Parents sue Boy Scouts for 2011 negligence death

[flots am]

oh, the good old days of programming in assembler the 1 Kb of ZX80 - "640K ought to be enough for anybody."

The really funny part is that if you're actually coding in assembler, 640K is a ton of memory.

This starts to expand quickly when you need device drivers for every piece of hardware ever invented and people want fast access to multi-terabyte datasets, but generally speaking, there's no excuse for Grandma's email reader/web browser to need more than 1GB of RAM.

flots.

 

[demed]

The really funny part is that if you're actually coding in assembler, 640K is a ton of memory.

This starts to expand quickly when you need device drivers for every piece of hardware ever invented and people want fast access to multi-terabyte datasets, but generally speaking, there's no excuse for Grandma's email reader/web browser to need more than 1GB of RAM.

flots.

...maybe in the Lynx era

 

[clint@uniquescuba.com]

I find it "Awesome" that someone old enough to spit out "Perry Mason" references would be able to also include themselves in the Window Source Code Vanguard.

 

[scagrotto]

How about a viable analogy?

I was simply making a point about the relevance of your statement about PADI's business success. There may be valid arguments that all PADI standards are as safe as they should be, but being "the most successful dive franchise in the world bar NONE. PERIOD." isn't one of them, just as McDonalds' success isn't evidence that their offerings have no deficiencies. The possible lack of hundreds of verdicts against PADI isn't any better. Thousands of lawyers make a very nice living based on a low rate of injuries caused by a wide variety of products that the vast majority of people use without serious incident, and most of those businesses continue to be profitable.

We are talking about safety in a life-critical context.... has anyone died from a McDonald's hamburger (obesity and other secondary causes notwithstanding) ?

I appreciate the concession that the nutritional qualities of their hamburgers may be a contributory cause of death, but the relevance only depends on whether their success as a business precludes legitimate questions about deficiencies in their offerings.

And have there been any verdicts bankrupting the corporate franchise to the point of shutting them down?

Speaking of straw men. You'd have to be exceedingly stupid to believe that legal problems of that magnitude are required to raise legitimate questions about whether a corporate offering has the potential to be dangerous, or that continued business viability establishes a lack of such potential. On the off chance you're not familiar with them, you might want to Google cigarettes. It wasn't that long ago that a lawyer could say with a straight face that verdicts that proper use of cigarettes had ever killed anyone were exceedingly rare. If there's consumer demand a business can be successful by meeting that demand, even if it kills some of the consumers.

 

[Jim Lapenta]

For the most part I don't cut and paste anything unless I am quoting a person. My articles, essays, and book are all my own words, even though someone insinuated that was not the case, based on my own actual research, experience, training, and beliefs. But this was sent to me by someone following the discussion here and on one of my linked in groups. Too good not to share it.

"You are receiving this email from us in response to the recent PADI Insurance Alert which was sent out via bulk email. If you did not receive the PADI Alert, please accept our apologies and ignore the contents of this email. We would also invite any and all concerned members of the dive community to contact me directly with any additional questions or concerns regarding this issue at any time.

