Professional liability when diving with friends

[JDostal]

One of my main diving buddies is a DM - when we go on charters and they ask for certification levels, he only shows his AOW card as he doesn't want it to be known that he is a DM. He doesn't want the liability so he will rarely act as a DM or let it be known that he is one...

 

[Lawman]

Look, to be liable for a tort like negligence there have to be 3 things: a duty to preform in a certain way or up to a certain standard, proximate cause, and damages.

If you are simply a diver on the boat you have no particular duty toward other divers. If you assume a duty by accepting money, or helping direct the dive in some way you may create a duty. That duty is to act as the reasonably prudent person under the same or similar circumstances. Reasonable prudence isn't anything that should frighten you. If you don't want to assume a duty or create one where it didn't exist before than stay an ordinary diver/passenger.

Negligence law is considerably more complicated than this, but this is the fundamental principle.

Take it from a trial lawyer with 33 years [on the 4th of Dec] experience defending tort cases.doctor:

 

[mddolson]

LIABILITY WAIVER
I ___________________ hereby affirm that I have been advised and thoroughly informed of the inherent hazards of scuba diving activities. Further, I understand that diving with compressed air, oxygen enriched air (Nitrox), oxygen and/or helium (Trimix and/or Heliox) and/or neon and/or a severe flatulence methenox disorder involves certain inherent risks including, but not limited to, decompression sickness, embolism, oxygen toxicity, inert gas narcosis, marine life injuries, and/or other barotrauma/hyperbaric injuries that can occur which require treatment in a recompression chamber. Divorce, use of incontinence products, bad credit, bad shocks, bad lower back, ridicule from your friends and family, irreversible hypothermic induced small penis envy and the inability to support even an extra, extra small catheter to ones' penis may all be side effects not immediately evident.

I, ____________________ further understand that the open water scuba diving trips, which are necessary for training and certification may be conducted at a site that is remote, either by time or distance or both from such a recompression chamber. The site is probably an expensive, over-rated weenie site that will be hyped as much as possible to make me believe that I'm actually exploring something macho. I still choose to proceed with such instructional scuba dives despite the possible absence of a recompression chamber, absence of marine life other than something on a microbial level, descent bathroom facilities, and appropriate cocktail bars and/or gentlemanly ballets in proximity to the dive site.

I, _________________ understand and agree that neither my instructor: ______________________, the facility, ___________________, through which I receive my instruction nor any of their respective employees, officers, agents, mistresses, cousins, in-laws, one-night stands, neighbors, acquaintances, mothers, fathers, former cell mates, hair dressers, bar tenders, mailmen, the pool boy, the kid that cuts the lawn or assignees (hereafter referred to as Released Parties) may be held liable or responsible in anyway for any injury, death, adulterous action, voyeurism, lewd and/or licentious behavior or other damages from any family including daughters, sisters, sister-in-laws, mother-in-laws, spouses, and/or the neighbors spouse, heirs or assignees that may occur as a result of my participation in this diving class or as a result of the negligence of any party, including the Released Parties, whether passive, active, out of lust, or being just down right malicious. So there.

_____ In consideration of being allowed to enroll in this diving course, I hereby personally assume all risks in connection with said course, for any harm, injury, or damage that may befall me while I am enrolled as a student of this course, including all risks connected therewith, whether foreseen or unforeseen including all bar tabs, bail, bounced checks, back taxes, paternity judgments, child and/or spousal support payments and/or incidental overdrafts incurred by said instructor. I further acknowledge that the said instructor was just sitting around, minding his/her own business when I demanded he/she provide me with diving instruction. I threatened to kill him/her and his/her entire family at knifepoint if he/she did not teach me how to dive to the deep, dark and scary.


_____I further save and hold harmless said course and Released Parties from any claim, lawsuit, contested paternity action, allegations of drunkenness, adultery, voyeurism, and contend that the Released Parties do not know my daughter(s), who the father of her baby is, cuz they weren't there and they have alibis including those for my instructor, his family, estate, heirs or assignees and all of his innocent buddies whom also were not there, don't know my daughter(s) either and whom also have bullet-proof alibis, in order to consider my enrollment and participation in this diving course, including both claims arising during the course, and those I receive within 9 months after my certification.

____ I also understand that scuba diving activities are physically strenuous and that I will be exerting myself during this Scuba diving course and that if I am injured or killed as a result of heart attack(s); stroke(s); panic; hyperventilation; oxygen toxicity; inert gas narcosis; drowning; DCS; car accident; hernia; hemorrhoids; old age; mad, rabid, killer trout or any other risk of diving that I expressly assume the risk of said injuries and hereby bequeath my entire collection of dive gear to said instructor. My wife's phone number is (___) ___ - ____ and her picture is included.

She prefers(please state color)
Roses _______
Carnations _______
Other ___________ (please state)

My wife's favorite lingerie color from Victoria Secrete is: ____________
She prefers her men wear:
Boxers __
Briefs __
Au Naturale __

I further state that I am of lawful age and so is my daughter and spouse whom are all of a lawful age for legal consent of certain conduct, and I am of course competent to sign this liability release.


________________________________________________
Signature of Student Date

 

[Lawman]

Never trust a waiver of liability too much:
1] Your state may not accept waivers of legal responsibility.
2. A court can set aside a waiver if unfair, overreaching, or contrary to public policy. ie: an airline having you sign a waiver to absolve them of responsibility for drunken pilots.
3. some states require "consideration" ie: payment of some type for giving up rights through a waiver.


