The posts about recreational drugs and safety stops missed made me wonder about liability. All of the cases that I have read about that have gone to court always seem to end up with the instructor, buddy, divemaster, dive operation and equipment manufacturers found NOT liable for accidents, injuries or deaths. Can anyone out there clue me in as to findings of actual liability?
Question of actual liability
- Thread starter jbd
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rcontrera
Contributor
In my not so humble opinion, every accident, incident or injury is different and the question of who is at fault or is liable can only be determined on a case to case basis. However, it is normal operating procedure for survivors or their families to try to squeeze money out of everyone even remotely concerned. That includes the buddy, instructor, boat owner, divemaster, equipment manufacturer, parking attendant, hotel clerk ... maybe I have gone a little overboard, but you get the idea. To many, if you have a family member hurt or killed in an accident, it is like winning the lottery.
I think that liability for diving incidents rests solely on the shoulders of the individual diver. If training, equipment or experience is inadequate for a particular dive, then the dive should not be made.
(stepping down from soapbox)
Just my $.02
Ray
I think that liability for diving incidents rests solely on the shoulders of the individual diver. If training, equipment or experience is inadequate for a particular dive, then the dive should not be made.
(stepping down from soapbox)
Just my $.02
Ray
I worked with attys much of my employed life and have a son who is an atty--and the general message that I learned is the jury or judge will decide who is liable.
Also, divers do not take out liabilty insurance: dive companies do or should do.
And, that little waiver you sign is nearly meaningless in today's courts. That may change if the courts become more "conservative". But, basically, you cannot sign your rights away.
And, the dive shop is responsible for your safety. If it can be shown that the employees responsible deviated from accepted safety standards, a judgement in favor of the plaintiff is highly likely.
From a practical standpoint you are responsible for your own safety because it is your life and health that are at stake. It would be a hollow victory to lose your life and have the blame rest with the dive company. But from legal point of view, the dive shop bears a responsibility, too.
You may not like that, but it is the way things are in the 50 states (and associated territories) that make up our great country.
And, I do not know anyone who would consider the loss of a child, spouse, brother etc., like "winning the lottery".
And, jdb, the winning or losing of a case does not necessarily depend on who was "right". It, many times, depends on the skill of the the atty. Ask OJ! I would cite some case law for you, but I cannot afford my son's fees!
I pass the soap box back to you guys--be careful it is slippery!
Joewr
Also, divers do not take out liabilty insurance: dive companies do or should do.
And, that little waiver you sign is nearly meaningless in today's courts. That may change if the courts become more "conservative". But, basically, you cannot sign your rights away.
And, the dive shop is responsible for your safety. If it can be shown that the employees responsible deviated from accepted safety standards, a judgement in favor of the plaintiff is highly likely.
From a practical standpoint you are responsible for your own safety because it is your life and health that are at stake. It would be a hollow victory to lose your life and have the blame rest with the dive company. But from legal point of view, the dive shop bears a responsibility, too.
You may not like that, but it is the way things are in the 50 states (and associated territories) that make up our great country.
And, I do not know anyone who would consider the loss of a child, spouse, brother etc., like "winning the lottery".
And, jdb, the winning or losing of a case does not necessarily depend on who was "right". It, many times, depends on the skill of the the atty. Ask OJ! I would cite some case law for you, but I cannot afford my son's fees!
I pass the soap box back to you guys--be careful it is slippery!
Joewr
Kane(adian)
Contributor
The way I see it...
SOME people in the United States have gone overboard with lawsuits. I think there are legitimate times to sue to 'blame' someone, but I also think that people sometimes use a lawsuit to TRY to put blame on someone else. Sometimes, people cannot accept that something bad has happened, and although it may have been a freak accident, they try to find someone or something (which eventually comes back to the inventor, or manufacturer) to blame for the unfortunate incident. Sometimes people cannot accept that their friend/loved one may have MADE A MISTAKE. Mistakes underwater are not as forgiving as mistakes on the surface.
Sometimes there needs to be a blame placed, for outright poor products, or placing someone in a dangerous situation, unfortunately, if a dive operation puts takes you to sharks, and you jump in the water, I think that you are accepting the responsibility that something may happen to you under the water. If the operator stuck a 'tastes like chicken' sticker on your tank, and tied a beef roast around your tank valve while you were not looking, well, then maybe there would be some blame to throw around there. With diving, as most activities, there is an inherent danger involved, I think that danger is accepted the moment you get in the water.
You must admit though, if a 'lawyer' came up to you and said that he wants to sue 'company a' for 10millionbucks, for the death of your loved one and that it would cost you nothing, until you receive a settlement, (in which case, the lawyer takes half), would such a scenario not be tempting for a person who was not 'financially well-off'?
No offence to Joewr, his son or any other lawyers out there, but there are some lawyers who are ambulance (or hearse) chasers. I think that these types of lawyers often make promises of big bucks to the family of the injured or deceased, and in turn, clog up the legal system, and drag someone through court, causing them grief, and financial burden.
It is a vicious circle, or maybe it is a downward spiral? In closing, frivolous lawsuits only benefit lawyers.