PADI “INSURANCE ALERT”​

You have to hand it to PADI, they do know how to cause a fuss. They should, however, stick to trying to explain their own program because they inevitably get it wrong when talking about ours. Here are the facts:
1. While we do want to make some changes to the ratios we insure for Discover Scuba diving (DSD) type programs, those changes will not affect any policies already in force at January 1, 2013.
2. We have been discussing introductory program ratios with many of the training agencies out there and believe that changes are needed (some have already changed and some are reviewing changes as we speak). You should know, however, that this has nothing whatsoever to do with SDI as suggested by the PADI alert. We have never had any issues, or claims, involving SDI introductory programs, or SDI members involved with introductory programs. Our issues are strictly with the PADI DSD program. The real problem is that PADI ratios are not defensible in many circumstances (more on that later).
3. This is not new information and there is no need for any drama. PADI have been aware of our concerns for quite some time (years in fact) and we have been discussing those same issues with Willis insured’s on a continuing basis.
4. If you are a current Willis insured with a policy issued prior to January 1, 2013 you are fully covered for PADI DSD Programs, even with a 4:1 ratio. You do not need to take the precaution of “immediately reducing introductory scuba program ratios”, “or risk denial of coverage” as the PADI Alert says. Your current policy guidelines remain in effect. I’m not sure why PADI has to misrepresent the truth when they could have simply asked us, but that seems to be their typical modus operandi.
So, the PADI “Alert” is incorrect as usual. Now let’s turn our attention to the real issue at hand.
INCIDENT #1
On July 13, 2011 two minors (a 12 year old boy and a 13 year old boy) and an adult participated in a Dive Experience program (Discover Scuba Diving) led by a certified PADI Instructor. During their return to shore along a safety line, at a depth of 14 feet, the adult had issues with buoyancy and began to make a rapid ascent to the surface. The Instructor quickly caught the surfacing diver and returned to the safety line to find both boys missing.
One of the boys was found safe and sound on the surface and the other was found unconscious on the bottom. He never recovered.
This incident has resulted in legal action against PADI and the individual Instructor involved (The Estate of David Christopher Tuvell v. Boy Scouts of America, Professional Association of Dive Instructors (“PADI&#8221, et al, Case No. 1:12-cv00128 U.S. District Court for the District of Utah).
Now comes the interesting part. Willis insures the instructor involved and immediately assigned a well-known dive attorney, David Concannon, to perform a site evaluation and review the incident. Based on this investigation, it was clear that all PADI DSD standards had been met. The instructor involved reported the incident to PADI in the required manner and was summarily expelled from PADI, just 13 days after the incident. The only reason given by PADI was: “your continued membership is not in the best interests of PADI.”PADI did not do an on-site investigation, interview any witnesses or even obtain a copy of the police report. PADI also did not provide the instructor with any reference to standards that may have been violated, yet they expelled him immediately (copy of the redacted letter attached). The instructor formally requested a review by PADI (copy of his redacted letter attached) but he has had no response whatsoever.
Who is currently defending this PADI instructor? The Willis Dive Program underwriters!
PLAINTIFF ATTORNEY IS A PADI INSTRUCTOR
Interestingly, the plaintiffs’ attorney who is suing PADI and the PADI Instructor on behalf of the family in the Tuvell case is also a PADI Master Instructor. See: http://www.divelawyer.com/about-us/our-team/ According to the plaintiffs’ lawyer’s web site, “Mr. Hall has been a PADI open water instructor since 1984, with a Master Scuba Diver Trainer rating having provided instruction on every level of diving including numerous specialties. He is a certified NACD cavern instructor, a cave diver through NACD, GUE and NSS-CDS and a recipient of the Wakulla award, and holds additional certifications through IANTD. He has vast experience with mixed-gas diving, deep diving, cave exploration and wreck penetration.”
And what are some of the allegations he is making in the complaint?
· “The PADI DSD program in use by the defendants was defective in all its design and elements negligently created, and inappropriate for use.”
· “The Defendants were all aware of the defects in the program,”
PADI STATISTICS
This is only one of many reported incidents involving DSD programs over the last few years, and it is clear from these reports that current ratios and age requirements are not adequate for these programs. According to PADI statistics (DAN Dive Fatality Proceedings 2010) there were 36 DSD fatalities reported between 1989 – 2008 and there have been many more since. The following statistics were provided by Drew Richardson at the DAN workshop:

[TABLE="class: MsoNormalTable"]
[TR]
[TD]Program
[/TD]
[TD="colspan: 5"]Historical Fatality ratio (fatalities per 100K dives)
[/TD]
[/TR]
[TR]
[TD="width: 266"][/TD]
[TD="width: 155"]

1989 - 1998​

[/TD]
[TD="width: 176"]

1999 - 2008​

[/TD]
[TD="width: 124"]Average
[/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[TR]
[TD="width: 266"]Entry Level
[/TD]
[TD="width: 155"]

