SCUBA - An inherently dangerous activity

[Genesis]

......I find offensive a law that allows someone else to dispose of my property rights.

Certainly, if you do something to get killed, that is your right and you should be able to waive your right to sue. But for several hundred years the law has recognized that injuries to one person also affect other people, and those people should have rights to hold a tortfeasor responsible for the damages that affect them. It's not a matter of fees or lawyers creating new claims. The claims have existed for centuries.

Be careful where you go with this AZ. This expansion of the view of "survivors" rights is relatively recent, and it is the best argument I've ever seen for the warning that I just posted to my family.

IMHO that right simply doesn't exist in the way you have postulated. Oh I am well aware that courts have found such a thing. But this "it takes a village" argument is so distasteful to me that I devised my own response to those around me who might think of such a thing.

There's a simple solution: require the "grieving widow" to waive wrongful death claims before the Darwinist gets on the boat. She CAN do that.

No, she can't. Because "she" is not alone. My sister could raise a similar claim. As could my mother, father, etc. Your "solution" isn't, because it requires an unlimited pool of people to potentially waive that claim.

For example, my employer might, under your view, be able to raise such a claim because he would be deprived of my contribution to his enterprise! If I was to be working on a patent, for example, at the time of my demise he might have a claim even superior (in terms of damages) to that of my spouse! That patent might be worth billions.

Ah, yes, the old "lawyers are officers of the court and shouldn't be in the legislature" argument. Let me guess...income taxes are unconstitutional too, right? (THAT little bit of extremist drivel has been soundly trounced by the United States Supreme Court--income tax is constitutional.) Separation of powers would only be implicated if the lawyer were exercising judicial power.

That is simply not true. The oath of judicial office that an attorney takes requires the attorney to first respond as an officer of the court, and secondarily in their other professional interest.

A lawyer does not hold an office within the judicial branch.

False - an attorney who is admitted before the bar serves at the pleasure of the state supreme court. They are, legally, officers of the court. You know this - you took the oath, you've read the code. Your Supreme Court has disbarred attorneys - effectively, "firing" them. If you serve at the pleasure of the court, you are an officer of the court. Whether you are directly compensated by the court is not relavent.

I've read enough disbarment proceedings to understand how it works AZ, and I have investigated this in significant depth.

BTW, I don't expect separation of powers to mean anything any more. We screwed ourselves as a nation - permanently - back when we destroyed our bicameral federal legislature.

BTW, the 16th amendment was indeed properly ratified, some people's claim to the contrary notwithstanding.

 

[Otter]

The first beating is assault and battery (and possibly aggrevated battery.) After the first beating? Can I not consent to being struck? Sure I can - boxing participants do it, as just one example. Or how about a domamatrix....

We have a legal standard of child neglect now. It is a relatively high bar. Diving simply doesn't get there, any more than going out to get the trash or skiing does.

This, my friends, is the path to the madness we have now.

It is the classic liberal argument, the strict disavowal of personal responsibility for one's actions and their consequence, and the view that "it takes a village" to decide what one may, and may not, do.

I understand that many people believe this.

I, however, do not.

I have family memebers who believe as you do; they are avowed liberals and believe that they are indeed everyone's keeper. I have devised my own solution to such insanity.

To those among my relatives who may consider suing someone should I cack myself while diving, I have this very pointed warning for them, and they've all heard the speech.

You are religious people, as am I. I believe in an afterlife, and a God. I warn you here, so you have fair notice. Should you do something unseemly like sue after I manage to earn a Darwin award due to my own actions, you are put on notice - you had better hope that your religious beliefs are wrong.

Because, if they're not, you will suffer the worst possible hell here on earth you can imagine, and then some. "Carrie" and "Poltergeist" will seem mild compared to what I will inflict on you. I swear with my very soul that if you do such a thing, I will commit whatever I am in the afterlife to making your life a living hell, along with all who are complicit in your evil deed. I will haunt your every waking and sleeping moment. I will slam the doors in your house, make the pictures fall off the wall, and cause your wiring to overheat and your home to burn to ashes. I will not rest until you join me, irrespective of whether I end up in heaven or hell for my actions here on earth and after I die.

