Question for any lawyers

[dweeb]

In my eyes, they're nearly judgment proof and I'd put out thousands in legal fees before actually discovering that.

Most such suits are done on a contigency basis.

 

[scubasean]

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

I guess we can disagree on this...especially when you use that word "all"...heh

The DM doesn't ck your current health, the status of your equipment, whether you've been drunk in the past 24 hours, whether you've eaten breakfast, whether you're a big risk taker, etc.

The DM isn't there to guarantee you will come back alive, but more to ensure that you see nice things, IMHO.

If you believe that the DM is accepting "all" risk, there is no reason to have you (personally...) sign the waiver...unless you believe the waiver applies to the crew minus the DM.

 

[diverbrian]

I really don't believe in the "plastic card" theory of a diver's limits. I know of at least one OW with well over 200 dives. She is as competent as many instructors and may be a little upset if you told her that she couldn't do a 100 ft. when she has done more than one already.

I know of divers with advanced cards that seemingly got them out of a crackerjack box. I guarantee you that I know which one that I would have my eye on if I were divemastering from a risk management standpoint.

As to whether waivers are enforceable...

As Chris Murley's family about that. When an instructor takes an immensely overweight and recently diagnosed diabetic diver to do tri-mix check-outs on the Andrea Doria, this may set off warning bells. There are many charter captains and dive instructors that I know of that would NOT do this regardless of plastic cards. But, the court did the right thing (in my view) from a legal standpoint in ruling that the waivers were enforceable.

Oh, and from what I understand about the lawsuit environment in Canada, I wouldn't waste my time suing for anything that happens there. To my understanding they have very effective limits on lawsuits in that country.

 

[wolf eel]

[I guess we can disagree on this...especially when you use that word "all"...heh]

Your right ! All is the wrong word. What I ment by all was the diving end of things only. Yes if the person was a drunk and they look a little tired you have no way of knowing and if they get bent how could that be your fault.

[the status of your equipment,]

I think you need to look at the gear in front of you and decied if it looks like it is in good condition that would be a normal buddy check. But you have to be more of a guide and do better and check this out and make sure it will or at least should not fail.

[The DM isn't there to guarantee you will come back alive, but more to ensure that you see nice things, IMHO.]

Not guarantee but give you the best chance at it. I am one of those who would and have put it all on the line just to keep a client alive (climbing) that is your job discription as a guide.

[If you believe that the DM is accepting "all" risk, there is no reason to have you (personally...) sign the waiver...unless you believe the waiver applies to the crew minus the DM.]

The waiver is for the other problems weather your health as far as I am concerned the waiver is a way for bad operators to get away with doing harm for the all mighty dollar.
It also protects you from the people who are ready to dive to that site but have trouble then sue because they made a mistake not the guide or company. Health is the biggest issue and we as guides can not guess if that persons health is good or not or the mental state and so on. I must say if you are asking all the questions and you are told everything and it is beyond what you have ever done before and you choose to go then anything that happens past that point is up to you.

Cheers
:sunny Derek

 

[wolf eel]

[Oh, and from what I understand about the lawsuit environment in Canada, I wouldn't waste my time suing for anything that happens there. To my understanding they have very effective limits on lawsuits in that country]

We do have limits. But I know a woman who was on a chair lift at a ski hill that failed and was awarded 14 mil so its not all that bad. And my brothers chidren have been taken care of also. So I would sudjest if you get injured here make sure you have done everything right and if so sue.

As for the Andria Doria the diver had all the qualifications to do the dive but he had speacial needs. That is not the same his health was the chance not the experience it was a chance he took and the instructor. But his family should not have tried to blame anybody but himself. Are you saying that if you are a parapelegic that you should not dive as you may need assitance ?

Cheers
Derek

 

[WJL]

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...)

The answer from a lawyer who handles this type of case is: Walter is right. There aren't enough facts in your hypthetical to give any definitive answer. Just for example, the exact terms of the "liability agreement" must be analyzed. And it would depend on which jurisdiction's laws applied as to what effect those terms would have. And after that, the answer would still be uncertain.

 

[diverbrian]

We do have limits. But I know a woman who was on a chair lift at a ski hill that failed and was awarded 14 mil so its not all that bad. And my brothers chidren have been taken care of also. So I would sudjest if you get injured here make sure you have done everything right and if so sue.

