Question for any lawyers

[opiniongirl]

No, you're right on that..

I guess where I'm coming from - is that how can a "buyer beware" on trust me dives when there is some expectation of guidance?

IE: The OW student knows his limit, but is encouraged to dive beyond it due to:
- the location (the op picks the site)
- the guide seeming not to care about taking the diver deeper beyond his depths
I think that any guide taking someone beyond their depth limits (note here - GUIDES - paid) would put additional legal risk on that guide should there be an accident.

I think any distaste for a lawsuit, might be overwhelmed by the distaste for a professional knowingly breaking a limit, and taking a diver beyond the limit where the diver is not fully aware of the risks. I wonder in that sense - would any liability agreement (ESPECIALLY if signed on the boat, a common occurance) be null and void as it has successfully been won in precedent that such contract was signed under duress?

I don't think a DM could be successfully sued if a diver panicked..but I DO think he could be successfully sued if he took the diver beyond their limits as trained by an instructor, the diver paid for the tour and expected supervision, and something happened. It's a fine line that neither diver nor professional should cross...but a lot of stories I'm hearing are about instructors crossing...and especially with the assistance I recently received from my member org on my last predicament - I saw a glimpse of how instructors are extremely easy to be the scapegoats...

And what does your footer mean...I'm getting testicles, heart and brain...? I'm dying to hear the rest.... ?

 

[PRL]

As long as the diver himself made the decision to dive to that depth. And the professional in no way knowingly or unknowingly influanced the divers decision to conduct the dive and in no way contributed to the dive plan other than the general breefing. There was no agreement that the professional would watch over the diver. The professional in no way interfered in the dive or the accident that could contribute to the injury. The professional followed the agency guidelines and left a detailed paper trail.
I would say that the Agency lawyers would stick it out and pursue a not guilty verdict.

If the professional contributed to the accident in any way ie: plan the dive, suggest a deeper target, or in any way knowingly or unknowingly contributed to the decision to conduct the dive or in any way interfered with the dive or the accident that contributed to the injury. The lawyers would be looking to sattle out of court. No metter if a liability release was signed.

Liability release is good to show that the diver understands the risks of diving. But it does not release anyone that knowingly or unknowingly contributed to the accident.

For example. If an old lady falls on on my driveway she can sue me and my insurance will have to cover the medical, and other costs. If I had a liability release from the lady to use my property, than she would be responsible. But if I didn't showel the snow or didn't salt the driveway than even with a liability release I would be found negligent.

As far as I am aware there are laws in other countries that imply responsibility to the dive professional, and IMO the verdict would be different

 

[inter_alia]

The footer is (this is PG, right): if you have their attention, their hearts and minds will follow. Firefyter is right about that grip... see?

So about the diver paying for the tour and signing a waiver on the boat: I still don't know -- in the case of litigation -- how heavy these facts make a cause of action. Duress could be brought in, but again, we're putting that in front of a jury and in my book "duress" should cost more than two aborted dives. Duress would be hard to show here.

I keep thinking "inherently dangerous" and besides being a difficult-to-control (the instructor not chasing after a bolting diver), scuba is also a group undertaking on most boats. Usually, there are so many people who had paid so much money to be there and to see things underwater. I watch the captains and deckhands and dive masters orchestrate all of this havoc on the cattle boats and I'm not in awe so much as I'm disgusted by how little gets appreciated or listened to. Loads of people, inexperienced or not, don't even pay attention to dive briefings and boat orientation speeches... so I'm concerned that you have suspicions that DMs can be held responsible for what happens under water when it's totally out of their hands. I'm more concerned after seeing your profile and thinking that you have some experience in this area. I mean, I'm just theorizing but it looks like this stuff could affect you.
I'll think more about this and hope others chime in as well.

 

[inter_alia]

so I'm concerned that you have suspicions that DMs can be held responsible for what happens under water when it's totally out of their hands.

What I meant was "out of their hands," literally. That the OW diver went deeper than they were comfortable/certified is something else, I think. What's out of the DM's hands is what we do under water that is unexpected. I would never expect anyone to put themselves in danger to assist me... but some people probably are steadfast that "someone should have been there" or something.

 

[scubasean]

I wonder in that sense - would any liability agreement (ESPECIALLY if signed on the boat, a common occurance) be null and void as it has successfully been won in precedent that such contract was signed under duress?

huh? Maybe I'm missing something important here...Where is the duress? And how does this flow with the original question?

If the diver doesn't want to sign, an act that is common in the industry, and usually takes place before the boat leaves...the diver can just leave, right?

If the diver doesn't want to sign the release, there is much more at stake than the $80 dive fee, right?

And the DM isn't there to assure that the divers gets back alive are they? I thought the DM was there to give a tour to already qualified people...folks that have independantly assessed their own condition and qualification to dive, and who have accepted the risks.

