How serious a screw-up was this?

[String]

The Dive shop they were diving with set their gear up for them.....The minute you, as a dive professional take responsibility for setting up a customers gear, you are taking responsibility for thier gear being set up right, and SAFE.

No you aren't. Again what part of "certified diver" do you fail to comprehend? What part of the assumption of risk agreement where signatories agree to check their equipment did you forget to read?
Setting up gear aside (i think its a very very bad thing, encourages laziness) you have no liability. The DIVER is responsible for checking his own equipment and conducting the dive with it. Nobody else.

The fact that the guy was allowed to jump into his gear and get into the water without his air being on IS gross negligence.

Again what part of "certified diver" do you fail to comprehend? They have forms, cards and signatures stating they are able to do it themselves. They sign forms stating they WILL do it themselves. Its not gross negligence. Its not negligence at all. Its utter stupidity from the diver concerned but nothing else.

"The dive shop set up our gear; we just got into our BC's and rolled backwards off the side of the boat."

So the divers themselves were bot cavalier and negligent. Not the DM. They're supposed to be qualified yet they completely ignored their training and as such are diving outside the conditions of their training. That's nobodies fault but their own.

 

[Kingpatzer]

No you aren't. Again what part of "certified diver" do you fail to comprehend? What part of the assumption of risk agreement where signatories agree to check their equipment did you forget to read?

String, the assumption of risk agreement does not obsolve the operator from gross negligence in many (perhaps most) US jurisdictions. Any action that a dive professional takes on as part of their paid services will be scrutinized under "duty of care," and if it was the action of a reasonably prudent dive professional. No reasonably prudent dive professional would send someone underwater without the air turned on. Indeed, it is such an important point that we specifically go over in class how to do it multiple times, we have acronyms around making sure our buddies check it, and it appears in the OW checkout dives no less than 4 times.

It is not a stretch of the imagination to conclude that with such a heightened level of attention to that one item, failing to turn on air is in fact gross negligence.

To presume that the assumption of risk and other releases save the dive operator from legal action is simply failing to appreciate that those pieces of paper are not licenses to do any idiot thing we feel like doing. They offer protection but it is rare that they are a blanket cover for liability. Indeed, the discussion at that point becomes "ok, you admit the facts of the case, so you admit you would be liable, but you have a piece of paper you are holding up that you believe makes you bullet proof."

In some cases that will wash. But the difference between negligence and gross negligence is not easy to judge for those of us who aren't legally trained. It's the difference between a fool and a damn fool. If something like the OPs story resulted in a death the insurance carrier would be trying to settle the case as soon as the facts were known because the expense of trying to make the argument that denying a customer air while under water through inattention to simple detail is not gross negligence isn't going to be an argument they will be willing to make on your behalf.

Setting up gear aside (i think its a very very bad thing, encourages laziness) you have no liability. The DIVER is responsible for checking his own equipment and conducting the dive with it. Nobody else.

Then don't offer it as a service on your boat.

Again what part of "certified diver" do you fail to comprehend? They have forms, cards and signatures stating they are able to do it themselves. They sign forms stating they WILL do it themselves. Its not gross negligence. Its not negligence at all. Its utter stupidity from the diver concerned but nothing else.

What the diver said they will or won't do has no bearing on the responsibility of the DM to the diver when the DM is setting up the gear. If the DM is giving instructions to violate the training, the customer certainly should, as responsible well trained divers, tell the DM to go soak his head. However, in the real world, the customer will defer to the DM most of the time. The law tends to recognize human behavior in cases like this. And juries certainly do.

So the divers themselves were bot cavalier and negligent. Not the DM. They're supposed to be qualified yet they completely ignored their training and as such are diving outside the conditions of their training. That's nobodies fault but their own.

This doesn't change anything. There can be shared liability. But to say there is not negligence is foolish. To argue that it is not gross negligence is a reach. At which point what matters is entirely a matter of if you use a release to sign away liability incurred from gross negligence. In my location, that is simply not allowed.

 

[String]

String, the assumption of risk agreement does not obsolve the operator from gross negligence in many (perhaps most) US jurisdictions.

Of course it doesnt. In europe its illegal to ask someone to absolve any party from gross negligence. However that isn't the issue as we're not even talking about even a minor case of negligence here. The role of the DM is highlighted fully in the DM materials, instructor materials and paperwork and that role doesn't include a babysitter. What a qualified diver has been assessed to be able to do and not do is also covered in complete detail. Combining those 2 and its very very clear that the DM is not a nanny to a qualified diver and the burden is entirely on them. Air checks and bottom-wiping is not part of a DMs job. He's there for logistical support when dealing with qualified divers. It even states explicitly that individual divers are responsible for both the planning AND conduct of their dive and they are ultimately responsible for it.
So theres no issue of negligence here. The forms aren't relevant.

