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

[Eric Sedletzky]

Word of caution ZKY. Your backplate is very comfortable, so much so that it could cause people to fall asleep while under water. This could potentially cause a "Choking Hazard". You may want to consider stamping this warning on your Backplates in the future just to cover your...well... :mooner:

Gasp!
Yikes, just the thought of a lawyer and a lawsuit gives me the willy's.

But then I also get a smirk thinking that someone likes it that much.

Thank you

 

[ItsBruce]

A couple of thoughts:

1. Phil's post (#15) is very good and everyone should read it several times.

2. While there may be an emotional appeal to saying that a shop should not require a liability release, the reality is that in our society, dive shops must have them if they are to exist. Having a release means the shop can just rent a certified diver equipment without having to independently verify the diver has adequate skills and knowledge to do the planned dive. Having a release also means that the shop does not need to factor the cost of defending an occasional lawsuit into the cost of renting out gear. Remember, even if the shop was not negligent in any way, it can still be sued. While it may ultimately win, there will be a huge cost to do so. The whole thing can be cut short with a properly drafted release.

3. No one who says that people should take responsibility for their own safety or well being should complain about liability waivers or releases.

4. There is a significant difference between "ordinary" negligence, gross negligence, a conscious disregard of the safety of another and a willful act. The law generally does not have a problem with a waiver for "ordinary" negligence. However, it often has a problem with and won't enforce a waiver for gross negligence or worse.

5. After reading the Catalina Scuba Luv case, I'm pretty comfortable in my belief that had the particular provision not said it applied to boat dives and to multiple days rentals, the Court of Appeal would have affirmed the judgment in favor of Catalina Scuba Luv. The particular provision said that the shop was not responsible for injuries that occurred on a boat dive. It didn't say the shop was notresponsible for injuries on a beach dive. Since, the particular dive was not a boat dive, there was no basis for saying the waiver put an end to the case.

 

[Tricia]

In reading the appellate court opinion, I saw that the dive shop had originally filed a cross-complaint against Oceanic (presumably, the maker of the SPG). But when the shop won the summary judgment motion, they dismissed the cross-complaint. Hope they can refile.

Tricia

 

[justintimetobelate]

A couple of thoughts:

...

5. After reading the Catalina Scuba Luv case, I'm pretty comfortable in my belief that had the particular provision not said it applied to boat dives and to multiple days rentals, the Court of Appeal would have affirmed the judgment in favor of Catalina Scuba Luv. The particular provision said that the shop was not responsible for injuries that occurred on a boat dive. It didn't say the shop was notresponsible for injuries on a beach dive. Since, the particular dive was not a boat dive, there was no basis for saying the waiver put an end to the case.

Exactly right. They did not rule in favor or plaintiff, just that the waiver was not grounds for a summery judgment.

 

[Crowley]

The diver ran out of air.

Equipment failures resulting in a OOA incident are very rare, although they do happen.

Sometimes, in busy dive centres, empty tanks get left on board.

Every agency teaches some form of buddy check to ensure that tanks are full. I have seen gauges reading as much as 40 bar (approximately 600psi) out of whack, which was a one-off in all the thousands of divers I have guided, but even 40 bar defective would show a half empty tank on the gauge, which would be unfit for regular diving.

OOA and air depletion excercises are taught by all agencies as part of their fundamental basic training. The waiver may indeed be poorly phrased, however how could anybody suggest that equipment that is fit for multiple dives or boat diving is somehow inappropriate for a single dive?

As Thalassamania pointed out before - back in the day we dived with equipment we did not have to sign a waiver for, on the understanding that we were trained to check it appropriately. That included making sure the SPG read zero when not under pressure, and all the standard checks that are still taught today - and my "day" was a mere 10 years ago.

Any diving death is tragic, of course, but it seems this one could have been prevented by the diver adhering to basic training standards. I wasn't there, I am not a lawyer, but suing over the semantics of a piece of paper to somehow ignore the implication that a diver was, in fact, responsible for their own death is symptomatic of the fact that in this day and age, nobody is prepared to accept their own repsonsibility for anything.

Ultimate repsonsibility for the dive is incumbent on the diver, not the paper they signed without ever reading it.

Sorry of that offends, but people need to start accepting responsibilty for themselves.

Safe diving

C.

 

[MaxBottomtime]

In practice, the number of renters who are in position to thoroughly examine and verify all aspects of rental gear is probably pretty small, and the shop ought to be responsible for verifying the quality and quantity of gas in a tank they rent.

In this case, the family is claiming there was a faulty spg and short fill. Anyone who has taken an open water course would certainly check the gauge and tank pressure, if not at the time of rental, certainly at the time of set-up. If the spg was so far off as to allow the father to run out of air at sixty feet while his son still had enough air for both of them to safely make an ascent they should have seen this before entering the water.
When I worked at a dive shop I would assemble the rental gear and have the renter confirm that everything checked out OK. It wasn't so much for their safety, but for the few who would ask for a refund later when their reg free flowed after they dragged it in the wet sand. I had one customer return a reg that was completely caked with sand.

 

[Thalassamania]

There are clear standards for zero error in an SPG. Unfortunately for the shop those standards specify absolutely no zero error for an SPG.

But a case still must be made for that being the cause, or at least a significant contributor to the incident. I think that as good (or bad) a case could be made against an agency for inadequate emergency ascent training as can be made against the shop for a bad SPG.

 

[Thalassamania]

They'd have to prove that Oceanic shipped them a defective gauge, and then come up with an explanation as to why they put that defective guage into service ... too messy for the shop.

 

[tc]

There are clear standards for zero error in an SPG. Unfortunately for the shop those standards specify absolutely no zero error for an SPG.

But a case still must be made for that being the cause, or at least a significant contributor to the incident. I think that as good (or bad) a case could be made against an agency for inadequate emergency ascent training as can be made against the shop for a bad SPG.

From the first post in the thread-

He made a controlled ascent by breathing with his son, but went into cardiac arrest on the beach.

Why the assumption of inadequate training?

I don't see any other information in the thread that indicates there was anything done improperly during the emergency ascent. Is there some information you're aware of that I missed?

Having a cardiac arrest after the event is hardly indicative that improper emergency procedures were used or that training was inadequate.

 

[justintimetobelate]

Personally I don't see how the equipment caused the heart attack. He was sixty feet down, made it to the surface just fine. Then obviously he had to make it back to the beach.

So after the dive was over and he had gotten back to the beach is when he had his heart attack. This is correct, no?

I'm confused as to what exactly they are claiming was the culprit. Over exertion from the ascent and swim back to beach? If this is the case then perhaps he shouldn't have been diving.