SCUBA - An inherently dangerous activity

[Diver0001]

OK, so let's solve the problem of people playing the "lawsuit protection" game by demanding C-cards, and quit driving the demand for the debasement of training.

Let's get diving defined as an "activity of agreed risk" in the law of the various states, and promote a uniform waiver (under statute) that absolutely bars such suits.

If such a waiver is signed, and a suit is filed anyway, the law can provide that all fees and costs of the person sued are recoverable from the person and counsel that bring the frivolous suit.

Poof - problem solved.

Now a landowner, boatowner, etc just must obtain a legitimately signed waiver from each participant. If they sign it, that's the end of the discussion. The only remaining debate is whether the person really did sign the waiver.

For these kinds of problems there are solutions.

There are activities that are inherently dangerous. Frankly, PADI and the rest do a good job of making the case that SCUBA is one of them - after all, you ARE intentionally putting yourself on life support to go in the water like this!

What 'ya think?

Karl,

On the surfact it's a nice bit of out-of-the-box thinking.

I haven't read the whole back-and-forth of this thread yet but I have question. Why would liability issues drive the "debasement" of training? I'm missing your point on this.

And on a related note, Uncle Pug, surely some government involvement could improve, if not the quality, at least the uniformity of the quality we have..... We'd have a lot more rules but a lot more control too, which is what's missing from the current lack of QA offered by the agencies. Lack of acceptable QA is the biggest risk we run in auto-regulation of the industry at this point and perhaps if it served to get the agencies to focus more on quality then some moves in this direction would be a good thing.

As for the discussion, I'll bring this in. I live in Europe. In the Netherlands, to be exact, which is one of the most over-regulated countries in the world. There's probably a law here telling you when you can and cannot piss if you look into it. And despite this, there has never been a case in this country to my knowledge of a diving instructor being successfully sued for liability. Why? We have other liability laws that make playing the liability lottery a non-starter to begin with. The basics are the same but there's the point that you have to make a direct causal connection between an act of negligence and the damage caused. Inferred damages or A leads to B leads to C types of arguments don't fly here (even when somewhere inside you think they should, which is of course the sharp side).

The point is this. We don't get *anyone* to sign a liability waiver here. We can't. We're not allowed to by law. And yet we are better protected from stupid liability claims than our American counter parts. Do you know how much I pay for insurance for full teaching status? About $100 a year and probably 98 cents of that goes to subsidizing liability coverage for cases raised in the States.

You've offered an intersting solution to a uniquely American problem but from the outside looking in, I think you're offering a solution to the wrong problem. The real problem has nothing to do with diving.

R..

 

[Genesis]

I haven't read the whole back-and-forth of this thread yet but I have question. Why would liability issues drive the "debasement" of training? I'm missing your point on this.

The problem is that the roulette game has gone something like this....

1. OW cards are useless.
2. People start getting hurt with OW cards on a given boat.
3. Charter operator gets sued. They probably win, but the costs are significant AND their insurance goes way up - even though they did not lose! Why? The insurance company had to spend money anyway to defend them.
4. They thus start demanding AOW cards.
5. Now AOW cards get debased, as the shop down the street (or even the same folks running both the shop and boat!) start SELLING AOW cards!

Repeat until all cards are debased.

If you get rid of the liability lottery, then cards become worthless. Now people buy training - not C-cards.

 

[Genesis]

BTW, this is why "shoot all the lawyers" becomes easy to say....

http://www.msnbc.msn.com/id/3918800/

Note a couple of things from this story:

1. The gent in question began smoking when he was 14. Before he got married.
2. His wife married him knowing that he smoked.
3. She was able to bring suit for his intentional and willful conduct, which led to his demise, and was awarded punitive damages - all posthumously.
4. Note that she was found 50% responsible (presumably he was responsible for the other 50%) but the entire punitive award fell on someone else! So now you can be significantly at fault and STILL stick someone ELSE with a punitive damage award?!

On what theory? That he was taken from her early? Why? Because he decided to consume a dangerous substance, with her consent? She can sue for wrongful death for his intentional acts, which a jury found her 50% responsible for?!

Note that he did not file the suit while alive, with her maintaining it posthumously for his estate. Indeed, he might have thought that there was nothing wrong with the risk he was taking up to and including the minute he died, and at the time they were together, neither did she!

It was only after the guy croaked that she suddenly became the "grieving widow" and smelled the cash register bells.