Any action that a dive professional takes on as part of their paid services will be scrutinized under "duty of care," and if it was the action of a reasonably prudent dive professional. No reasonably prudent dive professional would send someone underwater without the air turned on.

That isn't in their remit. There have been NO legal challenges with convictions anywhere at all so your claims are baseless. It HAS been challenged and always rejected. The duty of care is going to focus on their specifically defined roles such as site selection, conditions, first aid provision and so on. It will not cross that line into stuff the diver themselves are responsible for (and sign to say they are responsible for).

It is not a stretch of the imagination to conclude that with such a heightened level of attention to that one item, failing to turn on air is in fact gross negligence.

Rubbish. ITs clearly not. You are dealing with *QUALIFIED* divers here not students. That qualification states they are capable and responsible for planning and conducting dives within certain parameters. In fact its clear from that its only the diver responsible from that. The complete lack of any legal convictions backs that up. We aren't talking about unqualified students here on a course who DO need looking after and clearly ARE under a direct supervision but qualified divers who have met a standard that says they are trained in what to do, the risks and responsible themselves for their conduct.

What the diver said they will or won't do has no bearing on the responsibility of the DM to the diver when the DM is setting up the gear.

Yes it does. Part of that divers training involves the knowledge and ability to check their own equipment AND perform a buddy check. Its in their training standards. They're told to do it multiple times. They know how to do it. They're told they MUST do it. They're told its their responsibility. If they fail to do that its their own pathological stupidity and their own problem and nobody elses.

If the DM is giving instructions to violate the training, the customer certainly should, as responsible well trained divers, tell the DM to go soak his head.

Where in this story did the DM say "Dont check your equipment, dont check your gas levels, certainly dont even THINK of doing a buddy check and just get in" ?

However, in the real world, the customer will defer to the DM most of the time. The law tends to recognize human behavior in cases like this. And juries certainly do.

So where are these convictions? Where are all the incidents?

Claiming a third party is negligent for failing to address something that doesn't come under his official role, description or duties that was caused entirely by the stupidity of someone who IS expected to be able to do it but couldnt be bothered is not negligence.
The DM doesnt have to be in the water, he doesnt even have to be near the entry point. He may already BE under water tying the boat off, doing current checks or countless other tasks. Hes there to provide the logistics to make the dive possibly not to protect imbeciles from themselves. These people should not be diving.

 

[shake-and-bake]

I guess you must be basing this analysis on Egyptian law, because under U.S. law it is wrong in every particular, for the reasons that have already been clearly stated.

 

[Kingpatzer]

So where are these convictions? Where are all the incidents?

Liability is not a matter of criminal law. There will be no convictions.

Moreover, there's likely not going to be much in terms of case law that is particular to the dive industry. The case law around these sorts of liability extend to well beyond scuba diving operators. In the USA, should something like this cause an injury or death, it is going to be settled before they get to court because they are pretty much cut and dry. Insurance companies are going to avoid the courtroom at all costs when liability is obvious. The operator is setting up the gear, they are taking responsibility for that activity. Doing it incorrectly will result in liability.

 

[Tortuga68]

I never said you couldnt. Why would I? OBTW the OP just told you that the DM had Plainly stated that the gear would be ready to dive. Still think he has no liability?

Has nothing to do with the amount of boat dives, more about the variety of different boats and the inconsistancy of thier waivers. Not to mention the fact that you dont understand what liability really is, which contributes to your ignorance

I dont set up peoples gear either. But if i did the freaking air would be on

Really, it took you 20min to decide to get back on wiki to find some obscure latin phrases to throw at me. Here is some plain english that i dont think you need to look up: You are wrong! Educate Yourself!

I really hope you make a great DM. Stay in China though, maybe they are more forgiving of negligence

You continue to play the man and not the ball. You complain that I won't admit that I am wrong, yet you don't give me any reason to do so except repeating ad infinitum (there's another obscure latin phrase for you) that you're a dive pro and I'm not, calling me ignorant & implying that I'm negligent. You were asked pages ago how you formed the opinion you have, and you steadfastedly refuse to explain or provide any evidence or justification except "I'm right and you're ignorant" over & again while making assumptions about other people's qualifications and experience, and the details of the incident in question

Whether you're right or not, your methods of persuasion are seriously lacking

 

[Cave Diver]

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[Jim Lapenta]

Jim, if your point is that no diver should assume someone else has set their gear up correctly, you and I are in perfect agreement. Something I drill into my students is that it is their gear and they need to ensure it is in correct working order before getting near the water because it is their life on the line. But if you are arguing against the DM having liability based on this principle, then you miss the point. It doesn't matter that the diver had a responsibility also. The DM, acting as a professional, set up the gear and indicated the gear was ready to be dived, and he was wrong. That makes him liable to at least some degree. The only thing a jury would be discussing given these facts is the award amount and how much shared liability there is. There would be no discussion of if the DM had some liability.