I'm interested in knowing why you are asking the question...What is the interest in a lawsuit? Did someone you know do this? Are you representing someone in this situation or perhaps assessing risk for insurance companies? (I presume an insurance company would have its attorneys assess the legal risk, so I don't think you are working for an insurance company...)

Inquiring minds are curious...

:banana:

 

[opiniongirl]

Ok...let me clear up where I'm coming from first..

I just exited a situation where the DS was terribly negligent...and there were injuries caused by contaminated air. I then started thinking, on my student's behalf - about how they can really be affected by the "buyer beware" when there is SO much trust in our professionals? It really stinks that my student may have waived rights to sue (I don't believe that releases really carry their weight anyway) in a situation where it would take an expert's eye to properly evaluate the conditions.

I have no sympathy for instructors and divemasters who break standards, and I feel that if a student gets injured due to a dive where standards are broken..then I don't feel that a liability release should get that individual off the hook.

So, two aspects inspired this thread: protecting the consumer from those who violate the standards, and protecting instructors from thinking that standards violations are ok. I'm scared to hear some of the stories on this board - and considering how litigious the US is, wondering why some are shrugging it off.

Even when you do everything right, you can still get sued. It's scary. I'm not an advocate for any lawsuits - but I've been saddened to see tragedy when it could've been avoided, I've seen instructors go through hell just by being lax, and I'm furious with my situation which put my health, the health of my team, the health of my students in jeopardy, and a whole ton of legal hassle which I now have to battle on my own.

As for the duress..no..there was a case successfully sued against an operator a few years back. Get your divers to sign the releases before the boat leaves the dock, or preferably before they pay, and inspect and confirm there that they are qualified to do the dive. If it's signed while en route, the diver's likely to have paid already, and I guess that weakens the case.

 

[wolf eel]

[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.]

Look at the agreement does it mention depth ? And cert level of diver to the dive site?

[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.

The fact that the DM failed to watch over his clients and how the client is reacting to the dive he would be starting to put himself in neglegent position.

[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?]

Yes if it could be proved that the diver was taken deeper without his consent. Again did he agree to the dive profile, was he made aware the dive was to 100' ? If not he went beyond his/her depth. DM at that point should have been paying more attention to that client. And looking for signs of diress.

[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?]

If you agree to risk then it is your own fault.

Would it win ? Where is the case ? And can anybody prove that the diver did not agree to that depth or mentioned that he had only ever dove to 60' and was confortable to that depth only. I can understand how someone may go beyond their own ability with peer pressure and trust that he would be looked after by the DM and the DM failed that person. I believe if you are going to take the responsiblilty of another as a guide you are doing just that being responsible for that person fully. And if you are not willing to do whatever it takes then find a desk job. Everybody wants to go past there ability and it is up to guides to reconize that and not allow that to happen. You can do anything you want but after you pay somebody they become responsibal to you. I think anyhow.
Cheers
:sunny Derek.

 

[wolf eel]

[huh? Maybe I'm missing something important here...Where is the duress? And how does this flow with the original question?]

Duress comes in many forms and peer pressure is a big one. Money and loads of other reasons create duress.

[And the DM isn't there to assure that the divers gets back alive are they? I thought the DM was there to give a tour to already qualified people...folks that have independantly assessed their own condition and qualification to dive, and who have accepted the risks.]

A guide is to make sure you are safe they are excepting all risk. The guide is there to make sure all is well. In extreme sports the guides takes on a different role then a tour guide to see a train station.

Cheers
:sunny Derek

 

[Wijbrandus]

How many divers are put in this position (right or wrong)?

Diver Joe talks his wife into going on a Cozumel dive vacation. Both are rookie OW divers. He spends a lot of money setting up the trip and prepays all the diving.

They get on the boat, and the boat is going to Devil's Throat. I'd say that's way beyond OW status. The boat wait's until they are at sea to decide the dive, and that's what's brought up and picked by majority rules.

Diver Joe thinks, what the hell?? I'm not doing that dive. Then his wife starts in about how we've wasted all this money, and why didn't you look into this before we went and figure it all out.

The other divers just look on in some sort of sick amusement, and finally everyone including Diver Joe and his wife do the dive.

Regardless of anyone getting hurt, doesn't this sound like a common situation for new divers?

What liability is there for a boat operator to make your decision for you? None. You've got to stand firm and make your own choices. My wife and I have called dives because the circumstances were beyond our experience and desires. Sure, it's a bit of money down the drain, but not that much even for a full day of diving.

Ask questions, and don't blame the boat if they use a majority rules thing. Find a boat with a set schedule to dive with, and you'll never be disappointed (if you can find one that is.)

 

[dweeb]

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.

They may take chances that would ruin your life if it were you, but a lot of people who don't have a non-diving day job have no assets and are unrecoverable. There's more than one way to CYA.