What about Diver's Liability...?

[DandyDon]

I frequently board dive boats alone, without a dive buddy, and after counsel with my attorney - I don't request one! If the captain, first mate or DM assign me one or insists, I'll take one, and I'll then try to be a responsible dive buddy - even though I don't really count on the boat-pick for help, but if I'm not required, I skip it.

Q-1: Comments...?

And in chatting with a new SB member, I mentioned that I would have given him more appropriate answers if I'd known that he was an instructor, that he might put that in his profile. This was his response...

"Since I've been an instructor, I've been hesitant to say too much because of the liability crap, and was hoping to be low-profile on the scubaboard. In fact, I've decided to retire from teaching because of all the silly law suits having been filed in recent years.

"A guy in LA lost his house because he gave someone advise on a boat trip out to Catalina Island. The diver had never been in kelp before, so the instructor gave him a few tips. The diver died while entangled and the instructor (just out for some rec dives) was sued.

"PADI never mentions any of this kind of stuff when you go through the IDC or IE. Wish I'd known just how bad it was and I would have just stayed a DM."

Q-2: For an Instructor or Assistant joining SB, could he add a professional disclaimer to his Sig similar to the one we see on Medical Forum, or will the new 4-line Max Sig prevent that.

Q-3: Would such a disclaimer really protect him.

Q-4: For the described, off-duty Instructor, should he have said something like: "There are special procedues, and I'll have to refer you to the boat's DM for that."

Q-5: Do I need to be careful about giving suggestions to others on dive boats?

Q-6: Do I need to be careful about giving suggestions to others on Scuba Board?

don

 

[Genesis]

That's reality today.

Until we feed the landsharks to the watersharks, the problem will not go away any time soon.

 

[sealkie]

I don`t recall the correct term but there if you present your self as and expert ( this is a fuzzy definition ) then you can be sued for misleading or incorrect advice given if damages were done.

This doesn`t mean implying or saying you are an instructor it just means implying that you know what your you doing.

Instructors are caught between a rock and a hard place when on a dive boat - if we see something wrong and don`t act - we can be sued based on the grounds that as an instructor we should have noticed and acted. If we do act - then we are engaging oursleves in a situation we have only partial control of and if the person involved is not part of our dive group - no signed release from them. In the case of the instructor in LA - once he engaged - i.e started to give advise - he should have kept and eye on the person - but then he would have been sued if he had said nothing

If a DM assignes you a buddy and that buddy does something that causes you an injury - you can sue the DM for assigning the buddy - however - if he let you dive alone and you died - you`re family would sue him for failing to assign you a buddy.


As has been said - anyone can sue you - they may not win - but thats not gonna stop them

At least as an instructor we carry liability insurance -

I will add one thing about the comment

"PADI never mentions any of this kind of stuff when you go through the IDC or IE. "

Well ... PADI doesn`t teach - instructors and course directors do ... they failed to pass on those little gems ... hmm .. maybe he can sue em :0)

 

[scubasean]

dandydon once bubbled...

"A guy in LA lost his house because he gave someone advise on a boat trip out to Catalina Island. The diver had never been in kelp before, so the instructor gave him a few tips. The diver died while entangled and the instructor (just out for some rec dives) was sued.

don

There are too many facts missing as to what the advice was, how it was presented etc. for anyone to use this as a basis from which to form a conclusion.

Sure, folks can sue for many things...But, we don't know if the advice given was wrong...If it was, and was one of the causes of the mishap...well, you can see where I stand...

What happened to the instructor and his insurance policy? Does such a policy cover such "casual" instruction as giving advice on a boat? Seems to me probably yes, since the DM would probably be covered...Anyone know?

As for giving advice on SB or elsewhere, if you are concerned about this, do you really think an attorney is going to answer you here for free? After all, they have liability also, if they are wrong.

 

[DandyDon]

I wonder how this catch all would work: "I certainly cannot tell you what to do; I can only tell you what works for me."

