Non-certified diver fatality - Arkansas

[Ken Kurtis]

We never ask to see a certification card when people to come in to buy gear. I wouldn't expect to be hassled if I went and bought a parachute. I'm not a skydiver either...

I hate to have to defend that statement in court . . .

Personally, I've never considered it a "hassle" to either show my own cert card (although I'm rarely if ever asked for it) or have people show me theirs. It's an industry standard and if you don't verify that they're certified, expect legal problems to arise if something goes amiss with whatever your interaction with them was.

For the record, we (Reef Seekers) ALWAYS have asked for cert cards when buying or renting gear, when getting airfills, and when diving on our boats. Now once we've seen it, we don't need to keep seeing it because we already have confirmed you're certified. But if I don't have personal knowledge that I've seen your card (or one of my staff vouches for you), then I'll ask to see it. In fact, I did that this weekend with one diver who I've known for probably 20 years but have never been diving with. He's the co-owner of a major mfg company and you'd all likely know his name (and many of you probably dive his gear). But I asked to see his card, which he had with him and showed to me, no big deal.

I'd certainly rather ask someone for their card and have them feel insulted than not ask them and expose myself to needless liability.

- Ken

 

[toddthecat]

I hate to have to defend that statement in court . . .

Personally, I've never considered it a "hassle" to either show my own cert card (although I'm rarely if ever asked for it) or have people show me theirs. It's an industry standard and if you don't verify that they're certified, expect legal problems to arise if something goes amiss with whatever your interaction with them was.

For the record, we (Reef Seekers) ALWAYS have asked for cert cards when buying or renting gear, when getting airfills, and when diving on our boats. Now once we've seen it, we don't need to keep seeing it because we already have confirmed you're certified. But if I don't have personal knowledge that I've seen your card (or one of my staff vouches for you), then I'll ask to see it. In fact, I did that this weekend with one diver who I've known for probably 20 years but have never been diving with. He's the co-owner of a major mfg company and you'd all likely know his name (and many of you probably dive his gear). But I asked to see his card, which he had with him and showed to me, no big deal.

I'd certainly rather ask someone for their card and have them feel insulted than not ask them and expose myself to needless liability.

- Ken

While frivolous lawsuits run rampant in this country I personally am not too worried about someone buying gear and then having a problem with it. Can I get sued? Yep. Anyone could get sued for anything though. Doesn't mean the plaintiff will win. There have been several instances where gun manufacturers are sued because one of their guns was used in a mass murder. Bushmaster can't be held accountable for making the gun that may have been used in a school shooting. Similarly, I didn't sue Chicago Cutlery because they made the knife I cut myself with when making dinner the other night.

When someone buys gear the liability becomes theirs when they decide to use it in a harmful way. I guess we shouldn't sell tanks to the people who play paintball anymore? I'd like your opinion on that...

 

[ScubaSteve]

I hate to have to defend that statement in court . . .

Personally, I've never considered it a "hassle" to either show my own cert card (although I'm rarely if ever asked for it) or have people show me theirs. It's an industry standard and if you don't verify that they're certified, expect legal problems to arise if something goes amiss with whatever your interaction with them was.

For the record, we (Reef Seekers) ALWAYS have asked for cert cards when buying or renting gear, when getting airfills, and when diving on our boats. Now once we've seen it, we don't need to keep seeing it because we already have confirmed you're certified. But if I don't have personal knowledge that I've seen your card (or one of my staff vouches for you), then I'll ask to see it. In fact, I did that this weekend with one diver who I've known for probably 20 years but have never been diving with. He's the co-owner of a major mfg company and you'd all likely know his name (and many of you probably dive his gear). But I asked to see his card, which he had with him and showed to me, no big deal.

I'd certainly rather ask someone for their card and have them feel insulted than not ask them and expose myself to needless liability.

- Ken

What if the person is buying a tank for "a friend"? Or a family member? DO they have to get their certification card and show it? Just curious as your statements seem to be absolute.

 

[mrokern]

I think Ken nailed it.

As a very newly certified diver myself, I can entirely see how those certified under the older curriculums distrust many of us newer folks. I feel that I chose a very competent instructor who explained the "why", not just the "how", but I'm still busting my butt researching and reading everything I can...and talking to every experienced diver I come across.

When I originally signed up for my OW class, I had a relative (by marriage...) who said, "I'll do it with you!" Then he found out the costs and backed out.

Come to find out that he's been diving this summer with a certified friend. Eeep.

I look at diving as being very similar to the shooting sports (another hobby of mine). With proper training and by following the rules, both activities are very safe...but without training, if things go sideways, you can go from living to dead very quickly.

Training is how you learn what to do when things go wrong.

Just my thoughts, worth what you paid for them.

-Mark

So, not meaning to castigate Vickers, but I think it's entirely reasonable to think that someone thought it would be OK for the uncertified diver to go in, either rented or loaned the gear to the victim, and we now all know the - not unexpected - outcome. And for all we know, they/he had done this before without incident so what are the odds for a bad outcome this time?