This may have got off topic a bit, but I felt like ranting.
Joewr is right about the outcome of the case coming down to how good your lawyer is...and OJ, well his lawyers got him off of the criminal charges, but did he not LOSE the civil case, and was he not ordered to pay a truckload of money?
Sometimes, we need to accept our own stupidity, and grow thicker skin.
I already have my Nomex suit on, if you need me, I'll be under this soapbox.
SOME people in the United States have gone overboard with lawsuits. I think there are legitimate times to sue to 'blame' someone, but I also think that people sometimes use a lawsuit to TRY to put blame on someone else. Sometimes, people cannot accept that something bad has happened, and although it may have been a freak accident, they try to find someone or something (which eventually comes back to the inventor, or manufacturer) to blame for the unfortunate incident. Sometimes people cannot accept that their friend/loved one may have MADE A MISTAKE. Mistakes underwater are not as forgiving as mistakes on the surface.
Sometimes there needs to be a blame placed, for outright poor products, or placing someone in a dangerous situation, unfortunately, if a dive operation puts takes you to sharks, and you jump in the water, I think that you are accepting the responsibility that something may happen to you under the water. If the operator stuck a 'tastes like chicken' sticker on your tank, and tied a beef roast around your tank valve while you were not looking, well, then maybe there would be some blame to throw around there. With diving, as most activities, there is an inherent danger involved, I think that danger is accepted the moment you get in the water.
You must admit though, if a 'lawyer' came up to you and said that he wants to sue 'company a' for 10millionbucks, for the death of your loved one and that it would cost you nothing, until you receive a settlement, (in which case, the lawyer takes half), would such a scenario not be tempting for a person who was not 'financially well-off'?
No offence to Joewr, his son or any other lawyers out there, but there are some lawyers who are ambulance (or hearse) chasers. I think that these types of lawyers often make promises of big bucks to the family of the injured or deceased, and in turn, clog up the legal system, and drag someone through court, causing them grief, and financial burden.
It is a vicious circle, or maybe it is a downward spiral? In closing, frivolous lawsuits only benefit lawyers.
This may have got off topic a bit, but I felt like ranting.
Joewr is right about the outcome of the case coming down to how good your lawyer is...and OJ, well his lawyers got him off of the criminal charges, but did he not LOSE the civil case, and was he not ordered to pay a truckload of money?
Sometimes, we need to accept our own stupidity, and grow thicker skin.
I already have my Nomex suit on, if you need me, I'll be under this soapbox.
that all that nonsense started with our "Mother Country", the Kingdom by the Sea, "that swings like a pendulum do": England!
Now, that ought to cause some international flame throwing!
Have I mentioned that I am a recent graduate of the Iguana Don School of Gentle Diplomacy? The evidence is clear!
Anybody seen the rambunctious reptile around recently? He seems to be MIA. Texas Mike is a decent fill-in, but not the real thing!
Have another non-alcoholic Molson on me, Canuck(ian)!
Joewr
Now, that ought to cause some international flame throwing!
Have I mentioned that I am a recent graduate of the Iguana Don School of Gentle Diplomacy? The evidence is clear!
Anybody seen the rambunctious reptile around recently? He seems to be MIA. Texas Mike is a decent fill-in, but not the real thing!
Have another non-alcoholic Molson on me, Canuck(ian)!
Joewr
The Chairman
Chairman of the Board
If are opinions are like noses...
does that mean you get to pick your own???
and is it true that sharks don't attack attorneys out of professional courtesy???
But I digress... back to the topic!
In my humble (yet obviously accurate) opinion, PADI has covered their collective tails quite well. I feel very comfortable with how they have assigned responsibility within their diving community. I sign forms that I am healthy, and if I have a "condition", then I am required to have a doctor's release to be able to dive. I sign forms that acknowledge that I consider this sport to have risks and that I understand them. I have heard of a number of law suits (read about them in some of the trade mags too), but have never heard of anyone collecting from a diving accident. NOT that this doesn't happen, but by and large, a diving certification implies a knowledge of the inherent risks in our sport. This is usually (note the qualifier) enough for any jury. Thats why I always dive within the "rules"...
:all:
does that mean you get to pick your own???
and is it true that sharks don't attack attorneys out of professional courtesy???
But I digress... back to the topic!
In my humble (yet obviously accurate) opinion, PADI has covered their collective tails quite well. I feel very comfortable with how they have assigned responsibility within their diving community. I sign forms that I am healthy, and if I have a "condition", then I am required to have a doctor's release to be able to dive. I sign forms that acknowledge that I consider this sport to have risks and that I understand them. I have heard of a number of law suits (read about them in some of the trade mags too), but have never heard of anyone collecting from a diving accident. NOT that this doesn't happen, but by and large, a diving certification implies a knowledge of the inherent risks in our sport. This is usually (note the qualifier) enough for any jury. Thats why I always dive within the "rules"...
:all:
Joe,
I am not a lawyer, BUT:
It is absolutely not true that the waiver that you sign in dive class is meaningless. My reading on the subject indicates that it usually stands up where there is actually no liability on the part of the insured. Lawyers make up those waivers, and they are changed as cases are decided. A jury, however, can ignore anything they please.
