- Messages
- 22,171
- Reaction score
- 2,798
- # of dives
- 5000 - ∞
As we know, Ken, common sense is not so common and it is not reasonable to expect some to be reasonable.
Merged: Liability Releases - shop sued diver's death, Catalina Island 2005
- Thread starter ItsBruce
- Start date
Please register or login
Welcome to ScubaBoard, the world's largest scuba diving community. Registration is not required to read the forums, but we encourage you to join. Joining has its benefits and enables you to participate in the discussions.
Benefits of registering include
- Ability to post and comment on topics and discussions.
- A Free photo gallery to share your dive photos with the world.
- You can make this box go away
Ayisha
Contributor
I understand the philosophy behind wanting the shop to have some responsibility and it being too easy to waive away all our rights. Here in Canada, negligence cannot be waived, no matter what a dive shop tries to put into it's waivers. I fully agree that our right to sue for negligence should not be able to be waived away by us or for our children and that the U.S. should consider altering that too-easy ability. I think Ken's point, however, is that negligence is not really a factor here.
It seems to me that none of the arguments made by the plaintiff resulted in the cause of death. For example:
Negligence on the part of the shop: No, because the tank was empty at about 80 feet although it showed about 150 psi. Anyone who was certified is taught to arrive at the SURFACE with at least 500 psi (most of us reserve a lot more). If he was at 80 feet with even the 150 psi that he thought he had, he would not have made it to the surface with a prescribed rate of ascent even then or be able to do an adequate safety stop with that low amount of gas that he thought he had.
Many of us are taught that the last few hundred psi of an analog gauge is not accurate and we may not have as much gas as we think we have.
Basic certification teaches us to do a pre-dive check of all of our gear. If a gauge that is not connected or is connected but the valve is off and the regs are purged and the gauge is reading 150 psi, we know the gauge is off by 150 psi. This should have been caught when picking up the gear or at the latest when setting up at the dive site. One can choose to let the shop know, exchange the reg or choose to dive with it knowing that it is reading 150 psi high. Our training teaches us to check all of our gear and not dive with gear that we find to be faulty.
Basic certification also teaches us to check our gauges often and understand basic gas management. If he was checking his gauges often, he would have known his PSI and signalled Low on Air a long time before running out, but that apparently did not happen. Apparently he did not know his gas situation and did not begin ascending until he actually ran out of air, and this is contrary to our teaching.
Confusing wording on the "Title" of the waiver, indicating that it may apply to multiple days or boat dives: No, because negligence is not a factor here, so it is moot. The deceased signed the rental agreement and no one necessarily knows if the deceased realized that the waiver on the same page was intended to apply to him - not even his son. As divers, it is reasonable to believe that it is customary to sign a waiver before renting gear (or diving from a boat, partaking in a class, etc.) The intent of the rental agreement/waiver is common knowledge to any diver, especially an experienced one.
Too much weight: No, because we all learn in basic certification to do a pre-dive weighting check. If he was grossly overweighted, he would not have been able to make a controlled ascent all the way to the surface, and it was reported that he did make a controlled ascent to the surface.
It is routine for shops to give divers more weight than they think they need so the diver can make that decision as to how much weight they need, as they are trained to do in basic certification. It is also routine to give extra weights so that the diver can configure and balance the weights the way that is comfortable for them. One diver may want more 2 pounders while another may want more 8 pounders, and shops tend to give a variety unless they are told specifically what a diver wants. Our training requires us to do a pre-dive weighting check and use the amount that we determine allows us to achieve neutral buoyancy. It is customary for people, especially on a shore dive, to leave weights nearby and add or subtract as necessary before descending to depth. It is also recommended to have a bubble watcher to assist and watch.
We are also taught in basic certification that we can refuse or end a dive at any time for any reason and without disclosing a reason. We are taught that being uncomfortable while diving is not acceptable and a very good reason to thumb a dive. Diving while being grossly overweighted is extremely uncomfortable and a lot of work and the dive should be thumbed if the weighting could not be corrected. If the deceased was overweighted but not grossly so, the diver could choose to dive with the encumberance, as he apparently did or follow his training and either correct the weighting or thumb the dive.
Running out of air causing death: No, because the deceased and his son were able to make a controlled ascent using the son's air. The deceased did not make an uncontrolled or buoyant ascent or fast ascent, therefore the lack of air in his own tank did not cause his death or possible embolism.
