Liability of going pro?

[t-mac]

Here's the rule I learned in real estate. Once a professional, always a professional and always disclose the fact to whoever you are talking to. Even if your license to practice is not active.

Granted that the scuba industry is the wild west compared to real estate, but better safe than sorry. For that reason I stopped my scuba development path at rescue diver. An example is a broker lost his RE license for stating the carpet was "new". TREC ruled that the carpet was "used" at the moment the installers walked on it.

I think this probably derives from ethical concerns in a potential transaction. As a realtor, you are in a superior knowledge/experience position relative to others in a transaction, and you have certain ethical duties bound up in your license. If you put it on the table, you are immunizing yourself from claims that you took advantage somehow. I defintely would not follow this practice in diving as I believe it will do nothing but increase your potential for liability. There is nothing analogous to a real estate transaction here -- no potential to take advantage of another person due to your superior knowledge or training -- and so I can see no reason to have to disclose to anyone other than the shop your level of training (and then only the minimum to get on the boat/do the dive).

 

[markmud]

Doesn't transitioning from a recreational certification to a PROFESSIONAL certification (where the emphasis and intent of the certification) is to place the "professional" person in a position of RESPONSIBILITY for another, come into play?

Isn't this why practicing professionals need liability insurance, while recreational divers -even advanced technical divers (who have had much more organized training) do not? (emphasis added by markm)

I don't know if it is a valid concept, but I always felt that going to the DM cert. greatly enhanced your vulnerability to legal persecution.

Hi dumpster,

I like the distinction you are making; however, a technical diver is trained to provide the second or third layer of redundancy and the second layer of quality control for his/her buddy. The training is specific to your team mate.

I have a person with whom I buddy-up with occasionally. He is a DM and was trained by, arguably, one of the best instructors in my region. I feel that my risk of being persecuted criminally or found liable in a civil suit because of actions that I performed, either competently or incompetently, while trying to help my friend are quite small. I assume the risk when I dive with him, gladly.

So, I think the difference is Macro verses Micro.

Driftwood made the point: "Once a professional, always a professional..."

As a former Merchant Marine professional mariner, the courts have ruled that I have a "macro" responsibility to my companions, other passengers, the vessel I an onboard, the crew, the skipper, and other vessels that may meet, overtake, or cross our course. I have a duty of care to inform the captain of my opinion if a dangerous situation is present.

As a technical-diver-in-training, I have a "micro" duty of care for my buddy (Tec 40 only--not good enough to do real Tec diving!). I have much more control over my situation with my buddy than I do over the training, BRM protocols, and standing navigational orders drafted by the skipper while the mate has the con.

If I could purchase an inexpensive policy to cover my recreational diving for situations discussed on this thread, I would probably buy it.

Thanks,
markm

 

[chrisch]

Doesn't transitioning from a recreational certification to a PROFESSIONAL certification (where the emphasis and intent of the certification) is to place the "professional" person in a position of RESPONSIBILITY for another, come into play?

Isn't this why practicing professionals need liability insurance, while recreational divers -even advanced technical divers (who have had much more organized training) do not?

I don't know if it is a valid concept, but I always felt that going to the DM cert. greatly enhanced your vulnerability to legal persecution.

I agree with this thinking. A DM is a qualification to earn money not a certification of training received (IMHO anyway). As a [for example] trimix diver I cannot earn money from my training. As a Divemaster I can charge people for my "services". You are a "professional buddy". As such - in my view - you have a duty of care that could arguably be much higher than just the person you ended up with on the boat that day.

If a DM is "off duty" and diving for fun, not reward, the situation is unclear.

A Rescue Diver certification does not qualify you to earn money from rescue operations. It is hobby training. Again I agree with the general view the name is confusing, but it is very clear that it is not a professional qualification.

 

[boulderjohn]

You can charge for your services whether you have a professional certification or not. The only things stopping you are the willingness of the customer to pay you and your willingness to risk liability without insurance and the full knowledge that things will not look good in a lawsuit if you do.

