Merged: Liability Releases - shop sued diver's death, Catalina Island 2005

[drbill]

Thal... I never thought an SPG was spot on. It would be great if they all were. There must be a certain tolerance level in the units?

 

[Thalassamania]

Positive "Zero Error" is the problem. Negative "Zero Error" just mean you have more gas than you think, error in other parts of the scale is less serious (10% of the reading, not the full scale, is tolerable there).

 

[openmindOW]

My opinion was, and still is, that it should not be possible to contract out of negligence law - particularly with a back of the ticket waiver. Society wants providers of goods and services to take reasonable care that these goods and services don't harm us.

Amen.

 

[Thalassamania]

Amen.

Amen.

 

[vladimir]

In a previous life I was asked to prepare a policy paper for a local government on restricting the rights of skiers to sue ski hills. I think the parallels with the dive industry are moderately obvious.

A ski hill had been successfully sued for a skier injuring themselves and the industry was panicking. They wanted the local government to pass a law to prevent the same thing happening here and to make the waiver printed on the back of the ticket effective. (The case was in the US; the local government was not) In this particular jurisdiction at that particular time a waiver was pretty much ignored by the courts if there was negligence involved.

To make a VERY long policy paper short my conclusions were that passing such a law would be a mistake. Passing such a law would remove any incentive that a ski hill had to ensure that they were not negligent and negligence law, is what ensures that providers of products and services take care to ensure that those products and services do not harm us. My opinion was, and still is, that it should not be possible to contract out of negligence law - particularly with a back of the ticket waiver. Society wants providers of goods and services to take reasonable care that these goods and services don't harm us. (The hard part of this is to determine what is reasonable)

A further conclusion was that if the ski industry wanted to advertise skiing as a safe activity suitible for all ages and ability then they were actively assuming the risk of the activity. If skiing had inherent risks they had better make those risks clear to everyone they allowed onto their property, not minimize them. That if they wanted to be absolved of the risks of the activity they had better make it crystal clear to their patrons that there was a risk to the activity to not advertise the activity as risk free. This is what got the original ski hill in trouble.

As a direct result of the government deciding not to pass such a law. The ski industry made a series of changes. Skiing in this jurisdiction is much safer than it was. An example - padding around towers in the beginner areas and posting the rules of the road everywhere - and enforcing them.

While there needs to be a degree of personal resposibility, there also needs to be a balance. Who is best situated to determine the safety of a particular piece of gear or activity. A diver who may only dive a few times a year, or a shop that does nothing but provide dive related services. I should be responsible for my own behaviour, but I should also be able to rely on the gear I rent, or the service provider I am paying for a service. I should check my gear, but if I don't and the gear is defective because of something the shop did or should have done then they should be responsible for the consequenses of their lack of care.

To put it in simple terms if the shop rents me an SPG that they know reads high and I run OOA as a result we both share responsibility. I should have checked the 0 pressure and they should have either taken the SPG out of service or notified me of the problem. Remove their liability and there is no incentive to take the appropriate level of care.

Note we almost never see punitive damages in the ridiculous amounts that you see in other jusrisdictions and we do make unsuccessful litigants pay a portion of the successful litigants costs. Makes some think twice before bringing frivolous claims.

This is a thoughtful, well-reasoned post, and a welcome departure from the knee-jerk analysis that we often get around the subjects of lawsuits and personal responsibility. I am firmly in the camp that abhors government nannying and would like to see our right to assume a risk remain intact. We shouldn't have to absolve dive (or ski) operators from all responsibility to do so. You strike the right balance, in my opinion.

 

[eskimo50]

I am right with Bsee65! What in heaven's name is going on that each rental agency totally absolves themselves from ANY kind of blame for everything including negligence? I can't see an improperly torqued fitting or defective valve that may work fine on the surface, for example.
Do divers deserve trash as rental equipment? Every license I have holds me responsible for my actions...I have no waiver for mistakes or negligence.

 

[Ken Kurtis]

What in heaven's name is going on that each rental agency totally absolves themselves from ANY kind of blame for everything including negligence?

Caveat: I'm not a lawyer. (So lawyers, please feel free to weigh in if I get something wrong.)