Basic training teaches us that using your buddy's alternate air source is the preferred method to deal with a low on air or out of air emergency. The deceased chose instead to buddy breathe with his son, which is not a preferred method and is no longer taught by some agencies due to it's inherent danger. The son had an octo and it was not used for some unexplicable reason. If the octo had been used, it would have made for a much more comfortable ascent and would have avoided the coordination, cooperation and the constant swapping of regs required in buddy breathing while managing the ascent effectively.
It seems to me that while the argument against waiving negligence and other equipment issues are good ones, they don't seem to apply to this case. IMHO, this tragedy could have been avoided if basic training was followed from the start of the dive plan, and could have been mitigated along the way by the choices that were made by the deceased and his son at each juncture.
It seems to me that none of the arguments made by the plaintiff resulted in the cause of death. For example:
Negligence on the part of the shop: No, because the tank was empty at about 80 feet although it showed about 150 psi. Anyone who was certified is taught to arrive at the SURFACE with at least 500 psi (most of us reserve a lot more). If he was at 80 feet with even the 150 psi that he thought he had, he would not have made it to the surface with a prescribed rate of ascent even then or be able to do an adequate safety stop with that low amount of gas that he thought he had.
Many of us are taught that the last few hundred psi of an analog gauge is not accurate and we may not have as much gas as we think we have.
Basic certification teaches us to do a pre-dive check of all of our gear. If a gauge that is not connected or is connected but the valve is off and the regs are purged and the gauge is reading 150 psi, we know the gauge is off by 150 psi. This should have been caught when picking up the gear or at the latest when setting up at the dive site. One can choose to let the shop know, exchange the reg or choose to dive with it knowing that it is reading 150 psi high. Our training teaches us to check all of our gear and not dive with gear that we find to be faulty.
Basic certification also teaches us to check our gauges often and understand basic gas management. If he was checking his gauges often, he would have known his PSI and signalled Low on Air a long time before running out, but that apparently did not happen. Apparently he did not know his gas situation and did not begin ascending until he actually ran out of air, and this is contrary to our teaching.
Confusing wording on the "Title" of the waiver, indicating that it may apply to multiple days or boat dives: No, because negligence is not a factor here, so it is moot. The deceased signed the rental agreement and no one necessarily knows if the deceased realized that the waiver on the same page was intended to apply to him - not even his son. As divers, it is reasonable to believe that it is customary to sign a waiver before renting gear (or diving from a boat, partaking in a class, etc.) The intent of the rental agreement/waiver is common knowledge to any diver, especially an experienced one.
Too much weight: No, because we all learn in basic certification to do a pre-dive weighting check. If he was grossly overweighted, he would not have been able to make a controlled ascent all the way to the surface, and it was reported that he did make a controlled ascent to the surface.
It is routine for shops to give divers more weight than they think they need so the diver can make that decision as to how much weight they need, as they are trained to do in basic certification. It is also routine to give extra weights so that the diver can configure and balance the weights the way that is comfortable for them. One diver may want more 2 pounders while another may want more 8 pounders, and shops tend to give a variety unless they are told specifically what a diver wants. Our training requires us to do a pre-dive weighting check and use the amount that we determine allows us to achieve neutral buoyancy. It is customary for people, especially on a shore dive, to leave weights nearby and add or subtract as necessary before descending to depth. It is also recommended to have a bubble watcher to assist and watch.
We are also taught in basic certification that we can refuse or end a dive at any time for any reason and without disclosing a reason. We are taught that being uncomfortable while diving is not acceptable and a very good reason to thumb a dive. Diving while being grossly overweighted is extremely uncomfortable and a lot of work and the dive should be thumbed if the weighting could not be corrected. If the deceased was overweighted but not grossly so, the diver could choose to dive with the encumberance, as he apparently did or follow his training and either correct the weighting or thumb the dive.
Running out of air causing death: No, because the deceased and his son were able to make a controlled ascent using the son's air. The deceased did not make an uncontrolled or buoyant ascent or fast ascent, therefore the lack of air in his own tank did not cause his death or possible embolism.