You've been warned; govern yourself accordingly.

or perhaps I need to be more succinct.

To presume consent from a spouse by the lack of a divorce is falacious.

To presume consent from a minor child by the fact that they eat food provided by you and live in a home you provide is ludicrous.

To presume that you have taken care of YOUR RESPONSIBILITES TO YOUR WIFE and CHILDREN because you have provided a source of financial secuirty is near-sighted.

 

[michaelp68]

Genesis, what happened to you that led you to promote your agenda with such virulent views? It's amazing. I'm not being sarcastic. Really, what happened, since you seem so aggressive about this?

Azatty has also already addressed several issues I was going to address, and he did it quite well.

But here's my biggest issue.

How is it ever fair to legislatively, in one fell swoop, predetermine facts and completely bar someone from turning to the justice system to present a claim and have it be heard and considered? It's just flat out wrong.

It's wrong regardless of whether it would protect some dive professionals from frivolous lawsuits or somehow benefit scuba diving. (I don't think it would. In fact, I think it would have the opposite effect.)

If you can't see that it's simply wrong to bar someone from ever even seeking justice via a day in court, then your mind is closed and you'll simply never 'get it.' You may truly believe that a person seeking justice in court is simply an example of a societal problem of folks looking to play the lottery. However, your facts are plain wrong.

Of course, some people are playing the system and abusing it, and there are some outrageous examples. But MOST cases are real people seeking a bit of real justice. You can't condemn the legal system because of a few public abuses, just like you can't condemn all doctors, clergy, schoolteachers or even car salespersons because of abuses in those areas.

The access that people in the U.S. have to the courts to present cases is something that is rather special. It means that the scuba gear you buy is probably safer because of concerns by the manufacturer about liability. It means that helmets are made safer for football, hockey, cycling.... Products throughout our daily lives are safer and they kill or injure less people because of this right to go to court and hold others accountable. This is true whether it is a standard of care by professionals in any industry or an actual product in the marketplace. That is the legacy of access to the courts of America, which you would like to close.

While you may think that too many people are turning to the courts in the U.S. and pursuing claims for compensation, there has been no significant statistical increase. The change in the number of personal injury claims generally reflects, as a percentage, the change in our population. The huge increase in cases clogging our courts, however, comes from other areas and other types of cases, including family/divorce cases, criminal/drug cases and businesses suing businesses. Contrary to what you have heard or may think from hearing about a few exceptional/extraordinary cases, it's NOT a free-for-all lottery mentality for most people.

As it pertains to scuba diving, is there some glut of personal injury claims? I've not heard about it or seen any evidence of it. I just hear about a case here or there. How many injury claims are presented each year for scuba related injuries? How much money do the insurance companies spend each year defending scuba related claims and paying out any money on them versus how much money the insurance companies collect each year in scuba insurance premiums? I'm a little curious. I guess I just wonder what real evidence exists, if any, that if scuba related insurance is high, the reason is because of too many claims.

I'm sure that scuba professionals would prefer not to face the potential for liability and the costs involved. If I was a scuba professional, I wouldn't want to, either. But the costs of potential liabilities (insurance) should be considered worthy costs of doing business in this industry, probably specifically because the sport has such a potential for danger.

Insurance companies have incentive to make sure that their insureds abide by safe standards. The dive professionals have incentive to engage in safe practices to keep their premiums down and their potential liabilities minimized.

All of us in scuba diving benefit from this spreading around of costs because it makes the sport safer. Common sense dictates that it's much safer than it would be if nobody in the dive industry ever had to worry about liability.

Bringing the government into the business of defining and characterizing sporting activities is a slippery slope. It is especially a bridge not to cross when the current system is probably safer for the participants in the sport, and the current system does not, in one broad sweeping move, wipe out the ability of individuals to turn to a court to present a claim to be heard and considered.

Your website specifically refers to open markets and fair dealing. Aside from the wisdom of the legislation you propose, how is it that asking for sweeping legislation to grant a blanket of immunity to an industry is consistent with having open markets? If you're consistent, when you prefer fair dealing and open markets, you don't ask the government to step in and start mucking it up.

