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

[SlugLife]

(disclaimer, I started on page-90 of comments)

The Dive Makai defendants were negligent in not assigning a "buddy" for Tancredi. The evidence indicated that it is a breach of the standard of care in the recreational dive industry for a dive charter company to conduct a dive without assigning "buddy" teams. A "buddy" assumes the responsibility for monitoring and assisting the other member of the "buddy" team at all times during a dive. The court finds that it is probable that an assigned "buddy" would have assisted Tancredi by giving Tancredi additional air when he first indicated breathing difficulty and would have helped Tancredi to the surface at a time when his life could have been saved.

Interesting. As an operator, i would never consider assigning a buddy. This goes directly Rasmussen v Bendotti, above.

INAL. You have to be careful drawing precedent from a single court-case, where we didn't watch the whole thing, or know all the facts presented. It's possible the defendants didn't have appropriate convincing expert-witnesses or solid council.

That said:

• I'm not on board with the idea that the dive-op should be obligated to assign a buddy, even if it is common practice. Although I kinda get it.
• The idea that a buddy assumes responsibility seems shockingly absurd to me.
  • A dive-buddy provides some redundancy, but that's about it. The vast majority of random divers have no dive-rescue certification, knowledge, or obligation. Furthermore, aiding a panicked diver can be very risky.
  • The idea that a dive-buddy is responsible is a logical contradiction. Lets think this through: Dive-buddy-A is responsible for Dive-buddy-B. Diver-B is responsible for Diver-A. If Diver-A runs out of air, who is liable and responsible? Well, Diver B according to this (stupid) standard. Not so fast! You see, Diver A ran out of air, and therefore cannot rescue or assist Diver B.
• If I'm liable for my dive-buddy, I'll happily stick to solo-diving, unless I know the other diver well.
  • It's a similar scenario to why almost nobody helps victims of theft, rape, assault, etc. There's just WAY too much liability, even if you were 100% in the right to assist the person from a moral, ethical, and logical perspective.

So as a rando diver, I can show up at a cattle boat and be assigned an instabuddy, and suddenly I’m burdened with some legal responsibility for their conduct underwater?! That’s heavy. I’ll try and keep them in sight but I can’t really control what they do.

I don't mind helping people, but I'm not there to save someone from themselves, much less do so unpaid.

In a truly frightening case, the most senior diver in a dive group in Malta was charged (IIRC for murder) for failing to provide an effective rescue for 2 members of his group who were determined to have died from immersion pulmonary edema. (He did try to rescue them.) He was a certified instructor, but there was no instruction involved--he was selected for prosecution as the most qualified member of the group. It was also charged that as the most qualified member of the group, he should have decided that conditions were too difficult for the group and called the dive off. Charges were eventually dropped.

That's nuts. He was just another customer on a dive-charter, who happened to be an instructor? Good thing the charges were dropped, but even dropped charges come with hefty legal expenses.

I’m happy to declare to the dive op I’m an advanced instructor, the few times I’ve been asked to ‘help out’ I inform them my rate is US$2,500 per dive. Not been taken up on it yet.

Smart man. You can almost never go wrong with "Fk you pay me" mindset.

Slightly related. I recently turned down a instructor job where they said they could keep me very busy. My reason, they insisted I teach and encourage the purchase and use of air 2. I responded with that is the only piece of equipment I consider unsafe in real world potential applications I will use one much less teach in one. They said mandatory, I said thank you for your time nothing against you guys a a shop or people but I won't do it.

Yikes! I mean, people can train and practice to mostly overcome the limitations, but I agree it's unsafe.

The other unsafe thing to add to the list is Spare Air's (1.7cu and 3cu), which are probably far more dangerous than nothing at all due to a false sense of security. A 6cu bottle should probably be considered a CESA device. (I speak from experience, having owned all the above and acquired them dirt cheap)

 

[CuzzA]

Despite being off topic, I haven't heard of an Air2 killing a diver, ever. But I'd love to read about it.

 

[MrVegas]

that said- PADI also has a vested interest in protecting its “agency” liability policies- so they may indeed look to go further along in the pre-trial process while developing a record through discovery and depositions to move again to dismiss either pre-trial or post plaintiff case-in-chief. They also are likely developing an appellate record now, to argue the “agency” legal theory.

I can't read the summary judgment decision -- the link doesn't work for me. I definitely agree with this, though. If PADI is potentially looking at being liable for negligent actions of all of the instructors it certifies, wouldn't that result in higher insurance for PADI, more extensive oversight of instructors and dive shops, etc.? Some may say that is a good thing -- but ultimately those costs will be paid by divers and instructors.

Did the decision say anything about the effectiveness of the negligence waiver? These usually release the certifying agency also, don't they.

 

[formernuke]

Did the decision say anything about the effectiveness of the negligence waiver? These usually release the certifying agency also, don't they.

Negligence waivers don't release anyone from actual negligence they at most fulfull duty to warn

 

[SlugLife]

I can't read the summary judgment decision -- the link doesn't work for me. I definitely agree with this, though. If PADI is potentially looking at being liable for negligent actions of all of the instructors it certifies, wouldn't that result in higher insurance for PADI, more extensive oversight of instructors and dive shops, etc.? Some may say that is a good thing -- but ultimately those costs will be paid by divers and instructors.

Did the decision say anything about the effectiveness of the negligence waiver? These usually release the certifying agency also, don't they.

(Setting my aside personal opinions of PADI.)

Liability (on the basis of certifying an instructor) doesn't necessarily improve quality, but rather can often incentivize bureaucracy. The instruction wouldn't necessarily improve, but rather teachers and students would have to full out more checkboxes, and probably have to sign additional forms to insulate from liability.

 

[Omisson]

I can't read the summary judgment decision -- the link doesn't work for me. I definitely agree with this, though. If PADI is potentially looking at being liable for negligent actions of all of the instructors it certifies, wouldn't that result in higher insurance for PADI, more extensive oversight of instructors and dive shops, etc.? Some may say that is a good thing -- but ultimately those costs will be paid by divers and instructors.

Did the decision say anything about the effectiveness of the negligence waiver? These usually release the certifying agency also, don't they.

The judge actually split the issue- finding past federal precedent that PADI instructors are not agents is not applicable because it is 1) a different state than that federal precedent and 2) there are different facts here (although there are actually no “facts” developed yet- just pleadings and affidavits- formal discovery doesn’t seem to have been undertaken yet.

In its decision the Court held the issue of agency is a “fact issue” to be developed through discovery and possibly trial. It could not rule on an undeveloped record…

It would be bad if there is agency found despite the waivers and the current industry norms…. Such a finding would then create liability for the whole scuba industry - and divers will be screwed because every instructor who breaks standards still ropes in the agency for liability Will cause prices to skyrocket.

 

[Wookie]

The judge actually split the issue- finding past federal precedent that PADI instructors are not agents is not applicable because it is 1) a different state than that federal precedent and 2) there are different facts here (although there are actually no “facts” developed yet- just pleadings and affidavits- formal discovery doesn’t seem to have been undertaken yet.

In its decision the Court held the issue of agency is a “fact issue” to be developed through discovery and possibly trial. It could not rule on an undeveloped record…

It would be bad if there is agency found despite the waivers and the current industry norms…. Such a finding would then create liability for the whole scuba industry - and divers will be screwed because every instructor who breaks standards still ropes in the agency for liability Will cause prices to skyrocket.

It seems to me that this whole PADI as a agency issue is strictly based on a previous Montana ruling, and wouldn’t hold everywhere. There is an article in the Missoulian that speaks to this.

 

[MrVegas]

formal discovery doesn’t seem to have been undertaken yet.

In its decision the Court held the issue of agency is a “fact issue” to be developed through discovery and possibly trial. It could not rule on an undeveloped record…

Interesting. Does the "fact issue" concern (1) PADI's relationship with dive instructors and shops generally, or (2) is the judge saying that the agency relationship depends on the facts of each specific case?

Thanks. I suppose I'll have to get the decision and read it for myself. Interesting implications here. If it is only going to be Montana-specific, then I could see certifying agencies just trying to carve out some sort of exclusion and not certify divers or instructors for diving in Montana. Obviously, that would be a disaster for someplace like Florida, though.

 

[boulderjohn]

It would be bad if there is agency found despite the waivers and the current industry norms…. Such a finding would then create liability for the whole scuba industry - and divers will be screwed because every instructor who breaks standards still ropes in the agency for liability Will cause prices to skyrocket.

I have always thought of this "be careful what you wish for" situation for the PADI haters on this thread who are visibly excited that PADI may be held liable because they don't like PADI, not because they really think they are liable. Any precedent set will apply to all agencies, not just PADI.

I say this from the perspective of a career in education. The amount of money school districts put into a teacher supervision and evaluation system is enormous, and we still have crappy teachers in nearly every school in the country, despite the fact that the evaluator is in the same building as that crappy teacher every day. You cannot expect a scuba agency--any agency--to be in full control over every action of every instructor they certify in the world, especially when they cannot control the actual day-to-day conditions of employment. If the precedent is that the agency will always be accountable whenever an instructor screws up, I don't believe it will result in an attempt to do a better job of overseeing instruction, because the ultimate goal of that is impossible to reach. I think that the opposite is more likely to occur--a withdrawal from responsibility for instructor actions, meaning no quality control once certification happens.

 

[Wookie]

have always thought of this "be careful what you wish for" situation for the PADI haters on this thread who are visibly excited that PADI may be held liable because they don't like PADI, not because they really think they are liable. Any precedent set will apply to all agencies, not just PADI.

Do you really, deep down in your heart of hearts, think that training agencies add value to the “industry”?

I find them to be publishing companies, insurance clubs, and handy advertising. But they protect bad shops and bad instructors, and give prospective and actual students a false sense of safety with the whole “agents” argument. It is my belief that agencies will allow you to believe that they closely oversee shops and instructors, and require close adherence to “standards”, but in reality, they don’t get involved until a fatality happens.

I’m not sure how secondary and higher education works, but in nuclear power the operator is actually trained to a programs with standards set by a regulatory agency, and then tested to determine their level of knowledge, then randomly tested throughout their career.

Recreational diving is not nuclear power. But I am of the opinion that scuba training agencies never publicly advertise that they disavow the whole agency argument.

I haven’t opened an open water manual in 15 years. Does it proclaim in the forward or in chapter one that (whatever training agency) is really a publisher of books and trainer of instructors and that standards are only enforced when an accident happens?