It is my understanding that might save the DM were this to happen and go to court is that some areas limit damages based on what percentage of an event a person is responsible for. It could be argued that the DM, Diver and Buddy all had a responsibility to ensure the gear was working correctly, and that the DM's degree of liability was less than whatever that jurisdiction's threshold for damages happens to be. But I'd rather not bet my bank account that a jury would accept my version of how to slice and dice blame.

I absolutely do not absolve the DM of liability in a case like this. In fact if the DM did not inform the diver he/she set up the gear or turned the air on and to check it they are not doing anyone a favor and are actually contributing to the problem. IF they are a pro they should be using this to reinforce the idea that divers are responsible for their own gear and use it as a teaching moment. If they do not then they do share in the liability if there is an accident. A conscientious DM should be trying to correct the poor teaching out there that tells divers they don't need to do this or that because a DM or instructor will be with them.

If I as an instructor during a class turn on my students air and do not tell them to verify it by breathing the reg and checking the valve themselves I am being negligent in my duties. The last person to touch the gear is the one who the lawyers will go after. And if I'm on a jury and you as the DM touched the victims gear and did not tell them to verify what you did you are going to to sorry that you did that. There is enough incompetence being taught to divers today and it needs to change.

 

[JonKranhouse]

String, Tortuga68 et al,

I have a few questions - but first to recap some facts and opinions:
Dive pros know that "certifications" and "community standards of care" are used as a teflon liability shield; dive industry defense attorneys and agency execs teach dive pros how to use the "shield" during risk management seminars. These RM seminars emphasize to dive pros the importance of learning and obeying the standards of care of your respective agency and RTSC during training (if your agency is a RTSC member). I'm not aware of any published standards of care for DMs regarding already certified divers.

This and other threads debate the responsibilities of DMs in many different circumstances. The consensus of many dive pros across all these threads implies that there's virtually no limit to how incompetent or egregious a DM's failings can be against an already certified OW diver, short of assault or battery (i.e. something covered by local criminal statutes), because ALL fault/blame ultimately rests with the already-certified diver (who should take responsibility for him or her self). Even abandonments at sea have been debated as being the fault of already certified divers.

Questions (for dive pros who think plaintiff lawyers are always thieves, no matter the facts of the case):

1. Are there ANY RESPONSIBILITIES that newly certified divers can truly rely upon DMs for, outside of abiding by applicable criminal and Coast Guard statutes?

2. If DMs and operators are always given a "pass" by so many of their colleagues and their training agency, how do you square that with the many reports of irresponsible instructors who award certifications to incompetent students?

3. Is there ANY failing a DM could make with an already certified diver that you believe creates a liability? Examples?
​

(Questions for everybody):

4. Does a document exist that details a DM's minimum obligations for already certified divers? (Obligations that their agency and underwriter agree to accept liability for.)

5. Should new divers be trained to a level such that DMs are irrelevant?​

 

[Jim Lapenta]

1. Are there ANY RESPONSIBILITIES that newly certified divers can truly rely upon DMs for, outside of abiding by applicable criminal and Coast Guard statutes?

Giving a good site briefing

2. If DMs and operators are always given a "pass" by so many of their colleagues and their training agency, how do you square that with the many reports of irresponsible instructors who award certifications to incompetent students?

Some of us do not give them a pass and in fact call them out on it.

3. Is there ANY failing a DM could make with an already certified diver that you believe creates a liability? Examples?

Yes. The DM insisting that the divers do not plan their own dives and follow the one determined by the DM or Operator. I have heard of DM's coming up to divers and telling them to hurry up or go somewhere the diver is not recommended to go -depth, currents, overheads, etc- in those cases the ops should not only be held liable but shut down.

(Questions for everybody):

4. Does a document exist that details a DM's minimum obligations for already certified divers? (Obligations that their agency and underwriter agree to accept liability for.)

I have not seen one as it varies from operation to operation. They ethically and morally should, though, as professionals abide by all the standards required by their agencies on training dives for divers of whatever level they are guiding. ie you do not take OW divers through the Devil's Throat.

5. Should new divers be trained to a level such that DMs are irrelevant?

HELL YES! They (DM's) should not be needed for anything other than assisting the instructors in teaching the class, conducting checkouts, site briefings, boat loading and unloading of divers, and to lead divers who WANT a guide.