Any Lawyers out there???

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Norris
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Any Lawyers out there???

Post by Norris » Thu Aug 07, 2014 1:19 pm

So I just had a debate with a friend about something and wanted to get some others take on this, and maybe someone that has the resources to case law?

Scenario -
6 divers all diving together. Broken off into groups of 2 (buddies). So three groups...

2 of these divers are PADI dive masters and help with classes all the time.

One night one diver has a fatal accident.

Family of course wants closure.

As an instructor, or dive master, and this being either your buddy or not, does either hold any responsibility, or could either be held liable for the accident.

It's my position that a card carrying diver is responsible for themselves. I assume if the dive master or instructor takes them beyond their training then that is a different story, but I am just talking a group of people shore diving together.

Thoughts?
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Dashrynn
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Re: Any Lawyers out there???

Post by Dashrynn » Thu Aug 07, 2014 1:39 pm

I have heard from DMs and instructors they can be held responsible even if they aren't being paid for the job, I.e just a friendly dive with random people.

I'm with you though, they shouldn't be sued for non paid friendly dives. The use of lawsuits have become overused in America, IMOO.

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Norris
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Re: Any Lawyers out there???

Post by Norris » Thu Aug 07, 2014 2:00 pm

Yeah DMs and instructors say that, but I am very interested if there is any case law supporting it. I understand that you can sue for just about anything, and a lawyer certainly can take a check from someone and file papers for any lawsuit, but as far as it actually making it in front of a judge and being WON, I am skeptic...
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Jeremy
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Re: Any Lawyers out there???

Post by Jeremy » Thu Aug 07, 2014 2:15 pm

I asked this question during my DM class since I put on fun dives all the time and was wondering if getting the DM card would change anything.

The answer I got was that I most likely would not be liable unless there was gross negligence on my part for some reason. So I can go ahead and continue putting on fun dives as a divemaster and not worry about getting sued.

If I was operating in a professional capacity though, I could be successfully sued.

Those were comments from the instructor not a lawyer though. I'd be very interested if anyone has heard differently.

LCF probably knows for sure.

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Norris
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Re: Any Lawyers out there???

Post by Norris » Thu Aug 07, 2014 2:18 pm

Yeah I would have to agree with what you stated Jeremy, but yes I would LOVE to hear from someone that has some LAW experience.
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Re: Any Lawyers out there???

Post by fmerkel » Thu Aug 07, 2014 2:32 pm

Yes, you absolutely could be sued. Successfully? Probably not.
I suggest you read this whole thread:
viewtopic.php?f=1&t=15580
Read my postings on page #3 carefully. It's not a diving accident, but otherwise it's the same kind of suit.
The defendants won (Mountaineers). The family is looking for another trial. The event was a real tragedy. At this point the family is showing gross stupidity. In these cases I think there is likely far more gross stupidity than gross negligence.

FWIW the Walla Walla case is still pending, and could be pending for a long time. The family has engaged a lawyer that is both a diver and very experienced prosecutor in this area.
They are suing NAUI fer crissake. How successful do you think THAT will be?

On the positive side they need to PROVE [GROSS NEGLIGENCE]. That is very hard to do. But, the process can be lengthy, and extraordinarily difficult, not to mention massively expensive.

If we thought about this too much most of us would give up diving. My wife and I lead a lot of recreational dives for our Club. In addition we've both been Club Presidents. We have been aware that though the probability is exceedingly small we could end up in a suit even though we were at home mowing the lawn. We are not instructors but did take out an Umbrella policy just for this contingency.

BTW-unless you get lawyers that actually work in this area you will get all kinds of answers. There is absolutely no black and white here in terms of outcome. These are civil suits with monetary damages and the jury is 'swayed' by the presentation in the courtroom. I do mean swayed as in persuaded. There will be little to no proof probably of anything, especially as it all occurs underwater out of sight of the world. It was remarkably difficult to figure out what actually happened to cause the sledding accident in spite of multiple witnesses (yes, they can lie and I think that went on here), in broad daylight, at close quarters, in good weather.

This info is from first hand experience as a juror in the sledding accident and extensive conversation with a lawyer that defends outdoors recreational cases.
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Re: Any Lawyers out there???

Post by Norris » Thu Aug 07, 2014 2:54 pm

I appreciate the response and did read the thread. As I stated earlier, I believe you can sue anyone for anything, pretty much.
I appreciate that example but mind you I am speaking about someone that is carrying a card stating they have passed all the requirements to SCUBA dive. I think there is a certain amount of liability taken off the instructors and DMs when that is the case in terms of a random recreational dive. As for a "class" well that is a whole different beast.