Basic training teaches us that using your buddy's alternate air source is the preferred method to deal with a low on air or out of air emergency. The deceased chose instead to buddy breathe with his son, which is not a preferred method and is no longer taught by some agencies due to it's inherent danger. The son had an octo and it was not used for some unexplicable reason. If the octo had been used, it would have made for a much more comfortable ascent and would have avoided the coordination, cooperation and the constant swapping of regs required in buddy breathing while managing the ascent effectively.
It seems to me that while the argument against waiving negligence and other equipment issues are good ones, they don't seem to apply to this case. IMHO, this tragedy could have been avoided if basic training was followed from the start of the dive plan, and could have been mitigated along the way by the choices that were made by the deceased and his son at each juncture.
Blastman4444
Contributor
I'm new to scuba diving, but I run a business where anything can happen. That is why when you start a business you have good liability insurance mine is 1.5 million cost me $1200 a year, and when I got my insurance I had it reviewed by my attorney. This is much better then worrying about a liability release because in my business a 3rd party could get injured. I run a mobile sandblasting business but we don't use sand. People make mistakes like not testing a gauges in this case. In the end if you do as much as you can to reduce the possibility of injury it helps you in court. Liability wavers are easy to cut though just like LLC's and Corps are easy to get though and go after the owner personally.
Also I just got back from Grand cayman islands where I hired a private DM/instructor to take us out for our first dives. We didn't start our ascent until we reached about 500 psi. I spoke to others on the boat that were 200psi when they surfaced. We were about 65' when we started up seemed about the normal procedure.
Also I just got back from Grand cayman islands where I hired a private DM/instructor to take us out for our first dives. We didn't start our ascent until we reached about 500 psi. I spoke to others on the boat that were 200psi when they surfaced. We were about 65' when we started up seemed about the normal procedure.
Greatly appreciate the facts and the wisdom in Ken Kurtis' posts on this incident. Thank goodness HE is the expert who evaluated the equipment! I think some recent posters may have missed Ken's statement that the gauge was off by about 150 psi. This IMHO is a very telling point, as I have posted here previously. An "experienced diver" should never be at such a depth with an SPG reading as low as it must have in this case. Keep in mind that he and his son buddy breathed off the son's tank so he probably was not using air in his tank on the ascent. The tank had about 50 psi when inspected which suggests it may have had that at the surface assuming the diver did not breathe on his tank after the ascent.
If there was negligence in this case it appears to have been on the part of the diver.
As for waivers, I think it is important for us to assume the responsibility for our own diving. Following certification, even an OW diver should be properly trained in the basic safety issues. Of course a waiver should never cover gross negligence on the part of a dive operator, but this certainly does not appear to be the case in this incident.
In the days when I used to do multiple deep (160-200 ft) dives on air, and even today as a long-time (nearly 50 year) solo diver, I have always instructed my family and friends that I am to be held responsible in the event of an incident, not the dive boat or shop, unless there was a serious case of gross negligence that contributed to an accident. I never expected a boat-based DM to come to my rescue at such depths.
If there was negligence in this case it appears to have been on the part of the diver.
As for waivers, I think it is important for us to assume the responsibility for our own diving. Following certification, even an OW diver should be properly trained in the basic safety issues. Of course a waiver should never cover gross negligence on the part of a dive operator, but this certainly does not appear to be the case in this incident.
In the days when I used to do multiple deep (160-200 ft) dives on air, and even today as a long-time (nearly 50 year) solo diver, I have always instructed my family and friends that I am to be held responsible in the event of an incident, not the dive boat or shop, unless there was a serious case of gross negligence that contributed to an accident. I never expected a boat-based DM to come to my rescue at such depths.
fisheater
Contributor
*sigh* it is easy to condemn the family, the diver, the lawyer, the dive operator depending on your personal biases. We don't know if the family is acting out of the "normal" Grief/denial/anger/bargaining/acceptance stages of the grieving process that Elizabeth Kubla Ross identified so many years ago as "The five Stages of Grief". We don't know if the lawyer heard about it, solicited the case as an offended family friend or ambulance chaser type low life. We don't know for sure what went through the diver's head and so on 
I choose to give them all the benefit of the doubt and not attach motives to people I don't know.
What we do know is that we are getting more dispassionate facts than we normally are able to obtain. What can we take away from this incident?
