Suit filed in case of "Girl dead, boy injured at Glacier National Park

[boulderjohn]

So here is what I believe will be the essence of the defense.

On the fateful day, our instructor was performing an instructional dive as a part of the training for students in a Drysuit Specialty class. During that instructional dive, they were joined by several other divers who were diving for personal pleasure and not under supervision of the instructor. One of them had enrolled in the Advanced Open Water course, but she had not started the course yet and had come along to do a personal dive for her own experience. She had recently purchased a drysuit from someone with no connection to the dive shop or the instructor. This drysuit did not have an inflation hose, but the diver decided to use it anyway. At some point she lost buoyancy control, dropped to a depth deeper than the rest of the divers, and drowned.​

 

[kelemvor]

This thread started in A&I but was split off and moved to the diving litigation forum.

D'Oh! Thanks for the heads up. I was getting pretty annoyed with how everyone was talking about legal stuff that didn't really pertain to the accident its-self.

Hopefully there's an ignore thread feature I can find somewhere.

 

[boulderjohn]

Hopefully there's an ignore thread feature I can find somewhere.

Upper right. "Unwatch thread"

 

[kelemvor]

Upper right. "Unwatch thread"

I did that, but still got a notification of your reply here just now. I think I'll just have to "manually" ignore it for a while.

 

[Esprise Me]

I did that, but still got a notification of your reply here just now. I think I'll just have to "manually" ignore it for a while.

You got a notification because he quoted you (and you are probably getting another one because I'm quoting you now), but unwatching should stop you from getting updates when someone posts in this thread without quoting you.

 

[KevinNM]

Right. It is still confusing.
If a student of mine finished Tec 45 and then goes out on a weekend on his or her own and does a bunch of dives of any kind, is that student my responsibility during those dives?

Have you provided guidance as to what sort of dives they should be doing and what they should not be doing? Have you evaluated whether they are capable of doing the dives that are expected based on your personal observation and have you provided guidance to them based on your evaluation of their skill and capability? Are you in the water with your student? Are they paying you to dive with them?

If they are paying you and you are in the water with them then yes, I think they are your responsibility. This is why instructors with large classes of not highly skilled students and no certified assistants have a portion wait outside the water. They can only maintain effective observation of and ability to rescue a few students at one time.

If after TEC 45 you suggest they go an practice using their new skills diving in Eagles Nest ballroom then I think you might also have an issue if something bad happened.

Other than that I suspect it's 'well, It depends'.

 

[KevinNM]

I am not an attorney, but it is my understanding that both sides seek out a jury that knows as little as possible about this sort of thing so that their decisions are based on what they experience in court.

If I were the plaintiff I think I'd be happy to have a bunch of tec divers and GUE instructors on the jury. I think the defendant might have a different idea of the ideal jury...

 

[boulderjohn]

Have you provided guidance as to what sort of dives they should be doing and what they should not be doing? Have you evaluated whether they are capable of doing the dives that are expected based on your personal observation and have you provided guidance to them based on your evaluation of their skill and capability? Are you in the water with your student? Are they paying you to dive with them?

To answer your questions....

• In some cases, I might tell students they need to work on some skill or other (say, frog kicking or valve drills) on their own before returning to take the next dive with me.
• If they have completed a certification level and are preparing for the next one, the fact that I certified them tells them and the limits of that certification tell them what they are capable of doing.
• Their knowledge of what comes next (they have it all) tells them what to work on.
• If I am in the water with a different student in a different class at the same time as them, then they are on their own. If I am working with them on skills for their class, then I am instructing. The course requirements list a specific number of dives that must be accomplished, but what matters is skill performance, so it may take several dives with me to achieve standards. If I am with them working no hose for a dive, then it is an instructional dive.
• If they are paying me for a dive, of course it is an instructional dive.

 

[Ayisha]

...One of them had enrolled in the Advanced Open Water course, but she had not started the course yet and had come along to do a personal dive for her own experience...

Except that the email trail shows that the fatal dive was planned as her AOW course dive.

...She had recently purchased a drysuit from someone with no connection to the dive shop or the instructor...

Except that Snow or Liston provided the contact information for Potter for two students to buy drysuits from Potter. There is at least one living witness to that facilitation on the plaintiff's side. Snow also emailed and asked if Linnea had gotten the drysuit.

The plaintiff is also alleging that since the shop rented the regulators that could not be connected to the drysuit, they are also culpable.

...At some point she lost buoyancy control, dropped to a depth deeper than the rest of the divers, and drowned.

That was the shop's original story, except that the video apparently shows that to not be true.

The instructor also posted on FB that she was 4 feet above the victim and couldn't get to her because she couldn't clear her ears, and in that time, the victim drowned. There goes that theory, not to mention witnesses on shore who may have heard Bob come out of the water eventually followed by Snow, and tell Snow that Linnea had drowned, unbeknownst to Snow.

 

[MrVegas]

The magnitude of the tragedy here is unimaginable. As this forum is “dive litigation,” though, it is probably worth pointing out that the allegations of fact in the complaint are allegations, and it will likely still be some time before we know which facts the defendants will dispute or whether there are other relevant facts. The governing law of the state may also have things to say about assumption of risk for inherently dangerous activities, the effectiveness of liability waivers, and contributory negligence. It could be a year or more before the case concludes, and if it settles, we might not know much more than we know now.

Again, since the purpose is to discuss litigation, I would just cautiously propose the following hypothetical for discussion with the caveat that this is no way is meant to represent the facts of the specific case -- I don't know anything other than having read the complaint. This also does not necessarily indicate my personal views. This is only a hypothetical presenting an imagined legally competent certified adult diver facing some decision points.

Hypothetical:

Legally competent adult OW certified diver has only 1 post-certification dive 2 years ago. Legally competent adult diver decides to do AOW class in cold, challenging conditions. Legally competent adult diver signs waiver releasing instructor\dive shop\certifying agency from liability for negligence. Legally competent adult diver buys own drysuit from private party. Legally competent adult diver makes conscious decision to dive drysuit without inflator hose. Legally competent adult diver makes conscious decision to dive without ditchable weight. After experiencing discomfort at 15 feet in drysuit without inflator hose, legally competent adult diver makes conscious decision to do second dive to 60 feet. Legally competent adult diver makes conscious decision to enter darkening water near sunset without dive light.

Even assuming alleged bad advice from instructors at multiple junctures, in this hypothetical, legally competent adult diver had many decision points that arguably could have given any certified diver pause, which would likely be emphasized by the defense if the hypothetical situation resulted in litigation. What risks did the legally competent adult diver knowingly accept? If the hypothetical instructors only committed simple negligence, is the liability waiver effective? Also, which portions of the AOW e-learning or book did the hypothetical legally competent adult diver complete, and what warnings would that learning have provided about such situations?

PADI standards may well inform what the applicable standard of care should be, but they are not law.