If I am a DM and put on Facebook that I am diving at Edmonds and if anyone wants to meet down there and dive with us you are welcome. Then one of the "certified" divers dies, I really don't see how anyone would take suing ME for their loved ones accident.
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Re: Any Lawyers out there???

Post by CaptnJack » Thu Aug 07, 2014 3:06 pm

Don't advertise that you are a DM... Or if you do make it clear that you aren't active and insured so there's no deep pocket to pursue. They are less likely to go after a "non-professional" in the first place. And in the friends diving together scenario the fact that you are a DM is irrelevant to them anyway.
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Re: Any Lawyers out there???

Post by Jeff Pack » Thu Aug 07, 2014 3:18 pm

Well, I'm no lawyer, but had spoken with my legal counsel about a recent situation that occurred and this is what she told me. Those with a higher degree of training, certification, experience, etc can (and typical are) held to a higher standard of liability for their actions (or lack of action). Just something to keep in mind.

The sad reality in the US, is anyone can sue anyone for anything. Whether a judge later tosses it for no grounds is another story.
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Re: Any Lawyers out there???

Post by coulterboy » Thu Aug 07, 2014 11:19 pm

The simple answer is, "yes", you could be sued. And even if you win the lawsuit, you probably are so deep in debt to cover for lawyer's fees, etc. My take on this is, if you planned the dive and advertised the dive openly, and you're at least a DM, whether or not you advertised yourself as a DM ( the court will find out anyway what your cert is), this means that you organized the dive, whether professionally paid or not. If and when an accident happens, whether there is injury or loss of life, the court would always look at the chain of command, and start from there. The court would try every angle in the judicial system to put responsibility to the organizer/advertiser of the event. Questions would arise, such as: Were you aware of everybody's cert level that joined the dive? Did you really discuss a pre-dive briefing and plan for the dive? The court will ask the simplest question that you've learned from your OW class. Now, quadruple the questioning, now that the court knows you're a dive professional (DM, INSTRUCTOR, etc). Nobody wins in a lawsuit. I'm not a lawyer, what I've said is just my personal opinion.

I used to teach martial arts, and had a student (a teenager) who became a black belt rank ( shodan). one day, he was walking down a hiking trail and was mugged by three assailants. Long story short, he put the three guys in the hospital. When it was time to face the court, the judge looked at the 3 guys and said, you guys got what you deserved. Then, he looked at the teenager and said, young man, you did the right thing, but you used more force than what was necessary to stop the threat. The judge then ordered him to pay a big chunk of the three guys medical bill. NOBODY WINS.

Enjoy your dives and be safe out there.
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Re: Any Lawyers out there???

Post by fmerkel » Fri Aug 08, 2014 7:42 am

Some things I observed sitting on the case I was on:
Friends generally don't sue friends in situations like this. So, it's good to have a real relationship with the people that you dive with.
It is upset surviving family that tends to sue. If it's a kid, a suit is almost guaranteed.
People on the jury that understand the limitations of a sport will tend to side with the defense unless shown 'gross negligence' was indeed a factor.
There will be huge amounts of discussion and division in the jury about what 'gross negligence' actually means. The court provides some guidelines at the end of the trial but before deliberation but they are only of modest help.
People that don't understand the limitations of the sport can be swayed by the prosecution that 'someone died, someone needs to pay'. This isn't about right and wrong with jail sentences. It's about money and the prosecution's attempt to get what they consider 'justice'. There is a HUGE sympathy card played throughout these cases. Often it appears like it's the only card.

Expert witnesses will be brought in from both sides that don't know squat about the actual case. They may or may not have some utility in clearing up the incidents or defining some concepts. They may just as easily cloud the issue. They will be used primarily as persuasion levers. Much of their testimony will be boring as hell and much of it worthless, but will cost everyone a bunch of money. These people are expensive and often professional, as in do a fair amount of paid testifying.

There will likely be no justice. Everyone will lose but the lawyers.
Last edited by fmerkel on Tue Dec 02, 2014 9:59 am, edited 1 time in total.
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Norris
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Re: Any Lawyers out there???

Post by Norris » Fri Aug 08, 2014 9:40 am

I see this is going the way of the personal opinion and the observed experience in court. I do appreciate all input and I am walking away from this with the following information, some of which I already assumed...

If you are at a public dive and happen to be a Dive Master or Instructor; in order to avoid liability it is best to acknowledge that you are NOT "running" this dive, and you are NOT the "Dive Master" for said dive.

Of course when someone has a loss of a loved one they want justice. It HAS to be something other than their loved one's neglect or complacency which caused the accident! So anyone can sue for any reason and many WILL.

