-certify was off the team.

The whole team had commercial certs and the team was competent and instinctive in what they were doing.

Compare that to someone who makes maybe a dozen or so recreational dives on holiday each year, and the "name" on the certificate becomes meaningless.

Would I be competent now in what we used to do on the team? - not a hope, I no longer dive that type of equipment or do those types of dives, I could probably pick a lot back up with a refresher at best, but would need retraining from scratch to re-certify.

The only way to make titles like rescue diver meaningful is to have a far more comprehensive initial course, with a rigorous examination, not just of the skills themselves but of the candidates ability to apply those skills in all circumstances and with all types (and size) of diver, and then crucially they have to be subject to a system of re-certification every two to three years.

Otherwise the cert is simply evidence that at one point in time you were taught basic skills and showed basic competence in applying them, and gives no idea about actual your skill level or competence now.

No agency is ever going to admit this, it would be commercial suicide, BUT crucially for divers until this is recognised there will always be the danger that lawyers will latch onto the title rescue diver, advanced diver and so on and in the minds of courts or juries who do not really understand you will be viewed with these rose tinted glasses as an "expert" diver because of a ticket that says advanced, rescue or "master scuba diver" and so on.

The other thing to remember is that it is likely the vast majority of SB members are active divers, I dive each week, often more than once, but that is certainly not true of the vast majority of people who hold recreational C cards. I have never seen any research but I would guess that most 'qualified' divers may only dive on vacations, and even then maybe not every year, yet they still hold cards with titles like Advanced, Rescue Diver, Master Scuba Diver and so on.

Now I will go and get my tin hat out - Phil

 

[chrisch]

.....
Otherwise the cert is simply evidence that at one point in time you were taught basic skills and showed basic competence in applying them, and gives no idea about actual your skill level or competence now....

Isn't that true of every certification - we are only getting some basic education for a hobby after all.

 

[Phil_C]

Isn't that true of every certification - we are only getting some basic education for a hobby after all.

Yes, but the problem is one of perception, by giving card names like Rescue Diver, Master Scuba Diver and so on the industry creates in peoples minds, especially those who are non-divers but also some divers, the impression that these cards mean more than a basic education for a hobby.

Presented in a court, the title Rescue Diver, or Master Scuba Diver, and so on creates the false impression the person is an expert. Certainly not the case most of the time, and potentially dangerous if a court measures what someone did against what an expert could have been expected to do!

But then how many courses would PADI or any agency sell if they called the qualification, "open water, with a few extra dives and a little bit of deeper diving experience"? - not half as many I expect as they sell Advanced Open Water ones.

Have you spotted my soapbox yet - Phil.

 

[Trace Malinowski]

The lawyers will go after the money. Having millions in liability insurance might entice them to zero in on an instructor. The most important thing you can do if you are a dive professional is act accordingly in any given situation that recognizes "due care." If you are teaching and part of your responsibility is to ensure the safety of your students then you have "a duty to act" since you are on the job the same as a lifeguard in a tower. If an incident or accident is occurring and you do not have a duty to act then you need to assess whether or not to stay out of it or to render assistance. If other dive pros such as a boat crew do have a duty to act and are handling a situation it is best to stay out of it unless asked to help. You might get in the way and slow things down otherwise. A lifeguard not on duty, especially on someone else's beach, might get in the way of a rescue even if he is better trained or even a lifeguard instructor. There is no easy answer because a lawsuit depends upon the situation. Juries are human and people tend to expect one another to act in a way that will prevent an accident and act prudently to save lives if an accident occurs. A jury in Texas might be more conservative and expect a victim to assume more responsibility for his safety than a jury in New Jersey which may be more liberal. In cave diving we have an "if you see something (unsafe) then say something" attitude to prevent accidents. If you are a pro and you think someone is going to do something unsafe you may want to say something which can be seen as acting in due care to prevent an accident. As was pointed out good lawyers will find out everything (including C-cards and experience) if they want to build a case in a certain direction. A good expert witness for the defense can explain what all the impressive sounding C-cards really mean.