1) Waivers
The waiver left the door open for the suit.. right or wrong.... waivers are a reality in all aspects of life. They need to be well written and are worth having a competent lawyer write it. If your business is going to rely on a waiver for protection from frivolous suits... make sure it is a good one. It seems to me pretty well every jurisdiction will not allow a grossly negligent entity hide behind a waiver.
2) Diver Responsibility
I choose the risks I take and accept the consequences of my actions my family knows this. If someone is grossly negligent and it results in my death I hope my family will launch a suit for two reasons.... 1) to prevent others from suffering the same fate 2) to compensate my loved ones for the loss of the contribution I make to their lives.
3) Equipment
No equipment is going to be dead accurate. If you rely on it being so and cut too close to the edges you are going to be the subject of one of these threads. It seems to me that the equipment in this case was within reasonable enough parameters that a diver following a gas plan with appropriate safety margins should have been been on the surface with air to spare.
4) Diver health
Interesting that Ken Kurbis who has "inside knowledge" does not substantiate the "heart attack" that has been mentioned. I am inclined to listen to his interpretation of the events and accept his proposal for the cause of death.
I have adjusted my assumptions as a result of this thread. Thanks to everyone who has contributed to my education.
I choose to give them all the benefit of the doubt and not attach motives to people I don't know.What we do know is that we are getting more dispassionate facts than we normally are able to obtain. What can we take away from this incident?
1) Waivers
The waiver left the door open for the suit.. right or wrong.... waivers are a reality in all aspects of life. They need to be well written and are worth having a competent lawyer write it. If your business is going to rely on a waiver for protection from frivolous suits... make sure it is a good one. It seems to me pretty well every jurisdiction will not allow a grossly negligent entity hide behind a waiver.
2) Diver Responsibility
I choose the risks I take and accept the consequences of my actions my family knows this. If someone is grossly negligent and it results in my death I hope my family will launch a suit for two reasons.... 1) to prevent others from suffering the same fate 2) to compensate my loved ones for the loss of the contribution I make to their lives.
3) Equipment
No equipment is going to be dead accurate. If you rely on it being so and cut too close to the edges you are going to be the subject of one of these threads. It seems to me that the equipment in this case was within reasonable enough parameters that a diver following a gas plan with appropriate safety margins should have been been on the surface with air to spare.
4) Diver health
Interesting that Ken Kurbis who has "inside knowledge" does not substantiate the "heart attack" that has been mentioned. I am inclined to listen to his interpretation of the events and accept his proposal for the cause of death.
I have adjusted my assumptions as a result of this thread. Thanks to everyone who has contributed to my education.
Would agree with all of the above except that in this case the waiver was written by the chief legal person at PADI. There will always be some lawyer or judge who can interpret the wording in a way different enough to open up wiggle room.
OP
ItsBruce
Contributor
I'm glad I invoked Ken's name because it brought us help we might not otherwise have gotten.
With the information Ken provided, I especially don't like the plaintiffs' case. However, if I were the shop, I would not turn down a reasonable settlement offer. That is because it is not beyond reason to think a jury would not find the shop at least 10 or 20% responsible. The argument would be as follows: The gauge was a substantial factor in the diver running out of air. True, he should have been on his way to the surface even with 200 or 300 pounds of air, but the gauge was a factor. Although the diver was trained on what to do in an OOA situation, many people forget the details of their training when faced with a sudden emergency, like OOA. As a direct result, the diver started buddy breathing rather than using an octo. And, for the same reason, he held his breath when he ascended.
Given the damages, i.e. death and the son witnessing the whole thing, even if the shop is held only 10 or 20% responsible, that could be a lot of money.
With the information Ken provided, I especially don't like the plaintiffs' case. However, if I were the shop, I would not turn down a reasonable settlement offer. That is because it is not beyond reason to think a jury would not find the shop at least 10 or 20% responsible. The argument would be as follows: The gauge was a substantial factor in the diver running out of air. True, he should have been on his way to the surface even with 200 or 300 pounds of air, but the gauge was a factor. Although the diver was trained on what to do in an OOA situation, many people forget the details of their training when faced with a sudden emergency, like OOA. As a direct result, the diver started buddy breathing rather than using an octo. And, for the same reason, he held his breath when he ascended.
Given the damages, i.e. death and the son witnessing the whole thing, even if the shop is held only 10 or 20% responsible, that could be a lot of money.
Similar threads
