Question for any lawyers

[Ian T]

A factor not mentioned is the dive site. If you're doing a dive where the bottom is at 20+msw with nothing in between but that wet stuff, then the dive op/dm would probably be considered negligent, ie "making" an OWdiver do a dive outside his/her limits.
If you have a dive sloping to 20+msw, then it's up to each dive pair to plan their dive, no? The brief hopefully gives you all the info you need to make a plan.
Like MikeF said; a DM would bring certified divers only, right? Which also means that they shouldn't need to do a trust-me nor have a babysitter-dm.

 

[opiniongirl]

Thanks to everyone (especially the lawyers - real and "armchair") and a very interesting debate..

The reason I oppose the line of thinking that, "I'm not here to babysit" is that it's not defensive teaching / guiding. I see many DM's taking massive legal risk by guiding deeper than supposed to, going beyond the level of the diver, etc.

I AGREE that, in principal, divers are responsible for their own safety, planning, conduct. BUT, we are still held out as the professionals, and must act in the same manner "a reasonably prudent" expert would. Which means, whether we like it or not, a litigious client is going to sue us, and any deviation from our member organizations standards is going to put us on the HOOK! Why take the legal risk? Why go deeper - anything, anything happens and you're screwed.

Perhaps i'm still "healing", but I was under the impression that my member organization would help me out and support the "good side" of an incident - I followed the standards to the letter...and then I found out that this organization will protect themselves first (of course) but the next in line was the LDS.

And what is there to protect the student? You can't have the expectation that student's are going to have the level of knowledge and judgement as an expert. That doesn't mean carte blanche, but how many of you have shaken your head seeing a student be trained in an unprofessional manner?

What about the individual posted on this board who was allowed to dive during a course without an alternate air source? While most of us immediately recognize "major red flag" that the instructor was a moron, this individual doesn't have the experience to recognize that this is a major signal to RUN - no matter how much you think he's/she's a great guy? In my case, my students were exposed to contaminated air - how the heck is the average student going to protect themselves from this danger? And now she's got chronic lung problems, so do I....

I think more instructors need to better protect themselves legally, which will inevitably protect the consumer.

 

[padiscubapro]

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?

Not every agency has a 60ft limit on OW divers.

 

[opiniongirl]

Yes, thank you..but in this example the diver was certified to 60 feet.

 

[Diver Denny]

... In my case, my students were exposed to contaminated air - how the heck is the average student going to protect themselves from this danger? And now she's got chronic lung problems, so do I....

The hypothetical example you gave in your original post and the unfortunate incident with the contaminated air are not the same.

I think an apt anology would be this: Let's say I am a new driver and I go buy a car. If I take it on the highway at speeds beyond my ability to drive safely and end up in a car accident, is the dealership responsible? I don't think so. However, if while driving the brakes fail and I wind up crashing, is the dealship responsible? Probably yes.

By the same token, I would expect a DM to be knowledgable about the planned dive. A responsible DM would explain the dive plan, potential dangers and probably advise on skills/experience level required. The decision to dive it is ultimately mine and therefore I accept the risks.

However, things like equipment defects and contaminated air are a completely different story. The LDS has an obligation to provide air fills safe for diving. I read an interesting article recently on the topic of air quality from dive shops (when I find the magazine it came from I'll post the reference). As you would expect, there are quality standards that the air is required to meet. The point of the article was to smell the air before diving, if it smells funny, don't use it.

Sorry to hear about you and your student's lung problems. I hope whatever damage that was caused will heal over time.

 

[opiniongirl]

The hypothetical example you gave in your original post and the unfortunate incident with the contaminated air are not the same.

I think an apt anology would be this: Let's say I am a new driver and I go buy a car. If I take it on the highway at speeds beyond my ability to drive safely and end up in a car accident, is the dealership responsible? I don't think so. However, if while driving the brakes fail and I wind up crashing, is the dealship responsible? Probably yes.

By the same token, I would expect a DM to be knowledgable about the planned dive. A responsible DM would explain the dive plan, potential dangers and probably advise on skills/experience level required. The decision to dive it is ultimately mine and therefore I accept the risks.

However, things like equipment defects and contaminated air are a completely different story. The LDS has an obligation to provide air fills safe for diving. I read an interesting article recently on the topic of air quality from dive shops (when I find the magazine it came from I'll post the reference). As you would expect, there are quality standards that the air is required to meet. The point of the article was to smell the air before diving, if it smells funny, don't use it.

Sorry to hear about you and your student's lung problems. I hope whatever damage that was caused will heal over time.

Thanks for your post.

I understand and agree that divers are responsible for themselves - I just don't think professionals consider legal risk enough. Duty of care and fiduciary duty are grey when dealing with certified divers - and even greyer when being interpreted by a non-diving judge. Unfortunately, I've seen instructors and dm's who've been through this, and even though you do everything right, it is not a nice experience. I can't imagine how stressful it would be if one wasn't conservative. I've also seen the other side where students have been injured through gross negligence, and the parties involved should've sued.

As for the contaminated air - unfortunately, CO has no smell or taste. We have been advised by our member organization that the standards and explanations for this hazard will be in the next revision - January.

 

[Diver0001]

What would be the chances for a successful lawsuit?

Well I'm not a lawyer but it seems to me that for the liability suit to succeed you'd need to show a causal relationship between the breach of duty of care and the physical injury.... My gut feeling is that a good lawyer would be able to hang both the operator and the DM in your scenario. A slightly better lawyer could get them both off, at least where a jury is involved.

R..