While not diving related I had a laughable experience with the law in front of a judge. He found me responsible for multiple parking violations someone made after he stole my SUV. The judge felt it was irresponsible of me to leave the vehicle near the road at my girlfriend's apartment complex with a FOR SALE sign on it. Same judge got his son off a drug charge and got him a job with the city.

 

[scubanerdnick]

So every thing I have ever heard of advancing to the DM or higher levels is that "you're liable forever". Is that true? Are you liable outside of a classroom/teaching environment?

Can someone tell me liability in the following scenarios:
1) I am on a boat with 5 other people. 1 of those people is my buddy. Of the random 4 people, someone has an accident and dies. Am I liable?

2) I am on a fun dive with a friend. He decides to bring along a stage bottle, not for deco, but just to have extra air to play with at depth for longer bottom time. I am an instructor in decompression diving, and stage handling, but this is not a class, just a fun dive. He doesn't have a card that says "stage training" or some such. Am I liable?

3) I am on a fun dive with two friends. We are scootering. 1 friend has lots of experience on a scooter. Another has minimal experience/it is their first scooter dive. Neither has a scooter card. Minimal experience diver has an accident. I am an instructor scootering, but this is not a class, just a fun dive. He doesn't have a card that says "scooter training" or some such. Am I liable?

I understand that this is the United States, and one can be sued for any reason, at any time. But the real question is...am I liable?

I think you've asked an excellent question. Many folks have chimed in on the potential legal aspects you mentioned but I wanted to ask something slightly different. In the situation you described you were the most experienced, a known instructor, etc. For instance in your deco bottle scenario with your friend couldn't you have perhaps offered/insisted on giving him a class free of charge before your boat dive? I guess in reading through your message I wondered about what was stopping you from providing the training you mentioned being able to provide? When I weighed my decision to become a DM/scuba instructor I thought about how I was when I was on dives. I was attentive and constantly looking out for the other people I'm diving with. I stayed close to my buddy but was also always trying to keep an awareness about everyone else in the water.

Why did I do this? Initially I thought it was from years of being in the military and feeling responsible for people regardless of where I am. But that's not it, I think the real reason I did it was because I simply didn't want anyone to die while diving because they had an accident I could have helped prevent. So even before I was a pro I always did my best to make sure the people diving with me are at the appropriate level for the dive and if they are not I let them know. If they insist on diving still then I simply paid attention to them, informed whoever they were diving with of their shortcomings, and raised my awareness level. I don't think you should look at being an instructor as an open opportunity to be sued in any given situation but an opportunity to teach those divers you're diving with how to dive properly.

Just my two cents and this being the internet take it for what its worth. Excellent question to ask and a great discussion that followed though.

 

[t-mac]

Like most things in life (and especially in law), there are few bright lines. The OP asked "am I liable?" This does have a simple, yet unsatisfactory answer. You are liable as soon as the judge or jury say so or you admit to it. The risk of being found liable is more nuanced and it revolves around the "duty of care" mentioned by several people -- at least in countries with the English common law system, like the US.

If you are an instructor and divers are under your supervision, you have a duty of care and the question is what exactly it is and whether you breached it. If you are an experienced diver simply sharing a boat with someone you never even noticed or talked to, you don't have a duty of care. A duty of care can't be foisted on you, you need to accept it. Everything else is highly fact specific. Did you give the diver some advice about their rig? Reattach their octo? Those are starting to suggest things upon which adverse inferences might be drawn if something happens. For me, a scary line is when you get buddied up with someone. It doesn't take a creative genius to see how that argument would play out even just as a buddy, and even more so when you have superior training -- like a Rescue Diver! It's hard to deny you have assumed some duty to that other person -- your are trained to understand that you are there to help your buddy?

The recent case in Malta is particularly sobering. Bear in mind, this was a CRIMINAL case, which means potential jail time, not "just" a financial down-side. I can easily see how someone could make the case that he had an enhanced duty of care because of his training that he breached (I don't agree with it, but I can see the argument) and if this were a civil case I would just chalk it up to aggressive lawyers chasing money. It is terrifying on a completely different level when a state actor fails to use its discretion to resort to common sense and decides to try and deprive someone of their personal liberty. What if BSAC hadn't made such a stink?