On a boat, maybe follow that with: "Let's get the Boat's DM or Captain in on this question."

I'd really like to see more info on Profile, i.e. training completed, dives complete, if such can be added by instructors without inviting liability.

How about adding something like this to the Sig area of the Profile? "Comments are informational only and not meant to be instructor advice applicable to a particular case. Consult your personal instructor when considering information posted here."

don

 

[nauifins73]

Since you have an Attorney on retainer why aren't you asking him these questions and then you would then have a legal opinion?

Becky

 

[Lead_carrier]

sealkie once bubbled...

I will add one thing about the comment

"PADI never mentions any of this kind of stuff when you go through the IDC or IE. "

Well ... PADI doesn`t teach - instructors and course directors do ... they failed to pass on those little gems ... hmm .. maybe he can sue em :0)

I respectfully disagree selakie. While I am not a padi instructor, I was taught by agency approved material, by an agency approved IT with an agency approved curriculum. From my experiences padi is one of the more strict agencies on course content. So while the padi agency itself may not teach the course, they approve everything and everyone involved so in my book, they do teach the course.

In my course, we had about 2 hours on professional liability and how to handle a lot of different scenerios. There is not hard and fast rule for all situations but being inside the US and outside the country sure makes a lot of difference to me.

 

[sealkie]

My point was just because someone claims to have not been told something in a class it is not necessarily PADIs fault - as you pointed out - you were taught by the books and that included the facts about liability - the person Don knows claims PADI didn`t teach him about liability - I`m saying it wasn`t PADi but the people teaching the class

 

[AzAtty]

For the last year, I've been procrastinating the publication of a diving law journal/newsletter that provides information of the current status of these sorts of issues. Maybe I should start researching again.

PADI never mentions any of this kind of stuff when you go through the IDC or IE. Wish I'd known just how bad it was and I would have just stayed a DM.

I know that (supposedly) required reading for PADI instructors is "Law and the Diving Professional." I've never read it, but I expect that its much like other texts dealing with the same sort of topic. Unfortunately, you don't learn all the legal issues you can face by reading a textbook because in the real world the answer to a legal question is always "it depends on the facts."

Now, on to the questions:

Q1.

Genesis once bubbled...
That's reality today.

Until we feed the landsharks to the watersharks, the problem will not go away any time soon.

Although I don't necessarily agree with Genesis, there are plenty of people who do try to convince the general public that anything that goes wrong in one's life is the direct result of some other person's misconduct. Some attorneys encourage that belief, too. But there are plenty of other attorneys who don't advertise on television and don't encourage litigation.

As for some instructor losing his house over a lawsuit, scubasean is dead on. Not enough information, and where was the insurance policy. Also, if the instructor did lose his house, he had a lot more problems than a wrongful death suit brought about by his advice. I deal with that sort of thing all the time, and it isn't terribly difficult to mitigate your exposure on a judgment if your lawyer has half a brain.

Q2

Sure you can add a disclaimer. Don't know about the 4-line limit.

Q3.

It depends. First, what state's (or nation's) law applies? Disclaimers and waivers vary in their effect depending upon state law.

Q4

The GI3 Special might be appropriate: "You're going to die if you dive kelp without proper training." Heaven forbid you suggest the guy talk to the boat DM and then get sued on a negligent referral theory.

Q5

If your attorney has told you not to request a dive buddy on a boat, what do you think he'd say about giving advice? Bingo.

Q6

See response to Q5.

 

[DandyDon]

nauifins73 once bubbled...
Since you have an Attorney on retainer why aren't you asking him these questions and then you would then have a legal opinion?

Becky

Are you always like that?




To others, especially AzAtty:

Thanks for the discussion.

Some people blame lawyers, but that's weak BS. An attorney who does his best is simply doing his job the best he can. It'd be nice if everyone was more understanding and less greedy, and I could sell this ocean front property in Colorado I inherited.


don