We had a ScubaBoard thread a few years ago about a divemaster working (and getting paid) on a dive boat in southern California despite the fact that he had not stayed current on his DM status and was not insured. When a diver died due to his poor performance, it was not good for either him or his employer. I never heard what happened to his family, which I assume must still have been sued after his suicide.

I once dived on a dive boat in Mexico where I am sure the DMs (on board only) had never dived, let alone been certified as DMs.

 

[t-mac]

I agree with this thinking. A DM is a qualification to earn money not a certification of training received (IMHO anyway). As a [for example] trimix diver I cannot earn money from my training. As a Divemaster I can charge people for my "services". You are a "professional buddy". As such - in my view - you have a duty of care that could arguably be much higher than just the person you ended up with on the boat that day.

If a DM is "off duty" and diving for fun, not reward, the situation is unclear.

A Rescue Diver certification does not qualify you to earn money from rescue operations. It is hobby training. Again I agree with the general view the name is confusing, but it is very clear that it is not a professional qualification.

Yes, being a professional, charging for your services means you have assumed a duty with respect to the other person. Simply being in their presence as a professional does not do it. Where it starts getting muddy is when you start helping the person out -- at what point do you assume a duty? One point of reference is what the person you are helping would have thought. Did you give them a reason to rely on you as an experienced dive professional? Charging money is not a litmus test, but it is certainly a factor. What IS perfectly clear is that if you are working as a professional, you have a duty; if you are a professional not working, you may have a duty -- it is very fact specific. Working as a professional, but not charging, does not relieve you of your duty either.

 

[Trace Malinowski]

Here is some interesting reading of related topics from Nova Southeastern University where I enrolled for graduate school: http://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1011&context=law_facarticles

 

[markmud]

Way to go Trace!! +1

Quoted in part:
IV. SUGGESTIONS
" American society seems to be growing ever more litigious. As part of this trend, and also because attorneys often attempt to sue everyone connected with an accident, it is likely that more buddies will find themselves named as defendants. This section suggests steps divers can take to avoid potential liability while minimizing the risks of injuries to themselves and their buddies: (1) Obtain insurance; (2) Draft and sign specific liability releases; and (3) Carefully select qualified partners and always properly perform the obligations of a buddy."

http://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1011&context=law_facarticles

I would like to add:

4) get a PADI Self-Reliant cert, an SDI Solo Cert, and/or an SSI Independent Diver cert., so you can avoid the insta-buddy.

Item (2) from the excerpt above is a liability release that you force your buddy to sign.

markm

 

[Steve_C]

4} Having such a cert does not mean that a boat will let you use it. Plus some istabuddies are useful. I tell them what I am looking for and often they help me find critters to shoot pictures of.

 

[markmud]

Hi Steve,

I agree with you; however, a legal case could be made that if a certified Solo diver is forced to dive with an insta-buddy, or incompetent buddy, and the solo diver suffers an injury or death resulting directly from the incompetence or negligence of the insta-buddy, than the release granted by the decedent rendering the operator not liable, may become null and void.

A dive operation is bound by the standards within the industry. When an operator creates policy that does not follow association and WRSTC guide lines, they may become solely or partly liable.

I have been on a dive boat where the captain interrupted the DM and told him that I was a Solo Diver; therefore, I should not be buddied up unless I offer. I immediately thought: she is covering her rear end (so to speak).

IANAL, but I have hired a few of them.

markm

 

[t-mac]

Excellent article, Trace! Regarding the liability waiver called out by markmud, it seems to me that this would be a pretty easy thing for shops to incorporate into their standard forms -- release the shop, their personnel and anyone else on the boat. Complete assumption of risk. Of course, these forms are created by the training agencies like PADI, who are the very folks who push the buddy system that helps to create this issue. We could debate the effectiveness of such a release, but it seems to me it would be a rather simple change to standard forms that would help address an issue created in large part by the agencies themselves -- and perpetuated by the shops by requiring buddies, but not providing any attempt to protect those buddies legally. Anyone aware of any such proposals or discussion?

Tom