opiniongirl:
In light of some recent posts, just wondering if any lawyers could shed some light on liability here and what could potentially happen in court? Anyone?
An OW diver pays an operator to go out on a dive trip. The trip includes a divemaster guide. The diver signs a liability agreement, and the operator asks a few questions but does not check for certification card.
The divemaster leads the group, the diver is paired with another diver. These two divers trail behind, as the divemaster leads the group to 100 feet. The OW diver sees his buddy run low on air and ascend. The OW diver, feeling the effects of narcosis, can't get the divemaster's attention, swims too fast and get's overexerted, and panics - tossing his regulator and bolting for the surface. He embolizes and is permanently injured.
Considering that the OW diver was only certified to dive to 60feet, would the operation be liable? Even with a liability agreement? How about the divemaster?
What if same diver informed the Divemaster of his depth limit, and the divemaster told him it would be fine as he would be guiding? What would be your argument to the counter that the diver is certified?
What would be the chances for a successful lawsuit?
What would be the damages ($)?
(For those instructors who already know the answer to this - hang on...)
I am a lawyer and a divemaster, but I'm not sure either of those qualifications will help to answer your questions. But here are some comments:
The effectiveness of liability agreements (or waiver/releases) is different in each of the 50 plus jurisdictions in the United States. Because of the differences, your question really can't be answered. The usual issue that comes up is not coercion to sign such agreements (as someone mentioned in a post), but whether such agreements are made "knowingly". That word has a distinct legal definition in each jurisdiction. As pointed out by a recent (I think New Jersey) decision, the waiver is not effective to extinguish the rights of survivors in death cases. If if the agreements/waivers are drafted correctly and executed knowingly, they usually won't cover the active negligence of the waived party. So that, the dive operator sends the diver down with almost no air and the diver dies, the waiver is not going to be much good, no matter what it says. A lot of law and a lot of issues regarding these waivers. Snow skiing has similar issues. On not seeing the cert card, the operator is going to have some problems with a non-diving jury explaining why he doesn't check card levels and restrictions before planning his dives. Divers usually argue about the personal responsibility of the diver who knows his cert limits, but what is the diver supposed to do in your scenario, stop and leave her buddy and divemaster (unseen, I guess) and stay at the limit or surface. What if the diver is checking depth every second anyway and assumes the divemaster is staying in conservative limits. What if the diver isn't reasoning well at depth (narcosis, fear, whatever a new diver may experience) and can't make perfect decisions. That's probably why he's paid to go with an operator and dive with his staff.
As the guy's lawyer, I'm going to argue that the DM isn't watching his depth and isn't watching his divers, that he didn't get a good enough idea of the competency and restrictions of his divers and that there was know plan. The diver has presumably paid for this kind of consideration. He hasn't paid just for the boat ride and to be dumped in the water. The waiver, if it had any validity, is getting weaker and weaker.
In my jurisdiction, the DM would be defending himself as an individual and as an agent of the dive operator. The dive operator would be separately liable. Remember, being liable doesn't mean you can't defend yourself- the waiver, the contributory negligence of the diver who is bringing the claim, etc. Liability only means a legally cognizable claim can be made against you. Ultimately, the liability is found by the fact finder (can be either a jury or a judge, depending).
The divemaster is hired/used for a reason. Instructors and/or divemasters traditionally argue their professional status at every opportunity, but then when something happens, responsibility seems to always get loaded back on the diver. If the pro's certification doesn't mean he's got responsibility for making bad decisions, why is the client diver's certification relevant? The diver is relying on the expertise of the pros who held themselves out as pros. That is where the pros are going to find themselves vulnerable (as they should be). Otherwise, pros should advise their clients at the shop or before entering the water that they don't know what they are doing and that they should not be relied on for anything.
These are odd questions as you must know you've given no facts as to the level or extent of injury. Permissable damages vary by jurisdiction. Some states restrict damages to compensatory; some, permit punitive damages. You haven't given enough fact regarding the accident or the injuries for anyone to give you an idea what the value of any claim might be. Juries usually are only given the guidance that they be "fair, just, and reasonable".