0.341​

[/TD]
[TD="width: 176"]

0.415​

[/TD]
[TD="width: 124"]

0.378​

[/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[TR]
[TD="width: 266"]Advanced Open water
[/TD]
[TD="width: 155"]

0.74​

[/TD]
[TD="width: 176"]

0.589​

[/TD]
[TD="width: 124"]

0.6645​

[/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[TR]
[TD="width: 266"]Discover Scuba Diving (DSD)
[/TD]
[TD="width: 155"]

2.898​

[/TD]
[TD="width: 176"]

1.14​

[/TD]
[TD="width: 124"]

2.019​

[/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[TR]
[TD="width: 266"]Rescue Diver
[/TD]
[TD="width: 155"]

0.143​

[/TD]
[TD="width: 176"]

0.091​

[/TD]
[TD="width: 124"]

0.117​

[/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[TR]
[TD="width: 266"]Specialties (deep, night, wreck etc.)
[/TD]
[TD="width: 155"]

0.287​

[/TD]
[TD="width: 176"]

0.82​

[/TD]
[TD="width: 124"]

0.5535​

[/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[TR]
[TD="width: 266"]Divemaster
[/TD]
[TD="width: 155"]

1.016​

[/TD]
[TD="width: 176"]

0.031​

[/TD]
[TD="width: 124"]

0.5235​

[/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[TR]
[TD="width: 266"][/TD]
[TD="width: 155"][/TD]
[TD="width: 176"][/TD]
[TD="width: 124"][/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[TR]
[TD="width: 266"][/TD]
[TD="width: 155"][/TD]
[TD="width: 545, colspan: 4"]*ratio was reduced from 6:1 to 4:1 in 2001
[/TD]
[/TR]
[TR]
[TD="width: 266"][/TD]
[TD="width: 155"][/TD]
[TD="width: 176"][/TD]
[TD="width: 124"][/TD]
[TD="width: 122"][/TD]
[TD="width: 122"][/TD]
[/TR]
[/TABLE]
Even PADI’s own numbers suggest that the DSD program has issues!

INCIDENT #2
There is current case law which indicates that 4:1, 3:1 and even 2:1 ratios are dangerous under certain circumstances. Isham v. Padi Worldwide Corp., 2008 U.S.District Court Hawaii…, is a good example for several reasons:
1. The PADI Instructor involved, who was seriously injured himself during the accident, actually sued PADI for “Fraudulent Concealment” and “Negligent Misrepresentation” with respect to the safety of the DSD program. There was a “confidential” settlement in that case.
2. The injured DSD participant also sued PADI and there was a “confidential” settlement with him as well.
3. The judge in that case, included several negative comments in one of his orders (copy attached for review):
a. “PADI received letters from its members who ran PADI dive instruction classes. One such letter said “Please consider changing the ratio to 2:1 (but whatever you do – DO NOT increase the ratio)”
b. “PLEASE-PLEASE-PLEASE DO NOT change the maximum depth limit of 30 feet.”
c. “Shortly after the Discover Scuba Experience was released, PADI received another letter, which was written by a PADI member who employed 102 PADI instructors and averaged 55 introductory dives a day, The letter stated that “past experience has proven that even the most experienced of staff can have difficulty with only four participants even under “ideal” condition.”
d. “In 1997, a participant in the Discover Scuba Experience got separated from the group and died by drowning. The Coast Guard investigated that death and determined that the drowning occurred because of the participant’s diving inexperience and the lack of direct supervision by the dive instructor. The Coast Guard further determined that the Discover Scuba Experience instructions were ambiguous with respect to the meaning of direct supervision and in other respects.”
e. “The Coast Guard strongly recommended that PADI clarify their Discover Scuba Experience manual and that it was imperative that they provide clear instruction to help prevent dive casualties.”…”PADI did not provide evidence that it clarified its instruction manual regarding direct supervision”.
“Direct Supervision”, or the inability to provide it, appears to be the real issue here. If you have a problem with a DSD participant and have to attend to that individual, the rest of your participants are technically “alone” at that point. Regardless of your ratio it seems clear that this ends up being a violation of PADI standards!