And it's just plain wrong to take away the rights of people to ask a court for justice. They may win or they may lose. But they should at least have the right to ask for it.

 

[AzAtty]

Genesis, I agree that the slippery slope of survivors rights can push claims to the extreme--the employer claim you postulated, for instance. Personally, I don't think they should be expanded any further. I don't see them being expanded much simply because one of the elements a plaintiff must prove is damages, and damages must be proved with a reasonable degree of certainty. That cuts off a lot of speculative claims.

I disagree with your interpretation of "officer of the court", but we won't see eye-to-eye on that one. Here's what the United States Supreme Court says:

Writing for the Court in In re Griffiths, 413 U.S. 717, 728-
729, 93 S.Ct. 2851, 2858, 37 L.Ed.2d 910, Mr. Justice Powell responded to the argument that a lawyer is comparable to other holders of governmental office as follows:

"We note at the outset that this argument goes beyond the opinion of the Connecticut Supreme Court, which recognized that a lawyer is not an officer in the ordinary sense. 162 Conn. [249,] at 254, 294 A.2d [281,] 283 [(1972)]. This comports with the view of the Court expressed by Mr. Justice Black in Cammer v. United States, 350 U.S. 399, 76 S.Ct. 456, 100 L.Ed. 474 (1956): 'It has been stated many times that lawyers are "officers of the court." One of the most frequently repeated statements to this effect appears in Ex parte Garland, 4 Wall. 333, 378 [71 U.S. 333, 378], 18 L.Ed. 366. The Court pointed out there, however, that an attorney was not an "officer" within the ordinary meaning of that term. Certainly nothing that was said in Ex parte Garland or in any other case decided by this Court places attorneys in the same category as marshals, bailiffs, court clerks or judges. Unlike these officials a lawyer is engaged in a private profession, important though it be to our system of justice. In general he makes his own decisions, follows his own best judgment, collects his own fees and runs his own business. The word "officer" as it has always been applied to lawyers conveys quite a different meaning from the word "officer" as applied to people serving as officers within the conventional meaning of that term.' Id., at 405 (footnote omitted)."

Ferri v. Ackerman, 444 U.S. 193, 100 S.Ct. 402, 62 L.Ed.2d 355, U.S.Pa., Dec 04, 1979

Would you care to guess how many cases people have filed against lawyers claiming that they were "state actors" by virtue of their status as "officers of the court"? Dozens. None of those arguments ever succeeded, and a fair amount of ink has been devoted to saying "look people, 'officer of the court' is a traditional and historic label applied to lawyers because they participate in the administration of justice by representing people. It doesn't mean they're members of the judiciary." Frankly, I would love it if lawyers were "officers of the court" in the sense you claim. I would enjoy state protection. I'd enjoy limited immunity. It would be wonderful.

But consider this: a police officer is a member of the executive branch. Does that mean a cop should never be elected to legislative office? I'll be interested in your answer.

 

[Genesis]

Otter and Michael, you just don't get it. I don't think you'll ever get it.

There are two basic ways to look at the world:

1. My life is my responsibility. To the extent that I have a family, they are also my responsibility (and me theirs.) We allocate responsibility, and risk, among us. Absent quantifyable and defined behavior that breaches a clear duty, the state has no business stepping in and creating "causes of action" or posthumously judging our actions. Where we, as a family unit, calibrate the risk/reward equation is not up to you - it is up to US. If I am single, the responsibility is mine alone. If I wish to skydive, scuba dive, play baseball, climb mountains, fish, hunt, or just walk across the street, I will do so, with the consent and counsel of my family (if I have one.)

2. "It takes a village." Every action you take is subject to strict scrutiny. Your actions which encompass risk - any risk - are subject to a necessity defense, but no other. The state is your mother, father, Lord God and Executioner, often all in the same sentence (literally.) If we, defined as society, do not like how you calibrate your personal risks and those of your family, we will intervene - even if we do things more risky ourselves. We will arrogate to the state the power to determine what is good and bad for others, especially when its something we don't do ourselves.

