People not fit to dive

[tridacna]

In America at least - if an op were to deny services to an elderly customer, regardless of any "we reserve the right to refuse service to anyone" signs or policies, they run a serious risk of an age discrimination lawsuit. Merit or not, reasonable or not, it's a goodly risk to consider. Many times, an op might provide services against its better judgment, and simply hope nothing happens.

That is not true. In the USA, any dive op has the final say in determining who can and who cannot dive on their boats. They are the sole arbiters. Provided that their determination is not based on anything other than ability to safely participate, they are well in their rights to refuse service to whomever they please. This applies to overweight, elderly, infirm or unruly customers. This has been demonstrated repeatedly in law at amusement parks and other forms of recreational activities.

Any operator may turn down a customer for safety reasons. Following your logic, an insurance company would have a fabulous time denying coverage.

 

[NudeDiver]

That is not true...

It most certainly IS true.

 

[tridacna]

It most certainly IS true.

It most certainly is not true. My wife specializes in this type of law as does one of my closest friends who is a NJ Supreme court justice. We had a healthy discussion about this yesterday. I assumed your position. They laughed me out of the water. I then checked with an insurance expert who agreed with them. They quoted eight cases which clearly support their position.

When you do not understand something, it is best not to comment or pontificate with nonsensical and clearly inaccurate statements.

 

[geokr]

That is not true. In the USA, any dive op has the final say in determining who can and who cannot dive on their boats. They are the sole arbiters. Provided that their determination is not based on anything other than ability to safely participate, they are well in their rights to refuse service to whomever they please. This applies to overweight, elderly, infirm or unruly customers. This has been demonstrated repeatedly in law at amusement parks and other forms of recreational activities.

Any operator may turn down a customer for safety reasons. Following your logic, an insurance company would have a fabulous time denying coverage.

This is an interesting discussion and enlightening, for sure, to anyone who dives with commercial operators and that would be most of us. If I understand correctly, under law operators may choose to deny service, without fear of being discriminatory, as long as the reason is "safety", in their opinion - correct? No other reason? That's a pretty long leash. Any act by one could be considered by someone else to be "unsafe" to some degree no matter the preparation, training, equipment, etc. of the first. It would seem that there still must be some standard applied, even of safety, that keeps that determination from being deemed discriminatory. Does the law apply such a standard?

 

[tridacna]

This is an interesting discussion and enlightening, for sure, to anyone who dives with commercial operators and that would be most of us. If I understand correctly, under law operators may choose to deny service, without fear of being discriminatory, as long as the reason is "safety", in their opinion - correct? No other reason? That's a pretty long leash. Any act by one could be considered by someone else to be "unsafe" to some degree no matter the preparation, training, equipment, etc. of the first. It would seem that there still must be some standard applied, even of safety, that keeps that determination from being deemed discriminatory. Does the law apply such a standard?

In an amusement park, an operator may deny ride entry to any patron if they feel that the rider's safety may be compromised or jeopardizes others. Remember the height bar at a ride? The height limitation is not only for children. It applies equally to people without legs, children, midgets/dwarfs, (there I said it), and anyone who doesn't meet their safety standards. A dive operator is similarly under no obligation to accept anyone who walks on board. Provided that he discriminates solely on safety issues, he will have no problems with lawyers. (Remember that anyone can always sue - success is not guaranteed).

This from (one of the many) Rules and Regulations at King's Dominion Amusement Park:

"For safety reasons, some riders may be restricted from riding certain attractions because of their height or physical limitations. Due to the seating devices on certain rides, large guests may not be able to ride."

Operators may exclude riders (divers too) if they fell that safety is compromised.

 

[tridacna]

If I understand correctly, under law operators may choose to deny service, without fear of being discriminatory, as long as the reason is "safety", in their opinion - correct? No other reason?

No other reason other than they would soon be out of business if they turned away the majority of their customers. Extend the analogy. Do you suppose that a skydiving operation has to allow any qualified person to jump from their plane? Even if that person has put on 200 lbs since their last jump?

 

[MMM]

Geokr, your initial response to my question was an accurate interpretation of what I was asking. You can bet your bottom dollar that if a diver is killed or seriously injured, it's not the other divers he/she will be suing, but the operator and/or divemaster (although their injury/death will probably wreck my day). I've seen ops refuse to take people who have been drinking. That's a pretty obvious one. But frailty, gross obesity etc. are tougher to call, but no less risky.

I rather suspect that a diplomatic conversation between the operator and the divers had something to do with their decision to cancel their dives the next day after observing them the first day. And I wouldn't be surprised to learn that this individual had early stages of dementia...

My elderly parents (just slightly older than the diver in question) shouldn't be driving, but they still are.

 

[Buoyant1]

To support Tridacna's information...

I have a friend that has a daughter who works at an amusement park, (Hersheypark) I know for a fact that they can deny you a ride if you are too BIG to fit on the ride safely, or too small. (Dwarfs included) The case cited is when pro wrestling was in town this past summer (or last summer, I don't totally recall) and there were some "midget wrestlers" on this tour. They went to the park the day of the match (I think they get complimentary tickets) and they had to deny the guy entrance to one of the roller coasters because he didn't meet the height requirements. His argument was that even though he was little, he was an adult (well aparently not by the way he was acting either, but that's another story) So she had to call her manager, and the manager tried to explain to this person the safety issues. So they turned him away...He tried again a while later when there was another person running the ride, and they went through the same thing.

Years back, I witnessed a rather large woman attempting to ride one of the coasters who didn't fit into the seat with the safety devices properly attached. She pitched a hissy fit (and caused us to wait even longer) until the manager came to tell her what the two poor teenagers were trying to tell her for the past 10 minutes that "you can't fit into the seat, and we can't get the safety bar closed properly, and that there is NO WAY we can operate this ride in this manner" (in fact the computer would not allow the system to engage with the safety bar that far out from the seat.)

This past summer I dove with a gentleman on the Duane who was probably well in his 60's (could have been older) At first I was skeptical, but figured he's here, they seem to know him, so why not!?! He was a very competant diver and it was a pretty gnarly day on the wreck, but he was great! Hard to dispute age in any cases though!

 

[geokr]

If I'm drilling down too far I apologize. I thought it interesting from a legal standpoint (though I'm not a lawyer) that this can occur and was interested in the standards that would be applied should a Judge have to make a determination on "what is safe" in court. Does the law, either in code or interpretation, use a set of rules that is applied to make that determination. If there is an answer it would be useful as guidance both at the dive shop counter and before we clutter up the courts with needless litigation. Great questions and answers from all. Still looking for the "Gotcha".

 

[rstofer]

In the amusement park tales, the behavior or characteristic that would make a customer unsafe or disruptive is apparent at the start of the event. It's an ovservable fact. In the case of a diver (young or old), the behavior that would warrant exclusion for safety reasons might not be apparent on the boat.

I don't think you can get away with excluding someone strictly for age when you can't demonstrate that they are factually unsafe. And you can't necessarily do that without letting them dive. Of course, an op could have a policy of excluding all people above a certain age. Then again, they'll be sued out of business before lunch can be served.

As to fumbling with the gear? Well, unless someone dives all the time, it may take a few seconds to clear out the cobwebs. Is that dementia? Prove it! It could be as simple as being distracted - a close family member died a couple of days ago. That kind of distraction. Or it could be the hotty across the deck; I know I would get distracted. I've been known to drool!

I think most people know when they are no longer able to dive. This just isn't a big issue. And, BTW, with the aging population guess which age group has all the money?

Richard