Most lawyers will most likely try to find a connection to a money source if they are attempting a lawsuit. Meaning that suing some Joe Schmo Padi dive master is not going to have the resources to bleed that an agency would. i.e. PADI

Thanks for the input everyone. What prompted this was that some people would choose not to dive with Bubbles and Suds (a nwdc spawn) as they stated that they don't want to be liable should someone have an accident. However; this was like one Dive Master out of the 3-4 that dive with us consistently. It would be a shame if many thought like this as it would certainly affect the mentoring that new divers certainly desire and need. These group dives are an opportunity for new divers to network with others, ask questions, drink beer, and find their SCUBA path should it be Photography, Videography, Technical Diving, or just buying cool looking gear and looking fabulous.
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Re: Any Lawyers out there???

Post by Penopolypants » Fri Aug 08, 2014 9:48 am

ITT: No actual lawyers. :(
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Re: Any Lawyers out there???

Post by Jeff Pack » Fri Aug 08, 2014 10:21 am

Norris wrote: It would be a shame if many thought like this as it would certainly affect the mentoring that new divers certainly desire and need.


I would strongly suggest the word "mentoring" never ever be used in connection with the dives...as that word would seem to imply some level of responsibility.
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- I got a good squirt in my mouth
- I would imagine that there would be a large amount of involuntary gagging
- I don't know about you but I'm not into swallowing it

CCR discussion on Caustic Cocktails.

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Re: Any Lawyers out there???

Post by Jeff Pack » Fri Aug 08, 2014 10:23 am

Penopolypants wrote:ITT: No actual lawyers. :(


Ping Margaret aka Sea Goat here... She's a lawyer...
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- I got a good squirt in my mouth
- I would imagine that there would be a large amount of involuntary gagging
- I don't know about you but I'm not into swallowing it

CCR discussion on Caustic Cocktails.

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Re: Any Lawyers out there???

Post by fmerkel » Fri Aug 08, 2014 12:09 pm

We currently have 3 lawyers in the Club and have had 5 others. I have discussed this kind of issue numerous times with all of them trying to figure out what could happen in various dive accidents. None are trial lawyers for this kind of suit. Most have a pessimistic point of view with regards to judicial rationale in this kind of problem. All dive are active divers. In the dive community they do not stand out in any particular form of diving behavior. Most do not have steady buddies. They have varying opinions of what you can do to mitigate risk.

What each individual does to deal with this is pretty individual. IMO the reality of the risk is lower than being bent (which is low) and much lower than getting in an accident driving to the dive.
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Norris
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Re: Any Lawyers out there???

Post by Norris » Fri Aug 08, 2014 12:29 pm

Jeff Pack wrote:
Norris wrote: It would be a shame if many thought like this as it would certainly affect the mentoring that new divers certainly desire and need.


I would strongly suggest the word "mentoring" never ever be used in connection with the dives...as that word would seem to imply some level of responsibility.


uh...

thanks
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Re: Any Lawyers out there???

Post by cofford » Fri Aug 08, 2014 12:33 pm

I'm not sure how it works for a DM, but as an instructor, you have a duty to act. For instance, you aren't responsible for everyone on a boat charter, but if someone is doing something unsafe, you have a duty to inform that person of that fact. You aren't required to remedy the situation, but you must inform them. You also have a duty to attempt rescue. That's not to say you are responsible for everyone, but if someone runs out of air in front of you, and you do nothing, as an instructor you can incur liability. My instructor summed it up well in my instructor class: If you are ever in a situation where an incident occurs, whether you are acting as an instructor or not, you will need to justify the actions you took, or chose not to take.

An example: You're on a boat, and two new divers are assembling gear. One of them has a problem with their octo. A more experienced diver says "hey, you don't really need that, as you can buddy breathe. Just remove the reg and plug the port, and go on your dive." In that case, I would feel obligated to tell the divers that I thought that was an unsafe idea. I would not be obligated to prevent them from diving.
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Re: Any Lawyers out there???

Post by Norris » Fri Aug 08, 2014 12:39 pm

cofford wrote:I'm not sure how it works for a DM, but as an instructor, you have a duty to act. For instance, you aren't responsible for everyone on a boat charter, but if someone is doing something unsafe, you have a duty to inform that person of that fact. You also have a duty to attempt rescue. That's not to say you are responsible for everyone, but if someone runs out of air in front of you, and you do nothing, as an instructor you can incur liability. My instructor summed it up well in my instructor class: If you are ever in a situation where an incident occurs, whether you are acting as an instructor or not, you will need to justify the actions you take, or chose not to take.