Diving - any kind of diving, even cave diving without any training at all - is arguably LESS RISKY than many perfectly legal activities today.

For example, smoking tobacco. It kills about 40% of those who engage in it. Yet, it is legal and indeed the product is advertised!

As another example, being overweight. It is responsible for about 25%, directly and indirectly, of all deaths in this country. Yet, it is a fact that a huge percentage of KIDS are obese, and an OBSCENE percentage of adults are.

Are you prepared to ban, under penalty of law (or lawsuit!) these two things?

Because until you are, you're complaining about risks that are so far down in the noise level that they are completely lost in any view of statistical relavence.

Your "merit" in complaining about people not having a uniform way to waive the right to sue (including for their heirs and estates) sounds very nice and "fluffy." However, the fact remains that suits like the Murley one are completely without foundation, yet they are repeatedly filed. Despite the protests the "sanctions" can be imposed, they rarely are, and when they are, they are FINES paid to the court - they in no way make the DEFENDANT of that frivolous action whole.

The bar complains about people raising hell about the McDonalds' coffee suit, and points to "facts" that McDonalds knew the coffee was "too hot." That, by the way, is a lie. A bald-faced, intentional, scum-sucking lawyer lie.

Did you know that the optimum coffee brewing temperature is 205F? Why didn't they disclose this? Because it would destroy their argument that the coffee was "too hot" - that's why. Indeed, the coffee was hotter than 120F - which is where THEY want the temperature set. Coffee brewed or held at 120F tastes like crap.

There are literally thousands of similar examples.

A dive boat should be nothing more than transportation.
A dive instructor should offer instruction.

YOU, and only YOU, should determine if you are fit, prepared, and capable of making a given dive.

You, and only YOU, should bear the consequences of the decision when to dive, where to dive, with whom to dive (or if to dive with anyone else at all), with what gasses you dive, how you configure your equipment, to what depth and time you dive, and how you behave underwater.

If you want O2 on the boat, you should demand it and it should be in the agreement you sign, or prominently displayed - so it becomes an inherent part of your agreement with the boat operator.

If you want a chamber on board, ditto (good luck with that one!)

The entire point here is that we have turned from a land of personal responsibility into one of people playing "cop", under threat of lawsuit. While this would be nice if it actually resulted in safety, it does not.

All it results in is card-selling and LESS safety, as people can fail to consider the consequences of their actions, smug in the knowledge that they can fall back on "the village."

 

[Genesis]

Genesis, I agree that the slippery slope of survivors rights can push claims to the extreme--the employer claim you postulated, for instance. Personally, I don't think they should be expanded any further.

I don't believe they should be permitted at all, beyond a potential claim on the decedant's estate. If a survivor wants such rights, they should acquire them by contract with the decedant BEFORE he croaks. This can easily be done - the problem with the way this is played today is that the person who is dead might not have wanted that other person to have what they are claiming, and absent their death, they wouldn't have given it to them either!

A good example is a kid bringing such a claim for an estate. Absent the death, the parent might not have left the kid ANYTHING in their will! 18 year and one day, and you're out on your butt! It happens all the time, yet when the parent(s) die, suddenly their wishes are disregarded - will or no will.

Would you care to guess how many cases people have filed against lawyers claiming that they were "state actors" by virtue of their status as "officers of the court"? Dozens. None of those arguments ever succeeded, and a fair amount of ink has been devoted to saying "look people, 'officer of the court' is a traditional and historic label applied to lawyers because they participate in the administration of justice by representing people. It doesn't mean they're members of the judiciary." Frankly, I would love it if lawyers were "officers of the court" in the sense you claim. I would enjoy state protection. I'd enjoy limited immunity. It would be wonderful.

But consider this: a police officer is a member of the executive branch. Does that mean a cop should never be elected to legislative office? I'll be interested in your answer.

Until and unless said cop resigns his former office in the executive branch, yes.

A lawyer who wishes to serve in the legislative branch should be forced to surrender his bar card prior to the election or appointment.