First of all, you can waive simple negligence but not gross negligence. This is probably true no matter what the waiver says. So if I run you over with the boat, you haven't waived my responsibility/liability for my actions.

But this idea of trying to have the weaiver cover everything comes out of past industry experiences/lawsuits. In general terms, according to plaintiffs, no diver who has ever died under any & all circumstances has ever done anything wrong. It's always the fault of the boat/shop/equipment/mfg/DM/instructor/buddy or anyone NOT the diver. The mindset/attempt to blame everything on someone else produces the very type of waiver you find troubling. Sort of like a self-fulfilling prophecy.

I can't see an improperly torqued fitting or defective valve that may work fine on the surface, for example.

True, but you can see certain simple things that any certified diver should be able to spot. Things like leaking regs, loose hoses, missing clips, etc., can be discovered by a casual diver inspecting the gear before it leaves the rental facility and can be fixed on the spot.

When I still had my store open, we had a part of our rental agreement/waiver that said "I have inspected the gear I'm renting and have found it to be in working order and acceptable." We expect you to hook up the reg, breathe off of it, inflate the BC, examine straps, etc., and make sure everything's to your liking. Takes maybe five minutes.

You'd be amazed at the people who don't want to do this. I would simply say to them that if something wasn't working on the boat the next day, my first question was going to be, "Did you examine & test the gear as we asked?" If the answer was, "No," then my sympathy would stop right there because we had a chance to correct the problem and the renter robbed us of the opportunity to do so.

Also don't lose sight of the fact that rental gear gets abused due to the nature of the beast. That's WHY we want you to check it out before you leave the shop. That's WHY we ask you to tell us about the problems when you return it. Not everyone does either one of those.

Do divers deserve trash as rental equipment?

That's a blatantly unfair and offensive statement since you seem to be implying that the gear rented in this case was "trash". It was not. (Don't forget that I've examined the actual gear.) Scubapro and Oceanic gear. Definitely not "trash".

But even to go to your "trash" comment . . . That's WHY we want you to examine gear before you walk out the door with it. If you don't like it, we'll get you something else.

Every license I have holds me responsible for my actions...I have no waiver for mistakes or negligence.

Let's go to the actual "action" here you feel the shop should be held responsbile for. IMHO, the gauge not reading correctly at 0-psi is a red herring.

Is there anyone who's commented here (let alone anyone who's holding the gauge to be the trigger for this accident) who will argue that it's responsible for a diver to surface with no air at the end of his dive? I'm assuming not and yes, the question's a straw man.

But it points out a key factor in this incident: How much air should you reasonably be expected to surface with? Put differently, at what point in the dive (based on air) should you ascend/safety/surface?

Pick whatever number works for you. Is it 300-psi on the surface? 500-psi? At Reef Seekers, we suggest you use depth x 10 as the amount of air with which you should begin your ascent.

In this particular case, the OOA occured at roghly 80 feet. By my standard, that means the ascent should have been started at about 800psi. Plenty of time to come to 15 feet, do a 3-minute stop, and surface with adequate air.

The problem here is that in the narrative of the events leading up to the OOA, there's no indication that they knew the air was running low. The victim was simply out-of-air at 80 feet, roughly 25 minutes into the dive. That tells me that this isn't the case of a faulty gauge giving a bad reading they relied on, but it's an indication of a diver not paying attention to (and perhaps never even checking) the gauge. You just don't "suddenly" run out of air.

And even if you want to state that they should have surfaced with 300-psi (regardless of at what air pressure that decided then start ending the dive), when the guage in question read 300-psi, even though the reading wasn't accuarte, there still would have been 150-psi in the tank. The victim would not have run out of air.

So when you really start examining the events of the accident, it seems (to me) that the gauge has nothing to do with anything. Had they been on the surface when the gauge read 300psi, the victim would NOT have been out of air and we wouldn't be having this discussion.

And don't lose sight of the very important fact that the victim buddy-breathed (not octo - also on rented equipment) all the way to the surface with his buddy. He arrived at the surface conscious and then passed out. It sounds (I'm, not a doctor either) like a possible embolism. Again, how can you blame a diver holding his breath on ascent on the shop?