CONFIDENTIAL SETTLMENTS
Confidential settlements seem to be a recurring theme with respect to DSD litigation and we must wonder why that is? We also have to wonder why there are so many? Of course, we don’t know the real numbers, but we think it would be beneficial to the industry at Large if PADI shared these numbers. After all, isn’t that how we improve the safety of our sport for all participants?
I could keep going on and on with examples like Veasey v. Hubbard et al..., 2011 U.S.District Court Hawaii, but the few we have discussed here surely have to be enough to cause some concern about the safety of current PADI DSD standards.

QUESTIONS?
So, if the information presented here has caused you some concern, we would suggest you contact PADI and V&B and ask for formal clarification of the following questions:
1. If a PADI Instructor conducts a DSD program with 4 participants and has to deal with an emergency situation involving one of the participants, is he / she still able to meet the PADI requirement to maintain “direct” supervision of the other participants?
2. If a PADI Instructor cannot maintain direct supervision of all his / her DSD participants because he / she need to address an emergency issue, and an accident results, will PADI expel the Instructor as they did with the instructor in the Tuvell case?
3. If I am expelled from PADI, will my V&B insurance still defend me like the Willis insurance is doing in the Tuvell case?
I think you need to get the answer to these in writing, because your future, or the future of your business, may well depend on it.

If the answers to these questions (if there are any!) leave you a little less than reassured, maybe it’s time to start looking for a different training agency?
While our primary goal is to provide appropriate insurance coverage for our client’s activities, we also feel it is important to help our clients avoid significant exposures of this nature, and that is the reason for this update. All Dive Leaders, Dive Facilities and Dive Vessels providing DSD type programs to their customers, need to be aware of these important issues, and should spend some time developing proactive Risk Management protocols specifically aimed at preventing DSD accidents.

ONE LAST COMMENT TO PADI
I would like to offer one last personal comment to the powers that be at PADI. Why do you have to behave like this? DIVE INSURANCE ALERT indeed! This is serious stuff – many people have lost their lives, a 12 year old boy is dead, an instructor who followed your standards is expelled by PADI without due process and is sued as a result – and you are concerned about selling insurance!
Shame on you.


Best regards.


Peter Meyer
Willis Recreational Dive Programs

 

[Dr. Lecter]

I believe the technical phrase for that is 'Getting your arse handed to you."

 

[Wookie]

I believe the technical phrase for that is 'Getting your arse handed to you."

Ummm. Peter Mayer was asked to leave Willis, and Willis has terminated their dive insurance program. An arse handing to an 800 lb sack of turds isn't what it used to be. I have had lengthy conversations with Peter since. I can't wait until next insurance renewal.

 

[Omisson]

I was simply making a point about the relevance of your statement about PADI's business success. There may be valid arguments that all PADI standards are as safe as they should be, but being "the most successful dive franchise in the world bar NONE. PERIOD." isn't one of them, just as McDonalds' success isn't evidence that their offerings have no deficiencies. The possible lack of hundreds of verdicts against PADI isn't any better. Thousands of lawyers make a very nice living based on a low rate of injuries caused by a wide variety of products that the vast majority of people use without serious incident, and most of those businesses continue to be profitable.




I appreciate the concession that the nutritional qualities of their hamburgers may be a contributory cause of death, but the relevance only depends on whether their success as a business precludes legitimate questions about deficiencies in their offerings.



Speaking of straw men. You'd have to be exceedingly stupid to believe that legal problems of that magnitude are required to raise legitimate questions about whether a corporate offering has the potential to be dangerous, or that continued business viability establishes a lack of such potential. On the off chance you're not familiar with them, you might want to Google cigarettes. It wasn't that long ago that a lawyer could say with a straight face that verdicts that proper use of cigarettes had ever killed anyone were exceedingly rare. If there's consumer demand a business can be successful by meeting that demand, even if it kills some of the consumers.