Sorry for the slight diversion, but while there is no bright line, my personal guideline is to TRY and avoid appearing to assume a duty of care, if possible. That is not always possible or sociable and it does not mean I will not help someone in need or who even wants a favor or needs some advice, but I DO think about it. I am very reluctant to buddy up with someone I do not know for this reason. I hate that it is that way, but it is the world we live in and its where my personal line tends to live. Like everything in life, you can't avoid this risk unless you live under a rock. Sometimes crazy things happen, but they are hopefully rare and I'm not going to let that risk ruin my life.

 

[markmud]

[QUOTE="t-mac,
Quoted in part; emphasis added by markm.

It doesn't take a creative genius to see how that argument would play out even just as a buddy, and even more so when you have superior training -- like a Rescue Diver!

What if BSAC hadn't made such a stink?

Sorry for the slight diversion, but while there is no bright line, my personal guideline is to TRY and avoid appearing to assume a duty of care, if possible. That is not always possible or sociable and it does not mean I will not help someone in need or who even wants a favor or needs some advice, but I DO think about it. I am very reluctant to buddy up with someone I do not know for this reason. I hate that it is that way, but it is the world we live in and its where my personal line tends to live. Like everything in life, you can't avoid this risk unless you live under a rock. Sometimes crazy things happen, but they are hopefully rare and I'm not going to let that risk ruin my life.[/QUOTE]

Hi t-mac,

+1

Your statements above express my thoughts on these issues very well. The emphasized phrases are bull's-eyes!

markm

 

[dumpsterDiver]

Doesn't transitioning from a recreational certification to a PROFESSIONAL certification (where the emphasis and intent of the certification) is to place the "professional" person in a position of RESPONSIBILITY for another, come into play?

Isn't this why practicing professionals need liability insurance, while recreational divers -even advanced technical divers (who have had much more organized training) do not?

I don't know if it is a valid concept, but I always felt that going to the DM cert. greatly enhanced your vulnerability to legal persecution.

 

[driftwood]

Here's the rule I learned in real estate. Once a professional, always a professional and always disclose the fact to whoever you are talking to. Even if your license to practice is not active.

Granted that the scuba industry is the wild west compared to real estate, but better safe than sorry. For that reason I stopped my scuba development path at rescue diver. An example is a broker lost his RE license for stating the carpet was "new". TREC ruled that the carpet was "used" at the moment the installers walked on it.

 

[t-mac]

Doesn't transitioning from a recreational certification to a PROFESSIONAL certification (where the emphasis and intent of the certification) is to place the "professional" person in a position of RESPONSIBILITY for another, come into play?

Isn't this why practicing professionals need liability insurance, while recreational divers -even advanced technical divers (who have had much more organized training) do not?

I don't know if it is a valid concept, but I always felt that going to the DM cert. greatly enhanced your vulnerability to legal persecution.

Legal "persecution" -- like that. Just because you are a professional it does not mean you automatically assume a duty of care to the world. That said, applying it to what I said above, you can see how you are at greater risk because of your now "even more superior" training on that same sliding scale and depending on how you handle yourself vis-a-vis others, they may get the "wrong impression" about your actions. Did you tell them you are a professional? Could they have gotten the wrong impression that you will be looking out for them and they can rely on you to save their butts?

The positive thing to say on the other side is that as a professional, if you are assuming a duty to another person, you likely would have a written agreement, with liability waiver, etc., because that is also part of your training and your normal business practice. If you can show that you normally do that in your professional activities, then it makes it difficult to at least claim you were acting as their DM/Instructor where no such paperwork exists. None of this shields you from legal "persecution" because if you are in this world, you are already in court. Best idea is to not act like a DM/Instructor unless you are doing your job, properly papered with waivers and properly insured. Simply being a professional doesn't make you responsible, but the more you act responsible the more likely someone will find that you are in fact responsible. Are you acting in a way that the other person might rely on you? That's when you start sliding down this path -- professional or not. Professionals should probably be more cautious. Running around a boat full of holiday divers bragging about being a DM is not something I would do -- puts you on a potential slippery slope.