Question for any lawyers

[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...)

 

[Walter]

(For those instructors who already know the answer to this - hang on...)

There is no definitive answer. It will depend on the local law and often the whim of the jury.

 

[scubasean]

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...)

wow...Are you asking about Canadian law?

Also, you seem to be of the camp where a diver isn't responsible for making his/her own decisions, good or bad....True?

And, does certification above OW really matter(as compared to recent dive experience)? An instructor who has only dived once in ten years is probably quite dangerous...

 

[opiniongirl]

wow...Are you asking about Canadian law?

Also, you seem to be of the camp where a diver isn't responsible for making his/her own decisions, good or bad....True?

And, does certification above OW really matter(as compared to recent dive experience)? An instructor who has only dived once in ten years is probably quite dangerous...

Canadian, US, I'm interested in it all..

I think divers are responsible for making their own decisions - absolutely. I do however, find it interesting that many professionals erroneously believe that they still can't be successfully sued in guiding situations with certified divers. I believe that there is a fiduciary duty with paying customers. And my question included the cert level, because it signifies a beginner, whereas an instructor (regardless of his last dive date) would likely always be considered an expert. I believe that a lot of instructors don't protect themselves as they should, and take chances which would ruin their lives forever if there were an accident. Ultimately, I think a judge or jury would rule in the customer's favor.

Just curious.. Part of my real-life job is in counseling investment advisors on how to reduce their legal risk, and I see a lot of parallels.

 

[DandyDon]

There is no definitive answer. It will depend on the local law and often the whim of the jury.

That, and the skill of the lawyers.

the operator asks a few questions but does not check for certification card.

Suggest negligence on the part of the operator.

The OW diver sees his buddy run low on air and ascend.

Suggests negligence on the part of the OW diver, who should have reamined in the buddy pair.

The diver signs a liability agreement,

You mean "release"? The OW diver accepts, affirms, and acknowledges risk, takes it anyway, is negligent in his diving, and should not have a valid claim. Agencies suggest a 60 bottom for OW divers, but furnish them with 130 foot Dive Planners.

But ultimately, while a SB jury might say the OW diver was at greater blame, it'd depend on the jury. If I was rejecting jury candidates, I'd try to get as many older women as possible.

 

[scubasean]

Canadian, US, I'm interested in it all..

I think divers are responsible for making their own decisions - absolutely. I do however, find it interesting that many professionals erroneously believe that they still can't be successfully sued in guiding situations with certified divers. I believe that there is a fiduciary duty with paying customers. And my question included the cert level, because it signifies a beginner, whereas an instructor (regardless of his last dive date) would likely always be considered an expert. I believe that a lot of instructors don't protect themselves as they should, and take chances which would ruin their lives forever if there were an accident. Ultimately, I think a judge or jury would rule in the customer's favor.

Just curious.. Part of my real-life job is in counseling investment advisors on how to reduce their legal risk, and I see a lot of parallels.

I think the problem is that defending the suit is quite costly, regardless of whether you win.

I disagree that an OW cert automatically indicates a beginner, which is why I mentioned the number of recent dives being a factor...It merely indicates that they didn't get formal training beyond OW...And although I carry my OW card and use it on boats, etc., my actual cert level is somewhat higher...depending on how you view other certs...

Part of my job involves legal risk counseling...in a much different area and job than yours...heh

 

[inter_alia]

I also know that it would depend on the jury and the quality/luck of any attorneys involved. However, my knee-jerk reaction is that the chances for a successful lawsuit are next to nil. You can certainly sign away your ability to sue because of the negligence of the operator/dive master and you can still certainly try to get around any liability releases in court. (Not much happens in court, of course, when you're dealing with litigation anyway -- but that's a whole other can of worms.)
Legal debates in the scuba community, as far as I've seen, tend to center around wrongful death claims. As a diver, I can sign away the operator's negligence but as a person making a contract, I cannot sign away rights I do not have... in other words, my husband's right to sue if I die on a dive trip (a wrongful death cause of action) has a much better chance of getting in front of a jury than the situation proposed by the original poster. Checking for certs or not, etc., isn't the real issue when you're a person putting yourself in deep water breathing from a tube... inherent risks that each diver accepts, you know?

For practicality's sake, I wouldn't dream of suing a dive op. In my eyes, they're nearly judgment proof and I'd put out thousands in legal fees before actually discovering that. Litigious America drives me crazy. We should all take responsibility for our own actions. Just because the courts exist doesn't mean we have to use them...
IMHO.

 

[inter_alia]

[snip] I believe that a lot of instructors don't protect themselves as they should, and take chances which would ruin their lives forever if there were an accident. Ultimately, I think a judge or jury would rule in the customer's favor.
[snip]

I don't know about that. I can see a jury of regular folks kind of snubbing the idea that the injury suffered by some well-off daredevil who thought a weekend of scuba diving (a well-off daredevil hobby, if we're realistic here) was a nice way to spend $200... that it was something worth a large award of damages. My state has been called "tort hell" but my county is more middle-of-the-road. I've seen juries here get more and more fed up with people suing for anything that's not grossly photographic or resulting in a loved one's death.
If an experienced scuba diver was a plaintiff, for instance, a defense attorney might just put forth evidence of how much money that plaintiff was willing to part with over the past year taking trips every other weekend, buying gear, whatever. Thousands of dollars, easily, and any jury could just decide that they certainly accepted the risks...

I'm just thinking out loud here, I am not a litigation attorney or anything.

 

[inter_alia]

Ok. I'll stop after this but I just had another thought:
The problem with holding the dive master responsible is that for that person to try and "rescue" fleeing, ascending divers puts other divers (and the dive master) in peril, as well. Doesn't it? From any depth, I just can't see a fellow diver (or dive master) responsible for NOT lunging after anyone bolting to the surface. If we're only talking about litigation, evidence could be entered about what any reasonable person at depth should not do after a certain point ... i.e., even if my buddy bolts upward I likely won't bolt with them unless I'm panicking as well. Let's assume dive masters don't panic -- they don't do rapid ascents.
This makes the problem interesting to me because in other "well-off daredevil" sports or hobbies, an instructor CAN be expected to follow/ run after/ help a panicking student. Maybe in skiing, for instance. With diving, none of us would expect anyone to come after us if we're rising faster than bubbles... and with skiing, nobody would expect an instructor to follow the student over a ledge.

Right?

 

[Firefyter]

With diving, none of us would expect anyone to come after us if we're rising faster than bubbles... and with skiing, nobody would expect an instructor to follow the student over a ledge.
Right?

That all depends on what kind of a grip you have on them (ref. your signature line)...LOL. Sorry, it was just too good to pass up