Right and I would certainly agree with that.

This was more directed at the instructor or DMs liability if they did not witness unsafe gear config or were not even in the direct vicinity to assist.
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Re: Any Lawyers out there???

Post by spatman » Fri Aug 08, 2014 3:30 pm

The obvious conclusion to all this is to just not dive with others.
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Re: Any Lawyers out there???

Post by Jeff Pack » Fri Aug 08, 2014 4:02 pm

Or have 6 divers, each on their own solo dive
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- I got a good squirt in my mouth
- I would imagine that there would be a large amount of involuntary gagging
- I don't know about you but I'm not into swallowing it

CCR discussion on Caustic Cocktails.

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Re: Any Lawyers out there???

Post by Dashrynn » Fri Aug 08, 2014 9:17 pm

spatman wrote:The obvious conclusion to all this is to just not dive with others.


You're never alone in the water, someone or something is always nearby, or that's what I've been told by people who subscribe to the "same ocean" buddy mentality.

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Re: Any Lawyers out there???

Post by Tom Nic » Sat Aug 09, 2014 7:48 am

fmerkel wrote:There will likely be no justice. Everyone will lose but the lawyers.


spatman wrote:The obvious conclusion to all this is to just not dive with others.


Well.... alrighty then. This thread was a nice depressing read for the morning. :)

I'm going to have to go with Bassman's tag line "I'm not clinically depressed, just medically disappointed."

I know Matt said it in sarcasm, but it's probably true anyway.

And what Mr. Merkel said... how can you argue?

Torte Reform, anyone? But heck, I can barely say it, let alone do anything meaningful about it, and if I were made King for a day i would turn the job over to a smarter person than I, say.... a lawyer?

But it is threads like this that made me decide to suspend my dive master "instruction" halfway through. I decided that I actually like to dive and that there was nothing I was appreciably gaining by being a DM other than some potential gear discount (they certainly weren't teaching me to be a better diver) and an annual insurance bill and the potential headaches/real problems mentioned in this thread. PADI pushes people through the certification process (or at least many PADI dive shops and Instructors do) so I can be a newly minted instructor at 100 dives or so when I barely know how to dive. I understand the reasoning / business side of it, most of a shops / instructors income is made with the new diver in their first year. Thus the perfect storm that keeps the lawyers able to take dive vacations...

Thursday dives aren't billed as "mentoring". My tag line is a disclaimer. :tomnic: And we do dive with strangers / folks we haven't met / dove with before. (One of the purposes of this board, BTW.) So I suppose that any posted dive on this forum is a potential poop storm should there be an accident. And it would flow up to the board and its owners - I'm sure the bigger dive boards have been sued, although I don't know that for a fact. Oh, and we all know that disclaimers and signed releases don't mean we don't get sued and have to spend our life's savings on legal representation, right?

I posted a dive here and ended up with a newer diver that had a near OOA (300 psi) at 60 fsw. It was handled like a champ by me (if I do say so myself), and the nearly out of air diver, so no harm no foul. But....

Sigh..... Are knitting needles dangerous? :bored:

[sarcasm]If I were an actual lawyer I'd probably avoid this thread like the plague... Since I'm not a lawyer, I recommend death metal therapy or some such.[/sarcasm]
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Re: Any Lawyers out there???

Post by Tom Nic » Sat Aug 09, 2014 7:53 am

Hmmm.... and as I think about this, if the insurance is really good, then perhaps it's not that bad of an idea to carry it on general principles? Even if you're not a DM but dive with lots of people?

What does the DM & Instructor insurance actually cover.

That $300 bucks a year doesn't sound too bad when reading this thread... depending on what you get.
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Re: Any Lawyers out there???

Post by fmerkel » Sat Aug 09, 2014 8:29 am

Tom Nic wrote:What does the DM & Instructor insurance actually cover.


Excellent question. :popcorn:

I assume it covers your legal fees. That's how our agent describe the Umbrella Policy. Think of it as DM insurance but it covers us when our other insurances (home, car) do not.

I agree that pondering this too long is frustrating and depressing. I did (because I had to as club Prez) for too long a time. Now, I simply don't think about it. I try to maintain good buddy practices with all the people I dive with. I explain my dives carefully when published, and I am not shy about turning people away. I lead dives at DIW, Skyline, and Deception so it's not like they are 'beginner'. OTOH, it's been my experience that the absolutely most difficult dives to do are with inexperienced rusty divers that think they actually still know something, followed by new divers. Advanced dives are easier for the most part as long as you put out an accurate description of the dive. Divers generally tend to sort themselves out OK.
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