When you sign that waiver, you are not "signing away your rights". You are acknowledging that you know diving is a hazardous activity and are willing to participate. You are also agreeing not to sue when you get hurt doing something you KNOW is dangerous but agree to participate in. That doesn't mean you CAN'T sue. If you sue an instructor, shop, resort, etc, that waiver will be trotted out for the jury to see.
Neil
I am not a lawyer, BUT:
It is absolutely not true that the waiver that you sign in dive class is meaningless. My reading on the subject indicates that it usually stands up where there is actually no liability on the part of the insured. Lawyers make up those waivers, and they are changed as cases are decided. A jury, however, can ignore anything they please.
When you sign that waiver, you are not "signing away your rights". You are acknowledging that you know diving is a hazardous activity and are willing to participate. You are also agreeing not to sue when you get hurt doing something you KNOW is dangerous but agree to participate in. That doesn't mean you CAN'T sue. If you sue an instructor, shop, resort, etc, that waiver will be trotted out for the jury to see.
Neil
Warhammer
Guest
Nice to know Little Joe is a lawyer. If'n I ever need a good one, I'll give him a call. Just tell him his Pop said to give me a freebie, right? 
I'd probably be the last person to sue anyone and wouldn't do so unless said person intentionally cause the incident or for some act of "gross negligance" (like leaving me drifting at sea for 24hrs). Notice I didn't say accident. By definition an accident is just that, an accident ie "no intent meant". It's pretty bad when someone can sue McDonalds because the coffee was to hot and I can see the need to protect oneself from suit. But I have always hated those blasted waviers that even release them from gross negligance. But if you want to dive, you sign 'em.
That reminds me of a incident an instructor friend of mine told me about a while back. He had led a group of divers to Jamaica a few years ago and they requested he sign a wavier and do a check-out dive prior to doing any other dives. Well that didn't sit to well with him and he informed them that he'd do one or the other, not both. Stating that they were either responsible for him or not responsible for him, for his reasoning. Course they didn't agree with his reasoning and stated that everyone except instructors done both, or they didn't dive. Of course instructors still had to sign the wavier. And just in case your wandering, he never flashes his instructor certification unless he is actually teaching. He says he feels better by just showing them the lowest cert level card that allows him to do the dive. Well, anyway, back to the story. He ended doing both in the end and not flashing his instructor card. But he did give them fits over it for awhile.
I'd probably be the last person to sue anyone and wouldn't do so unless said person intentionally cause the incident or for some act of "gross negligance" (like leaving me drifting at sea for 24hrs). Notice I didn't say accident. By definition an accident is just that, an accident ie "no intent meant". It's pretty bad when someone can sue McDonalds because the coffee was to hot and I can see the need to protect oneself from suit. But I have always hated those blasted waviers that even release them from gross negligance. But if you want to dive, you sign 'em.
That reminds me of a incident an instructor friend of mine told me about a while back. He had led a group of divers to Jamaica a few years ago and they requested he sign a wavier and do a check-out dive prior to doing any other dives. Well that didn't sit to well with him and he informed them that he'd do one or the other, not both. Stating that they were either responsible for him or not responsible for him, for his reasoning. Course they didn't agree with his reasoning and stated that everyone except instructors done both, or they didn't dive. Of course instructors still had to sign the wavier. And just in case your wandering, he never flashes his instructor certification unless he is actually teaching. He says he feels better by just showing them the lowest cert level card that allows him to do the dive. Well, anyway, back to the story. He ended doing both in the end and not flashing his instructor card. But he did give them fits over it for awhile.
Warhammer! I wondered where you were! Actually, "Little Joe" is John, but he still is too expensive!
But, look, I am not a lawyer--as I said up front--and can only give you anecdotes, not cite cases. I just wanted to point out some things I learned over the years...and one of them was that no matter what you sign, you retain rights.
Further, that liability was a legal term and, believe it or not, may not have anything to do with perceived right or wrong by a layman.
Egad, where is Iguana Don when I need him?
Joewr
But, look, I am not a lawyer--as I said up front--and can only give you anecdotes, not cite cases. I just wanted to point out some things I learned over the years...and one of them was that no matter what you sign, you retain rights.
Further, that liability was a legal term and, believe it or not, may not have anything to do with perceived right or wrong by a layman.
Egad, where is Iguana Don when I need him?
Joewr
Warhammer
Guest
I've been out of commission for a few days, but I've dropped in from time to time.
Another thing about suits and lawyers that has always left me scratching my head. Lawyers get 40-50% (no offense to John, there, Joe. More power to him), Uncle Sam gets 30%, wife gets 29%, and that leaves me with a whooping 1%! Wow! Maybe I can buy a few new tanks out of that million dollar lawsuit.
Another thing about suits and lawyers that has always left me scratching my head. Lawyers get 40-50% (no offense to John, there, Joe. More power to him), Uncle Sam gets 30%, wife gets 29%, and that leaves me with a whooping 1%! Wow! Maybe I can buy a few new tanks out of that million dollar lawsuit.
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