Liability question...

[tukinc]

We have been tossing this question back and forth for a few days amoung the staff here. We have staff from several different countries (and certification agenices), so we have varied opinions on the matter... what do you think? Situation is as follows:

Scuba instructors, divemasters, and rescue divers all employed by an underwater video and photo company in the Cayman Islands. Staff are sent out individually to cover different "trips" on various boats or on the "SeaTrek" helmet dive underwater walk. When on the "trips," we take photos or video at stingray city and during snorkling stops. On the helmet dive, we take video of the tourists while they walk around underwater. We are in the water as photographers or videographers, and not acting as professional divers.

If an accident were to happen while on a trip, what would our liability be? Technically we are subcontractors for the various "trips" and do not work for the boat itself. As an instructor in the water though, could we be held liable if someone were to get hurt "under our watch." I remember reading of a case where an instructor on vacation was sued when there was a dive accident on the boat he was fun diving on. He had nothing to do with the company, the boat, or even the accident, but was in the wrong place at the wrong time, and people found out he was an instructor.

As an instructor, I am proud of my accomplishments, and it often comes up in friendly conversation with the people on the boats. I do not advertise it, but if they ask, I tell them. Could people knowing my status increase my liability in the case of an accident?

Of course, if anything were to actually happen, I would be the first to jump in and offer my assistance. One of our staff actually saved a passengers life last month by jumping in and performing rescue breaths on an unconscious snorkler and then CPR once on the boat... the guy survived thanks to her help. Her training as a rescue diver helped, but she does not carry any tipe of insurance at this level. How would she be protected?

What about your liability insurance? I carry insurance for while I am teaching, and maintain it in case something were to come back at me.... but this is a non-teaching situation, does insurance still cover it?

Any opinions would be appreciated. Thanks

 

[nolatom]

Check out this very recent thread, which covers the same ground. Gist is the label may make you a more attractive target, but shouldn't affect your liability if you were not training anyone, nor their buddy, nor running or planning the dive as opposed to just filming it.

http://www.scubaboard.com/showthread.php?t=134834

 

[H2Andy]

If an accident were to happen while on a trip, what would our liability be? Technically we are subcontractors for the various "trips" and do not work for the boat itself. As an instructor in the water though, could we be held liable if someone were to get hurt "under our watch." I remember reading of a case where an instructor on vacation was sued when there was a dive accident on the boat he was fun diving on. He had nothing to do with the company, the boat, or even the accident, but was in the wrong place at the wrong time, and people found out he was an instructor.

the easy answer is have the divers on the dive boat fill out a waiver for your
company/staff

or have the waiver they fill out for the boat include a waiver as to you.


the long answer, is that so long as you do not act negligently towards
anyone who gets hurt, you will be ok. that doesn't mean you won't get sued.

in fact, having your professional staff in the water during an accident will paint
a target in your chest as far as getting hit with a lawsuit, even if you have
nothing to do with it.

given your professional involvement, i'd suggest a waiver to be on the safe side.

this is not legal advice. please consult an attorney qualified to practice
in your jurisdiction.

 

[ItsBruce]

I just submitted a manuscript for an article on this very topic to DAN for Alert Diver magazine. I did loads of legal research on the topic. Since I submitted the manuscript for publication, I'm not at liberty to provide you with a copy. The short answer is as follows:

As a general rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative steps to assist or protect another unless there is some special relationship between them which gives rise to a duty to act. However, this generl rule may vary from jurisdiction to jurisdiction. The rule I stated here is taken from California law, where a court actually held city paramedics were not liable for failing to help the victim of a shooting.

My interpretation: I won't let fear of being sued just because I am a DM deter me from getting my DM certification. Note, however, it is easy to sue someone. All it takes is having the filing fee. Winning a lawsuit, however, is a whole different story. Unfortunately, hiring a lawyer to defend you is expensive and you don't generally get your legal fees back if you win.

(Urge DAN to publish my article.)

 

[daniel f aleman]

Work in Mexico - we laugh at lawyers.

 

[Scuba_Steve]

Work in Mexico - we laugh at lawyers.

That's the truth. It's diver beware over there in the land where anything goes. Great place, but I doubt you'd win anything even with a signed confession of guilt.

Kinda a different place than the "civilized" world though............lol

BTW that cop that rolled us owes my buddy $20.00 USD

 

[rmannix]

If you're in the water, on the boat, own the boat, work in the shop, own the shop, or are an equipment manufacturer and someone has an accident, somebody will sue you.

 

[SKBRDVR1]

I once sat in a roundtable discussion on this topic at DEMA. The panel consisted of six "diving knowledgable" lawyers 3 Instructors (each from a different agency) and 2 working DM. After a lengthy session, the only thing resolved was this. Depending on who, where and when you can be sued. You will then have to bear the burden of proof. If at that time, this "evidence" is believable, charges can be dismissed. A liability waiver does not stop a lawsuit, it only gives you credence in your argument.

 

[H2Andy]

A liability waiver does not stop a lawsuit, it only gives you credence in your argument.

it does more than that. it allows you to move for a Motion to Dismiss based
on the waiver, and perhaps you'll win at that stage (unlikely)

it also allows you to file for Summary Judgment, and your chances of
winning are rather good.

thus, a waiver gives you a good chance to terminate the lawsuit relatively
early. without a waiver, you'd have to slog it through the full trial.

if i had to pick, i'd pick a waiver any day.

 

[H2Andy]

I won't let fear of being sued just because I am a DM deter me from getting my DM certification.

Its Bruce, that's not the issue here (that's the other thread).

the issue here is having videographers in the water to film divers, where
the videographers are not employed by the boat.

if something goes wrong, can the videographers be sued?

yes, they can. anybody can sue you for anything. but with a waiver,
they will have a much better defense.

get a waiver. there is a reason why they are out there.

your next line of defense is that you did not do anything negligently.
but that gets a lot more expensive, and may involve a full trial.