They see it as we-did-it-before-and-nothing-bad-happened. We see it as Russian Roulette and this time, there was a bullet in the chamber when the trigger was pulled.

 

[Ken Kurtis]

What if the person is buying a tank for "a friend"? Or a family member? DO they have to get their certification card and show it? Just curious as your statements seem to be absolute.

Yes on all counts. Who's the friend? Are they certified? Who's the family member? Are they certified? We need to verify that. It's much cheaper to lose a sale than lose in court. (And while you may have insurance that will cover damages and attorney fees, you'll still spend/waste a lot of your time on th ecase and that's NOT reimbursed.)

We certainly can't prevent you from lying to us and buying it for yourself and then giving it to a non-certified friend. But if I've done my due diligence and at least confirmed that whoever you tell me the end-user is is certified, then I'm standing on good ground.

In rescue scenarios, we teach "Expect the worst and hope for the best." So what are the worst-case scenarios here? (1) Sell the gear to someone who IS certified, you verify that, they die, you get sued. (2) Sell the gear to someone who IS certified, you verify that, they give the gear to someone who's NOT certified, they die, you get sued. (3) Sell the gear to someone NOT certified, don't bother to ask for any proof of certification, they die, you get sued.

In which scenario would you like NOT to be the defendant? ("All of them" is not an acceptable answer. )

In all seriousness, I have never understood the reluctance of shops/boats/etc to ask to see cards. What's the downside????? And generally the people who get offended or walk away are either people who aren't qualified to dive in the first, or they're the type of people who will be suing you when something goes wrong.

Again, what's the downside of asking to see someone's card and verifying that they are certified?

- Ken

 

[Wookie]

I do wonder if any charges will be brought up against the certified diver. Even if he didn't -kill- the guy: it seems like the 'training' he received through certification would make him somewhat responsible for the other person. What the hell was he thinking taking someone not certified to 70+ feet? I mean, I think taking someone down to 30 feet is also a bad idea, but I can kind of see how some people would justify that as 'safe'; but 70 feet? I'm so sad for this man and his family.

Charges? Probably not. A civil suit? Maybe or even likely. There is no law that requires a c-card to buy or rent gear, just the requirements our insurance companies put on us. My insurance specifically states that I can only carry certified divers or divers in training (if they want to dive) and anyone who goes for a ride on the boat must sign a release. That includes crew, BTW. The insurance company will back me if I am negligent, but I have to meet them partway, they have to have something to defend against.

 

[toddthecat]

Ken you never answered my question about selling a tank to someone using it for paintball fills! Come on, don't dodge the question! I feel like being enlightened...

 

[redacted]

Personally, I've never considered it a "hassle" to either show my own cert card (although I'm rarely if ever asked for it) or have people show me theirs. It's an industry standard and if you don't verify that they're certified, expect legal problems to arise if something goes amiss with whatever your interaction with them was.

Do you have anything to offer that would verify that "industry standard" claim?

My impression is the industry made an unsuccessful attempt to limit gear sales to C-card holder to combat the encroaching mail order business in the '90s It seemed to fail because pretty sizable sales were walking out the door (and into some other retailer) when c-cards could not be produced.

How about court cases based on sales to uncertified customers?

 

[Ken Kurtis]

Ken you never answered my question about selling a tank to someone using it for paintball fills! Come on, don't dodge the question! I feel like being enlightened...

I thought it was a rhetorical question but since you requested some light . . .

I will not sell a tank that could be used for scuba diving to someone who says they're only going to use it for paintball unless they're a certified diver. I will not fill a paintball tank with compressed air unless the person bringing it in can show a certification card.

As many people here may know, I do expert witness work (defense) in scuba litigation. I recently testified in a trial that involved a fatality and allegations of product liability. I personally believe that any alleged defects did not cause the diver to die. The jury felt otherwise and awarded the family $5 million dollars. I'm happy to listen to the argument that it's worth risking that kind of a loss, which will affect us all in higher insurance premiums, for a $4 tank fill or a $250 tank sale to some uncertified paintballer who then uses it for scuba.

But Todd, you haven't answered MY question: What's the downside of requiring your customers to be certified and confirming proof of certification before you'll sell or rent them anything? Don't dodge the question! I feel like being enlightened . . .

- Ken

 

[redacted]

As many people here may know, I do expert witness work (defense) in scuba litigation. I recently testified in a trial that involved a fatality and allegations of product liability. I personally believe that any alleged defects did not cause the diver to die. The jury felt otherwise and awarded the family $5 million dollars. I'm happy to listen to the argument that it's worth risking that kind of a loss, which will affect us all in higher insurance premiums, for a $4 tank fill or a $250 tank sale to some uncertified paintballer who then uses it for scuba.

How does the possession of a c-card relate to a court case that seems to have been decided based on a defective product?