Beyond the reality of economic viability in a hazardous sport like diving being dependent on reputation, success, and marketing... If PADI standards were as lax as the permanent anti-PADI crowd here claims -they would be long out of business. That's simple market dynamics. And your inability to qualify the difference, is exactly why you are hung up on the harangue rather than facts.

And Despite your repeated analogy issues, you move on to cigarettes... Yes another clearly useless fluff addition, but people knew they were dangerous and bought them anyway... That's JUST like following instructions in supervising people... NOT.

As a trial attorney I've seen more than my share of delayed response litigation- but that doesn't change the fact that in PADIs case they have 50 years of track record that says they do it fairly well.

But since you seem to miss the fundamental problem in equating hamburgers and scuba diving, It's called being a per-se dangerous activity, the assumption of risk is an inherent component that just doesn't seem to clear your conscious mind.

At any rate, I think the DSD ratios should have been 1:2 and mandatory assistants and DMs in certain conditions would go a long way to making it safer. But I'm tired of the nonsense from the peanut gallery about PADI being the evil empire. Are they perfect? not by a long shot. But they are a good training agency who has done a lot to support and develop the scuba industry.

Why that's beyond some people I'll never understand.

 

[Wookie]

But they are a good training agency who has done a lot to support and develop the scuba industry.

Why that's beyond some people I'll never understand.

I disagree. Vehemently. And it isn't beyond me at all, I am a certified, insured, updated PADI instructor. I see all sides of the argument. No, they aren't an evil empire, and they have some great employees, but they don't do anything positive for "the industry" unless it's positive for PADI. I can give a hundred examples that aren't analogies or straw men (I never really understood the term) or comparisons. What they have done is made it impossible for a training agency to exist that wants to make great divers out of non divers at the first certification level, because such an agency can't compete with the 4 day $159 cookie cutter course.

A childhood friend works for PADI in Rancho Santa Margarita. She is a good guy. She can't give me answers all the time when I ask her pointed questions. I've stopped, because the friendship is more important than learning why PADI does what it does.

 

[Omisson]

I disagree. Vehemently. And it isn't beyond me at all, I am a certified, insured, updated PADI instructor. I see all sides of the argument. No, they aren't an evil empire, and they have some great employees, but they don't do anything positive for "the industry" unless it's positive for PADI. I can give a hundred examples that aren't analogies or straw men (I never really understood the term) or comparisons. What they have done is made it impossible for a training agency to exist that wants to make great divers out of non divers at the first certification level, because such an agency can't compete with the 4 day $159 cookie cutter course.

A childhood friend works for PADI in Rancho Santa Margarita. She is a good guy. She can't give me answers all the time when I ask her pointed questions. I've stopped, because the friendship is more important than learning why PADI does what it does.

Then being an instructor for them makes you a total hypocrite. You don't like their standards, don't like their marketing, don't like their product... So why be a PADI Pro? TDI or NAUI are viable alternatives...No skin off my teeth.

Unless you get some benefit from affiliating with PADI.... Thought they were useless? Which is it?

But I'd say NAUI and PADI are responsible for half the innovations in scuba and 75% of the standards that were the baseline for every other agency. So how can you say they have done NOTHING for the scuba industry? That's just total whitewashing of history and facts.

PADI is also the largest singular contributor to DAN and I kinda like their safety and dive medicine research and statistics... And their courses.

And having continued marketing the scuba industry as a whole PADI had most certainly been a benefit to the sport - as well.

I understand the frustration of a dive operator looking to make a living being thwarted by market saturation and price competition- but wouldn't the solution be to build the better mousetrap not grouse about the competition?

I will anticipate the response- they are too big- you can't compete... Wonder how they got 70% of market share? They must be doing SOMETHING right.

Again- I can find plenty of flaws in PADI from their sale driven philosophy to the need to tighten and adapt standards.

But anyone saying they are wholly unsafe or have done nothing for scuba diving isn't being intellectually honest.

Such discussions are futile, May as well be punching a rhinoceros... All you do is hurt your hand and piss off the rhino.