The problem is that people are so ignorant of the law that they have unreasonable fears of being sued. This comes from the relentless reporting of the crackpot cases in the media. Be "reasonably prudent" and you're ok.

 

[mddolson]

Based on your reply... I think you missed it Lawman.

The waiver is a joke!

Read through the clauses.

I especialy like the part about "just standing around minding my own business when this student threatens the instructor at knife point to teach him to dive in deep dark and scary"

Mike D

:bonk:

 

[Northeastwrecks]

Lawman once bubbled...
Look, to be liable for a tort like negligence there have to be 3 things: a duty to preform in a certain way or up to a certain standard, proximate cause, and damages.

If you are simply a diver on the boat you have no particular duty toward other divers. If you assume a duty by accepting money, or helping direct the dive in some way you may create a duty. That duty is to act as the reasonably prudent person under the same or similar circumstances. Reasonable prudence isn't anything that should frighten you. If you don't want to assume a duty or create one where it didn't exist before than stay an ordinary diver/passenger.

Negligence law is considerably more complicated than this, but this is the fundamental principle.

Take it from a trial lawyer with 33 years [on the 4th of Dec] experience defending tort cases.doctor:

Lawman:

I hardly think that I'm ignorant of the law. I haven't been in practice quite as long as you, but I think that an active patent and commercial litigation practice, along with some time as an Adjunct Professor at UConn Law, might have given me a teensy, weensy clue where to find the Court House.

However, I haven't handled a tort case in years. It's not compatible with my practice areas.

What concerns me most is that a jury (in my mind, 12 people too stupid to get out of the duty) could decide to that I acted in such a way as to assume a duty.

For example, I will frequently handle booking the boat when I dive with friends. Prior to doing so, I check the boats out to make sure that they have proper certifications/licenses/equipment, etc....

I do not, however, supervise the dives or pick the sites. I don't make the determination whether other divers will get in the water or even whether the boat will leave the dock. I don't pair up buddies or handle any of the details associated with the dive once we are underway (on smaller boats, I will handle the tie-off).

I recognize that, theoretically, a Court might find a duty to handle the bookings in a reasonably prudent manner. For example, I try to avoid boats where you meet the Captain at the local bar prior to casting off. I dropped one boat before I set foot on her deck when the Captain told me to bring my first aid and O2 kit because he didn't have them onboard.

What I am concerned about is that a jury could decide that my duty extends beyond those associated with picking the boat (whatever those might be) and includes activities associated with the dive itself.

BTW, I'm not looking for legal advice, yada, yada, yada.... I'm just curious.

 

[Lawman]

First, I get the joke about the release. My comments were about releases in general.

Second, the finding of a legal duty is a matter of law for the judge to determine, not the jury. I was referring to the creation of a legal duty by someone on the boat by assisting or accepting money. A "volunteer". Only if the Court finds a legal duty can the issue of proximate causation and damages go to the jury.

Negligence is difficult to discuss on a message board where people don't know legal jargon. My point remains that many people in the dive industry have an unreasonable fear of being sued. They should relax a little.

I used to teach medical malpractice and found the same fear.:doctor:

 

[SM Diver]

It's an analysis that needs to be done on a state to state basis. Since there are so many divers in Florida, I'll use it as an example. In Florida, waivers have been legally upheld to exempt someone from a personal injury claim, so long as the injury or death was in any way diving related. In other words, if somene shoots to the surface and dies, they can't sue. It's diving related. On the other hand, if the six pack captain decided to run at Mach 1 speed to pick up another diver, and ran over you, he might be liable.

This is contrary to the general rule that it is bad public policy to allow someone to contract their way out of the duty of care they should provide. Both federal and state courts in Florida have ruled in this manner, and that is the present status of the law.

 

[XtremeSea1]

Whenever I dive with friends, I am usually viewed, because of my credentials, as the dive leader. I ALWAYS accept this responsibility and consider it an honor. In this role, I am always prepared to lead/rescue/train/guide etc. if the need arises. Being a dive leader is not a part-time responsibility and I would have concerns about any dive leader that would "hide" his card. I have full confidence that I would survive any lawsuit. Why? because I will LEAD the dive and act accordingly to any and all emergencies. You have to either lead...follow...or get out of the way and I'd rather be sued knowing that I did everything humanly possible to save someone, than to hide my card and sit by and watch.

That's the NAUI difference (never a bad time for a plug )

 

[Lawman]

Tampascott is correct that waivers are treated differently by different states. Michigan only started accepting them about 10 years ago. He is also correct that to provide immunity from suit the injury must be caused by something within the scope of the waiver. Additionally, some states have the assumption of risk doctrine and some don't. That is, you may assume certain risks [being hit by a ball in a softball game] if you choose to participate. Michigan doesn't have assumption of risk any longer and has adopted comparative negligence. Negligence causing injury by one preson may be set off by the comparative negligence of the other.

On the danger of waivers: If they aren't broad enough an injury might fall outside the scope of the waiver. If they are too broad, a court may set them aside as contrary to public policy. ie: a waiver of an intentional tort like assault.

Be reasonable, act reasonably, fear reasonably:doctor: