Once a DM always liable

[DiveGolfSki]

Interesting thread.

I'm a personal injury attorney/trial lawyer in Connecticut.

My answers to some of the issues raised are:....

6. As I believe a couple people asked, I'm also curious about how many legal claims are brought every year by diver-victims (or their families) and what the outcomes of these cases are. I have not seen anything on this in my readings.

Michael

Thanks that does shed some light. Proof of liability vs being sued are two different things. As to your point #6, can you pull information on this via Lexis/Nexis or Findlaw?

 

[H2Andy]

As to your point #6, can you pull information on this via Lexis/Nexis or Findlaw?

you would be able to pull up negligence cases involving scuba diving
that were appealed.

and that's the problem. only appealed cases make it into the various
reporters (published sets of cases) which you can search through the
various engines (westlaw, lexis, etc.)

so... no... there really is no way to know how many cases are filed involving
negligence and scuba diving

 

[mark99]

One point that hasn't really been mentioned yet are good samaritan laws....most states have them...and they are designed to protect those who are trained, attempt to help, but are unable to do so. If you are a DM, and someone is sinking to the bottom, you attempt rescue, but say you get to your nitrox MOD and can no longer pursue, you have made a "reasonable effort" and should be protected in this way.

In California I think you'd be covered by the good samaritan law: (Health and Safety Code) 1799.102. No person who in good faith, and not for compensation,
renders emergency care at the scene of an emergency shall be liable
for any civil damages resulting from any act or omission.

Now that would not cover a situation where you were responsible for creating the emergency by a negligent act i.e. your buddy had the problem and you did not respond in the proper way to prevent the emergency.

 

[H2Andy]

we have a good samaritan law in effect in FLorida as well, as do many states

it's supposed to encourage people helping out without fear of litigation, even
doctors and medical personnel who are not on duty at a medical facility
at the time the emergency happens (i.e. still holds medical personnel liable
for on-duty medical malpractice type things except under certain
circumstances)

Florida Statute 768.13

 

[Aquanaut4ata]

we have a good samaritan law in effect in FLorida as well, as do many states

it's supposed to encourage people helping out without fear of litigation, even
doctors and medical personnel who are not on duty at a medical facility
at the time the emergency happens (i.e. still holds medical personnel liable
for on-duty medical malpractice type things except under certain
circumstances)

Florida Statute 768.13

Yes, that's exactly what I am saying, and sheds a little light on the jist of this thread. There's no question that a DM/Instructor carries a level of liability when acting in their professional capacity, but the notion of being "guilty by association" would have a pretty hard time standing up in court if you were just on a dive somewhere, especially if you paid for a charter that provided a DM. Yes, you would be looked at to see if you held a duty of care, but it would be pretty difficult to establish that there actually was one.

Also mentioned in this thread (and I agree with it)was that if you are a DM/instructor, and don't respond in some way to a situation because you are afraid of litigation, you should be flogged. In my opinion, when you make that step to a "Dive Professional" you are taking a responsibility upon yourself, and that's a decision you should make before you do it. Should you carry insurance? Yes. it's the price you pay.
If someone is interested in taking their dive training to a higher level, and doesn't actually intend to perform the duties of a DM/instructor, or want to deal with the associated ramifications, I would recommend other avenues, such as tech courses, or DIR. The training is excellent, you can most definitely better yourself as a diver, but you don't have the legalities associated with the professional levels.

 

[Christi]

Yes, that's exactly what I am saying, and sheds a little light on the jist of this thread. There's no question that a DM/Instructor carries a level of liability when acting in their professional capacity, but the notion of being "guilty by association" would have a pretty hard time standing up in court if you were just on a dive somewhere, especially if you paid for a charter that provided a DM. Yes, you would be looked at to see if you held a duty of care, but it would be pretty difficult to establish that there actually was one.

Also mentioned in this thread (and I agree with it)was that if you are a DM/instructor, and don't respond in some way to a situation because you are afraid of litigation, you should be flogged. In my opinion, when you make that step to a "Dive Professional" you are taking a responsibility upon yourself, and that's a decision you should make before you do it. Should you carry insurance? Yes. it's the price you pay.
If someone is interested in taking their dive training to a higher level, and doesn't actually intend to perform the duties of a DM/instructor, or want to deal with the associated ramifications, I would recommend other avenues, such as tech courses, or DIR. The training is excellent, you can most definitely better yourself as a diver, but you don't have the legalities associated with the professional levels.

THANK YOU! This is also what I've been trying to explain...although obviously not as eloquently as Andy, Michael and you.

I haven't been around all day, so i need to catch up on this thread...then I'm sure I'll have another comment or two

BTW...what part of Austin do you live in?? That's where I'm from...I had a house in NW Austin Near the Arboretum (Great Hills)...sold it a couple of years ago

 

[ClassAction]

I am so HAPPY-HAPPY-HAPPY I don't live in the US!

-We don't have the death penalty, and
-we don't have a legal system that lets hungry lawyers molest people's lives with unrightful lawsuits and fantasy claims for mistakes their clients actually brought on themselves just by being STUPID!

There's some truth to this, but I get a little sick of people assuming that no good comes from lawsuits and lawyers. (And no, I'm not a personal injury lawyer). One: I've seen quite a few negative comments about lawyers in this thread, but I don't see a ton of thanks to our resident legal advisors. Two: Everyone loves the McDonald's lawsuit, but not everyone realizes that the court had one goal in mind -- to make the world a little safer. The huge award was not to compensate the plaintiff, but rather to make sure that McDonalds (and other potential defendants) would think twice before knowingly doing anything that hurts people. Three: I've spent several years living in Europe, so I'm quite familiar with your system. Here's a great example. In the US, I worked at a 50-meter city swimming pool with no diving board. We had 10 lifeguards on duty. There was an identical pool near my home in Germany, but it had a (2 story?) dive platform, 2 high dives, and a low dive. They had 2 lifeguards on duty. Do the Germans simply care less about saftey? Probably not. But they don't have the crushing liability to force them to be safer. Same goes for skiing in the US vs. Europe. If there's a little pothole in the slope in the US, you'll see red dye in the snow, signs and maybe even a net. My wife almost fell OFF A CLIFF on a hairpin turn on a slope in Switzerland. No warning. No sign. If you don't nail the turn, you die. The same goes for diving outside the US. Will anyone disagree that diving in the US is 10X safer? Why? Liability. So I'm not trying to portray all lawyers as the shining white knights of society. But we should all recognize that these lawsuits force everyone to be a little safer, which is a good thing.

KOMPRESSOR: Please stay in Norway, watch out for all the murderers and rapists who are still alive, make sure you're tea is cool before you drink it, try not to drown at the local pool, make sure you don't fall off the slope, and hope that your dive boot is still there at the end of the dive. eyebrow I'm going to stay in the US where it's safe...

 

[Azza]

There's some truth to this, but I get a little sick of people assuming that no good comes from lawsuits and lawyers. (And no, I'm not a personal injury lawyer). One: I've seen quite a few negative comments about lawyers in this thread, but I don't see a ton of thanks to our resident legal advisors. Two: Everyone loves the McDonald's lawsuit, but not everyone realizes that the court had one goal in mind -- to make the world a little safer. The huge award was not to compensate the plaintiff, but rather to make sure that McDonalds (and other potential defendants) would think twice before knowingly doing anything that hurts people. Three: I've spent several years living in Europe, so I'm quite familiar with your system. Here's a great example. In the US, I worked at a 50-meter city swimming pool with no diving board. We had 10 lifeguards on duty. There was an identical pool near my home in Germany, but it had a (2 story?) dive platform, 2 high dives, and a low dive. They had 2 lifeguards on duty. Do the Germans simply care less about saftey? Probably not. But they don't have the crushing liability to force them to be safer. Same goes for skiing in the US vs. Europe. If there's a little pothole in the slope in the US, you'll see red dye in the snow, signs and maybe even a net. My wife almost fell OFF A CLIFF on a hairpin turn on a slope in Switzerland. No warning. No sign. If you don't nail the turn, you die. The same goes for diving outside the US. Will anyone disagree that diving in the US is 10X safer? Why? Liability. So I'm not trying to portray all lawyers as the shining white knights of society. But we should all recognize that these lawsuits force everyone to be a little safer, which is a good thing.

KOMPRESSOR: Please stay in Norway, watch out for all the murderers and rapists who are still alive, make sure you're tea is cool before you drink it, try not to drown at the local pool, make sure you don't fall off the slope, and hope that your dive boot is still there at the end of the dive. eyebrow I'm going to stay in the US where it's safe...

You poor deluded soul.
In the rest of the world people realise they have a responsibility for their own personal saftey and to use a little common sense in day to day life.
What you are saying is that people in the US of A can forget about taking personal responsibility and just sue the arse off some one else if they injure themselves...

 

[Valwood1]

However, something many people don't understand about lawsuits, is that initially, numerous parties are typically named as defendants. Through the Discovery process (a fact finding process basically), defendants get dropped from the case as it is determined that there is no cause of action against that particular defendant. This is just part of the process.

That's partially true (a lot of defendants often get named initially), but also a little naive, since the question of negligence (and possibly, the existence of a duty) is answered at trial by the trier of fact; whether, as a matter of law, a defendant isn't liable is another matter. And defendants rarely are dropped voluntarily by the plaintiff(s) simply because the plainitff was a fair-minded and generous fellow; if a defendant is "dropped", it is almost always because the defendant filled a motion requesting same, after going through a boatload of money in discovery and the usual pre-trial procedures. Thus, as described in another post:

3. Even if you did nothing wrong and even if you will not be liable, it still stinks to be sued. It costs money, time and stress.

Still, I suppose it's best to believe in the ultimate triumph of justice. Despite what we read, that result usually is found in Amercan courts. The complaint is that it takes so long, and costs so much, to get there.

 

[Valwood1]

... on a slope in Switzerland. No warning. No sign.

Maybe the Irish, at least, are getting better. I always enjoyed the sign at the Cliffs of Moher saying "CAUTION Very Dangerous Cliffs Ahead". One might think that this was obvious -- it's a 700' vertical drop -- but many people stilled crawled to the edge to look over.