I believe that this type of decision (and its not the first) stands alone as justification for the need for iron clad releases for all activities such as scuba diving, snow skiing, snowboarding, waterskiing, snowmobiling, and maybe even walking across the street to get a paper!

 

[truva]

Maybe I'll run into all those Lawers I have heard tell of....

Truva

 

[inter_alia]

Genesis,
You wrote: "It was only after the guy croaked that she suddenly became the 'grieving widow' and smelled the cash register bells."

How dare you make light of someone's cirsumstances as a widow.

How can you possibly?

 

[Otter]

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."

Its ironic that I actually agree with you that we have moved a long way away from personal responsibility. I also am not looking for government to tell me how to run my life. My point was simply that your definition of personal responsibility was too narrow and should include the entire scope of your responsiblity to your family. It was NOT that somehow because of these responsibilities, we need the judicial system to step in.

I agree that a single individual of some reasonable age should have the right to perform activities that are he/she knows to be inherently risky without causing liability to anyone else involved. I also believe that if that individual does that, that they waive their rights to the social safety net established by the Govt. Personal responsibility is responsibilty for ALL of the outcomes, not just the good ones.

 

[Hobbs]

Where did common sence go ?
when you replace common sence with law you get the following result..
Chainsaw manual in sweden 4 pages telling you how to assembly and what oils to use, and most basic things in best practice

manual for the same chainsaw in US is about 100 pages amongst other things explaining that you are not allowed to start the chainsaw with the blade on your legs..

who in their right mind would do that ? and is it the manufactorers fault that the IDIOT goes and buys chainsaw ??

Are americans that much dumber than scandinavians ?? that you have to be told what common scence is ??

same with baby carryers in sweden you get a 2 page manual on how to assembly the thing. A friend who works in a baby shop got a couple of carriages that was supposed to be sold in the US. we laughed our heads of, reading the THICK manual, amongs other things it stated do not leave the carriage in a hill due to the risk it might start rolling downhill.
it got 4 wheels !!! of course it will start rolling downhill....
it doesnt take sherlock holmes to realise that..

this thread is in my meaning equally stupid, if you start to sue about everything replacing common scense with law.
then you get these results....

for those whose toes I stepped on I humbly appologise..

 

[Genesis]

Genesis,
You wrote: "It was only after the guy croaked that she suddenly became the 'grieving widow' and smelled the cash register bells."

How dare you make light of someone's cirsumstances as a widow.

How can you possibly?

Excuse me?

$20 million sounds like quite a "grieving widow", especially when the court first found that she was equally at fault for his smoking! (50%, remember!)

Gee, let's see, I can pour gasoline on myself, light it, and then sue Texaco for $20 million because I'm now "extra crispy." Its half their fault (the gas burned) and half mine (I'm an idiot), but by God, I'm entitled that money becuase I have these horrible injuries.

Those who were wondering why we need iron clad, standardidzed liability waivers - I just gave you the reason.

 

[g8trdiver]

I admit I haven't read thru all 8 pages of this thread to see if someone already offered this, but I suppose that for those who want to take complete responsibility for his/her own diving, then... buy a boat, shore dive.... etc...

But it is sadly true that society (esp in the U.S.) has become ridiculously litigious. I heard somewhere that the Roman Empire became this way shortly before its fall.... maybe we should all learn a lesson from history. (assuming this is true - I can't remember where I ever heard it....)

I do agree that taking the "certification" out of training would make the "learning" part more the goal, and raise the quality of the content of the courses. This is true with all kinds of certifications - including professional certifications.

However, if it is a good certification program that actually tests your skills, and expects you to master them (not just show up to class), then it's is a good way to prove that you know what you're doing by simply showing a card, rather than having to get in a pool and demonstrate.

Competition should weed out bad certification programs... but there are those who are happy with an easy ride - so they'll be glad to sleep through the classes and get their cards anyway.

So how do you get competition to work in the certification market? Maybe operators should audit the training (or form a group who does this), and accept only cards that live up to their expectations.

The key is getting certified for the right reasons ie: because you are humble enough to think maybe you could learn something, and want to; or, because you already know it from years of uncertified diving, and have no problem proving it to someone who is going to risk his financial well-being (in our litigious society) by dragging you out to a reef on his boat.

It's sad, but I have to admit, I get nervous when my neighbor's 4 year old rides figure 8's in my driveway on her little scooter.... but that's the reality we're living with these days..... sigh

So, in the mean time, if you want to take full responsibility for your own inherently dangerous activities, then buy a boat....

 

[Genesis]

"Buy a boat"

I own two. 'Nuff said.