As for the Andria Doria the diver had all the qualifications to do the dive but he had speacial needs. That is not the same his health was the chance not the experience it was a chance he took and the instructor. But his family should not have tried to blame anybody but himself. Are you saying that if you are a parapelegic that you should not dive as you may need assitance ?

Cheers
Derek

Every charter captain that I talk to in Canada pretty much lets me know that things are not the same as in the "take no responsibility for yourself" legal environment as in the US. There is always the court ruling that slips through anywhere.

I know a Canadian DM who works with parapelegics and I think that it is great. I also submit that a recently diagnosed diabetic with all of the signs of related problems acting up would not be allowed in the water on many boats. I dive with a diabetic as a regular dive buddy. He handles his own condition very well. By the accounts that I have read, Murley was still learning how to manage his condition. Excessive fatigue and thirst are just two of the symptoms that accounts refer to. These were observed on the boat for some time prior to the dive. If the condition were controlled (he was meeting the "special needs" that you refer to), there would have been little or no symptoms of a problem on the trip out.

Some of the stuff, common sense tells me that a person isn't in good enough health do something. Most veteran dive operators have more experience than that and their "warning bells" are more acute yet.

I chose an extreme instance for a reason. Dives like the Doria are extreme dives. Most of the participants are carefully vetted to try to keep people alive. Someone in that condition showing signs of illness would not be allowed to do that type of dive by many operations on a risk to their reputations if the participant died. This would be a lot more of a grey area on wrecks like the Sandusky or Montana (intermediate-beginning wrecks that I dive frequently about 50-75 ft in cold water), which don't involve near the danger.

 

[wolf eel]

[Every charter captain that I talk to in Canada pretty much lets me know that things are not the same as in the "take no responsibility for yourself" legal environment as in the US. There is always the court ruling that slips through anywhere.]

Yes they are going to tell you this so would I !!! That is why I said if you do it right and the company fails you I don't care what you have been told you can sue and if you can prove neglegents on the company then may win. We can not sue like you as responsiblilty stay with YOU more here then state side but to say it is a waste is not true.

[I know a Canadian DM who works with parapelegics and I think that it is great.]

Excellent as there is only a hand full where does he live ?

[recently diagnosed diabetic]

That still falls in the area of personial responsibility did the diver himself feel all is well ? Did the boat operator have more knowledge about diabetics then the person himself ? Was that person cleared by his doctor ?

[By the accounts that I have read, Murley was still learning how to manage his condition. Excessive fatigue and thirst are just two of the symptoms that accounts refer to.]

Did the cap question the person about how they felt ?
On the boats to the Anderia Doria the problems you mentioned are normal as anziety get to people.

[Someone in that condition showing signs of illness would not be allowed to do that type of dive by many operations on a risk to their reputations if the participant died.]

Thats the point if you decied to take the chance with that client then the client knows all risk and you have only yourself to blame.(the client) On any wreck. Or dive. But if you are not. And decied to on the boat at the dive site and jump in the water as everbody eles is then peer pressure is a duress.

Cheers
Derek

 

[Jason B]

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.

well I believe that if you plan on taking yourself into an environment that man was not meant to live in, that you better be fully responsible for yourself, and if you can't take responsibility for yourself, get out of the water and get behind a desk.
Sue, sue, sue. Such cr@p that americans can't take responsibility for their own actions.
jason

 

[wolf eel]

[well I believe that if you plan on taking yourself into an environment that man was not meant to live in, that you better be fully responsible for yourself, and if you can't take responsibility for yourself, get out of the water and get behind a desk.
Sue, sue, sue. Such cr@p that americans can't take responsibility for their own actions.]

I do understand what you are saying. I just feel that you are on your own untill you pay somebody to take you out on their boat at that time they are making money on your life and if they want to make money on you then they should be responsible for you. And if in doing so for go all standards then they should be sued. Being a guide comes with responsibility that some may feel is to much. And at that point should find another job.

Is your law really like that ?

Cheers
Derek
I should have been diving today but do to something of the nature we are talking about I had to see a doctor which sucks. (WCB) negates all law and we can not sue at all.