Training agency throws Instructor under the bus while misleading the court

[boulderjohn]

Is this be the case that triggered this addition on all the PADI Release forms?

No, that was a different case. That one is very interesting for a different reason.

 

[flots am]

So, how would you feel if you followed standards (or at least there were no allegations you did not), there was an accident and your agency immediately kicked you out with no process.

That's their right.

and tried to destroy your reputation at DEMA and other events because the accident involved a kid and was pretty high profile

That's time to start suing.

---------- Post added August 26th, 2014 at 09:43 PM ----------

I further understand and agree on behalf of myself, my heirs and my estate that in the event of an injury or death during this activity, neither I nor my estate shall seek to hold PADI liable for the
actions, inactions or negligence of __________________________________________________ __________ and/or the instructors and divemasters associated with the activity.

That's good in case you run out of toilet paper and it's not printed on anything too scratchy.

 

[Wookie]

The big release change is to release your heirs for them? That's the dumbest thing I've ever seen. A stupid clause like that may get the entire release thrown out as unenforceable

 

[boulderjohn]

I am confused about one point. On page #49, we seem to get the gist of what the dive operator is claiming as their defense for the death of student. It seems that the operator is claiming that they are not at fault for the death, but PADI's course is instead responsible:

it does not tell you how to make a safe ascent. It does not tell you how to stay on the surface. It does not tell you to drop your weights and maintain your buoyancy. None of this information is given to the participants. The instructors are not allowed to deviate from that.

Help me with this. Are they really claiming that in teaching the Discover Scuba class, the reason that the deceased died is that they as instructors were not allowed by the standards of the course to teach the student how to ascend, stay on the surface, etc.? Are they saying that the standards prevented them from maintaining proper supervision?

 

[Huzzar]

One interesting point to me is the Boy Scouts of America wanted to remain in litigation with the instructor and his dive shop over breach of contract for not buying insurance. So, my question is, if the instructor/shop had proper liability insurance wouldn't the family have received payment and this would all be over by now?

 

[cerich]

Help me with this. Are they really claiming that in teaching the Discover Scuba class, the reason that the deceased died is that they as instructors were not allowed by the standards of the course to teach the student how to ascend, stay on the surface, etc.? Are they saying that the standards prevented them from maintaining proper supervision?

Padi wants instructors to teach the skills in standards, to teach beyond that is in fact a standards violation.

Can you please explain how it is possible to maintain "proper" supervision when teaching a DSD to ratio and one students bolts to the surface? Do you leave the student that bolted alone on the surface or the students that didn't underwater? Do you prevent the bolting student from reaching the surface? If yes did you commit manslaughter if he/she drowns?

It is a reasonable to expect a student to bolt on a DSD, it is common. It is unreasonable to have standards that when dealing with the common and likely make you in violation of said standards. You are being set up to fail, or more likely IMHO set up to take the fall.

---------- Post added August 26th, 2014 at 11:19 PM ----------

The family has gotten $800,000 so far. It isn't over because PADI did not tie the settlement to anybody but themselves..then to put icing on the cake they didn't disclose it properly either and mislead the other defendants and the court...

 

[Dr. Lecter]

So basically, all the lawyers (and judges who are also lawyers) were laughing all the way to the bank. Despicable.

Unless you read a different hearing transcript than I did, you seem confused.

---------- Post added August 26th, 2014 at 09:45 PM ----------

The family has gotten $800,000 so far. It isn't over because PADI did not tie the settlement to anybody but themselves..then to put icing on the cake they didn't disclose it properly either and mislead the other defendants and the court...

To be fair, the Court wasn't objecting to what they were trying to do and acknowledged that they had case law supporting their claim that what they were trying to do it wasn't bad faith. The Court just said they read those cases wrong by thinking it allowed them to settle all claims against a defendant and then file an amended pleading making claims against that same defendant. The $2000 fine reflects a lack of outrage because of relatively innocent (if stupid as to first principles) behavior while reinforcing the importance of candor and thinking about what you're actually doing when you file a pleading.