So if it's truly the actions (or inactions) of the victim, not the actions (or inactions) of the dive shop, that caused this acccident to happen, why should the shop be held liable? They're a convenient scapegoat, not a cause of injury (again, IMHO).

The gauge is but one small piece of the puzzle. You really need to stand back and look at the totality of events to get a true picture of what happened.

 

[Ayisha]

Well, since Ken was the coroner's forensic expert and he must have reported findings similar to what he posted here (plus whatever is not public info), and those complete findings will be used in court, I think we pretty much know the conclusion of this lawsuit will be in favour of the defendant. IMHO, I think this is a very valid conclusion in this case for all of the reasons mentioned throughout this thread.

 

[Darnold9999]

Ken - going to disagree with a bit of what you conclude. In this particular case you are the expert and I have no argument with the conclusion that the SPG is a red herring - in this case. Having an extra 150 psi at 80 feet when you are OOA is not going to make a huge difference. As you say a diver shouldn't be at 80 feet with 150psi. I personally wouldn't trust any guage below 100 lbs - anything below 100 psi could be 0 at any moment.

However.

IF it was found that the SPG was faulty AND this fault was the cause of the OOA incident (diver thought he had 600 psi in fact was 0 for example) - notwithstanding that a certified diver should have caught the problem - the shop that rented out this gear will and should share responsibility in my opinion. They have the ability to test the gear, they have the responsibility to provide equipment in good working order and the customer has the right to expect that the gear will be in good working order.

As a shop owner you can't pass off the responsibility for checking the safety of the gear you provide onto the customer. Making the customer check it to confirm that it was in good working order when it leaves the shop does not pass responsibility to the customer for ensuring its safety - it only provides you with evidence that the gear WAS safe when you had custody of it, you checked and the customer checked it, the fault must have happened after it left the shop. If it was unsafe when you had it in your custody and you rented it in that condition and you either knew or ought to have known it was unsafe then having the customer check it does not absolve you of the responsibility for providing safe gear, even if a certified diver should have caught it on a pre dive check.

Comes down to the balance thing again. Who is in the better position to determine if gear is safe to use. The expert dive shop that owns the gear and has the expertise to determine if it is faulty or the consumer diver who may or may not know how to determine if there is a problem. The fact that you know divers don't check even though you ask them to makes your position as a dive shop owner even worse. You know that they typically don't check and are relying on you and your expertise to provide safe gear. Would not want to be on the shop owners side of that argement.

 

[Ken Kurtis]

IF it was found that the SPG was faulty AND this fault was the cause of the OOA incident (diver thought he had 600 psi in fact was 0 for example) - notwithstanding that a certified diver should have caught the problem - the shop that rented out this gear will and should share responsibility in my opinion.

I would generally agree with you on that, especially if that gauge read 600 when it was 0. It's reasonable for a diver to think the gauge shouldn't be off by 600-psi, roughly 20% of a 3000-psi tank. But that's NOT the case here and I'm discussing the specifics of this case, not a hypothetical.

I'm not saying shops are NEVER liable, I'm simply saying that the gauge issue here didn't cause the problem and whether or not the shop had a responsnbility for the gauge to be dead-on accurate is a moot point as it's really not the cause of this accident.

The fact that you know divers don't check even though you ask them to makes your position as a dive shop owner even worse. You know that they typically don't check and are relying on you and your expertise to provide safe gear. Would not want to be on the shop owners side of that argement.

I'm actually quite comfortable defending that position.

If I've asked you, as a condition of rental, to do something reasonable, and you refuse to do so, it doesn't suddenly make me MORE liable IMHO.

I seem to recall a case a few years ago where someone ran out of air and the plaintiff's argument was that because the DM had not specifically said in the briefing that you shouldn't run out of air, it was the DM's fault because he knew of a danger and didn't warn the diver about it. Needless to say, that viewpoint didn't prevail.

I think there are things that it's reasonable for a diver to expect a shop/boat/instructor/DM/buddy to do and vice-versa. The problems arise when there's an accident and suddenly the idea of even a whiff of responsibility on the part of the diver seems to go out the window.