You could call me a Constitutional Absolutist, and you wouldn't be off the mark in doing so. I'm well aware that a lot of people see things differently. IMHO, one of the reasons we have the mess we have in this country, and its a BIG mess, is that we trashed our bicameral federal legislature about 100 years ago. Virtually ALL of the stupidity in the courts and the legislature post-dates this very important, and completely irrevocable, change in our Constitution.

Indeed, it is the only amendment that realistically can never be undone - except by armed revolution. The people who proposed and pushed its passage did not think this one out very well, IMHO.

 

[inter_alia]

Genesis,
Well if you want to just argue about a litigious society, that's one thing. But I'm not sure your tactics are going very well in your favor here. First of all, you keep complaining about "the Bar" when there are plenty of members of "the Bar" that are not the plaintiff's attorneys you so loathe (I refer to the person, supra, that asked you what happened to you to make you so sore about this issue.). Secondly, your liberal use of the bold function is only feeling like you're poking me in the chest when I'm innocently trying to read your missives.
It's obvious you have done a lot of thinking (and maybe research) about all this, but your inability to keep it as a discourse is quite off-putting.

 

[AzAtty]

Until and unless said cop resigns his former office in the executive branch, yes.

A lawyer who wishes to serve in the legislative branch should be forced to surrender his bar card prior to the election or appointment.

And I agree with you, in a way. A lawyer can go on "inactive" status. It has the practical effect of resignation--a lawyer on inactive status cannot practice law. If I were to go into the Legislature, I'd go inactive in both states where I'm admitted. When a lawyer goes into a public office, the ethical rules require his firm to remove his name. The comments to the rule imply that the lawyer will not be practicing during that time. The way I was taught legal ethics, if you go on the bench or go into public office, you damn well better not be practicing law anymore.

I think the primary reason you see lawyers not surrendering a bar card entirely when they get elected is that it is a royal pain in the a** to get admitted again. We're talking bar exams again, character and fitness applications again, background checks. It's not something a middle-age guy wants to go through again. I've done it twice--once for Arizona, once for California--and the only other places I even want to think about now are (a) Texas, (b) Washington D.C., or (c) Minnesota because I could get admitted on motion (and a hefty fee) and not have to study for six months for the bar exam again.

It didn't take much to surmise that you're more of an Absolutist. And that's fine; I can understand the viewpoint. I think the Supreme Court has pushed a bit too far in some ways myself. Shoot, I'm about to go into court on a bankruptcy issue and tell the judge that the most recent Supreme Court case on the new value exception to the absolute priority rule effectively requires a business debtor to violate the 1933 and 1934 Securities Acts in order to satisfy the "market exposure" test articulated in LaSalle. So they don't always get it right.

Now, I think the right an proper thing you should do to assuage all of our tender lawyer feelings is to invite us all down for some diving on your boat--free, of course, so you don't run afoul of the law.

 

[Genesis]

I think the primary reason you see lawyers not surrendering a bar card entirely when they get elected is that it is a royal pain in the a** to get admitted again. We're talking bar exams again, character and fitness applications again, background checks. It's not something a middle-age guy wants to go through again. I've done it twice--once for Arizona, once for California--and the only other places I even want to think about now are (a) Texas, (b) Washington D.C., or (c) Minnesota because I could get admitted on motion (and a hefty fee) and not have to study for six months for the bar exam again.

Ah, but given the criminal record of our legislators, you should have to sit for it all again - especially the character part

(That's not sarcastic either. You'd be shocked at the litany of misdemeanors and felonies that our legislators and senators have racked up between them, many of them while in office. Only occasionally does it actually cause one of them to end up losing their seat - e.g. Trafficante - and then only when they're on the "outs" with the party at the time.)

As for offering to take all you tender lawyers out diving, there's a standing offer out there for SB members.... 'ya just gotta ask.

This time of year, bring a drysuit.

 

[AzAtty]

I think that for Christmas next year I'll send you a copy of a book my dad keeps in his office (he's a lawyer) entitled "Battered Lawyers and Other Good Ideas." I'm sure you'd enjoy it.

I keep "Lawyers and Other Reptiles" in my office.