If plaintiffs and PADI had just settled all claims between each other and gone forward on the complaint that was filed before the settlement, they could have told nobody right up until trial in an effort to let PADI defend its standards and minimize any finding of fault as to it. The Blue Water defendants also pull a bit of a slippery trick by saying they want the amended pleading struck as part of the sanction rather than just having its baseless claims against PADI dismissed--because if it had stood, Blue Water would be stuck with PADI as a cross-claim defendant and thus having the right to defend itself as a party.

PADI was stupid to pull this stunt rather than getting a global settlement, and its lawyers got gently rebuked by a judge who told them he understood what they wanted to do and maybe would let them do it some way…but not by asserting claims in a new pleading after settling them. However, Blue Water has used legal rules to its advantage to prevent PADI from being a party to a case in which a lot of fingers will be pointed at PADI. Good on Concannon as a lawyer, but as a matter of justice and getting a full airing of all the arguments in the case? Not sure why everyone's jerking each other off at this point.

 

[cerich]

I'm guessing here but I think the last thing PADI wants is to have to defend the standards, they allude to more cases out there they are all engaged in, if PADI had to defend their standards and lost this one, they would end up losing them all and possibly paying punitive amounts. Instead they settle.

Unless you read a different hearing transcript than I did, you seem confused.

---------- Post added August 26th, 2014 at 09:45 PM ----------



To be fair, the Court wasn't objecting to what they were trying to do and acknowledged that they had case law supporting their claim that what they were trying to do it wasn't bad faith. The Court just said they read those cases wrong by thinking it allowed them to settle all claims against a defendant and then file an amended pleading making claims against that same defendant. The $2000 fine reflects a lack of outrage because of relatively innocent (if stupid as to first principles) behavior while reinforcing the importance of candor and thinking about what you're actually doing when you file a pleading.

If plaintiffs and PADI had just settled all claims between each other and gone forward on the complaint that was filed before the settlement, they could have told nobody right up until trial in an effort to let PADI defend its standards and minimize any finding of fault as to it. The Blue Water defendants also pull a bit of a slippery trick by saying they want the amended pleading struck as part of the sanction rather than just having its baseless claims against PADI dismissed--because if it had stood, Blue Water would be stuck with PADI as a cross-claim defendant and thus having the right to defend itself as a party.

PADI was stupid to pull this stunt rather than getting a global settlement, and its lawyers got gently rebuked by a judge who told them he understood what they wanted to do and maybe would let them do it some way…but not by asserting claims in a new pleading after settling them. However, Blue Water has used legal rules to its advantage to prevent PADI from being a party to a case in which a lot of fingers will be pointed at PADI. Good on Concannon as a lawyer, but as a matter of justice and getting a full airing of all the arguments in the case? Not sure why everyone's jerking each other off at this point.

 

[drrich2]

Padi wants instructors to teach the skills in standards, to teach beyond that is in fact a standards violation.

Are you making this claim specific to the Discover Scuba Diving course?

I ask because in other threads hotly debating the quality of the PADI basic OW course, it's been claimed that PADI instructors can add content to a course, but cannot hold mastery of it as a requirement for certification. Perhaps the DSD course is regulated differently?

Richard.

 

[Dr. Lecter]

I'm guessing here but I think the last thing PADI wants is to have to defend the standards, they allude to more cases out there they are all engaged in, if PADI had to defend their standards and lost this one, they would end up losing them all and possibly paying punitive amounts. Instead they settle.

I agree they have no interest in setting a precedent by actually losing (hence the settlement), but they do want to show up and argue who's at fault. Remember that whether PADI settled or not, if the case goes forwards a jury will decide who's at fault out of everyone involved--PADI included. The result will just be that PADI won't have to pay up if the jury says PADI was 80% liable for plaintiff's death and LDS was 20% liable. I'm not well-versed enough in the law of that circuit/state to say for sure whether LDS would only be on the hook for 20% in that case or if they're jointly liable for the full judgment.

But either way, an empty chair, as alluded to in the hearing transcript, allows the remaining defendant(s) sit back, point the finger at PADI standards as the cause of plaintiff's harm, and have the jury return a comparative fault finding labeling PADI the main (or even sole) source of negligence. Not good for PADI, settled out or not.