Hiding your certification level

[Web Monkey]

Here's a made up scenario. Diver A mentions that he has buoyancy problems, Diver B says "I'm an instructor, I'll dive with you and help you with that". IMO He is acting as a professional even though he isn't being paid.

Again IMO, if you diving with or even if your buddied with someone and haven't held yourself out to be a professional diver, first (as Bruce has already said) I don't think that you would be held liable but secondly your personal liability coverage could apply if you were to be sued since you were acting as a buddy and not a professional.

Hey, this is fun!

Here's one (it might be made up, but it isn't):

400Lb diver with a beet red face (not my buddy, but talking to me):
Hey, do you get dizzy when you surface?

Me: No. Do you?

Him: Yeah, I feel like I'm going to pass out sometimes.

Me: You should probably skip the dive and see a doctor. Passing out underwater can kill you.

Him: Naaa. I'll be OK.

So.... Any liability there? Not my buddy and I told him to not dive, but he's a certified diver and can make his own decisions, and I'm only there as a tourist.

Terry

 

[KY_BOB]

Disclaimer: Everything that I have said is my interpretation and opinion of how it would play out. Only the courts can make a positive ruling.

I'm giving my opinion as a friend, not professional advise.

(In short, Don't sue me saying "Bob said that my homeowners would cover me")

 

[KY_BOB]

Hey, this is fun!

Here's one (it might be made up, but it isn't):

400Lb diver with a beet red face (not my buddy, but talking to me):
Hey, do you get dizzy when you surface?

Me: No. Do you?

Him: Yeah, I feel like I'm going to pass out sometimes.

Me: You should probably skip the dive and see a doctor. Passing out underwater can kill you.

Him: Naaa. I'll be OK.

So.... Any liability there? Not my buddy and I told him to not dive, but he's a certified diver and can make his own decisions, and I'm only there as a tourist.

Terry

This is more up Bruce's alley but here's my $.02.

Potentially. Liability requires negligence. Were you neglect in any way?

Here's the definition of negligence from Wiki, Bruce may want to chime in with a definition from Black's Law dictionary but I don't have one:

"Negligence" is not the same as "carelessness", because someone might be exercising as much care as they are capable of, yet still fall below the level of competence expected of them. It is the opposite of "diligence". It can be generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm.

Did you take "reasonable" steps to prevent their injury? If just you and he are shore diving, I think you did by warning him. If you were on a chartered boat, did you tell the DM that you think this guy isn't safe to dive? If you did, (IMO) you just transfered any potential liability to him/her. If you didn't, the guy dies and his family sues you, I could see the first question out of the attorney's mouth being "why didn't you tell the divemaster so that he/she could have prevented him from diving?" Second question "wouldn't that have been the diligent thing to do?"




(see above disclaimer)

 

[luckydays]

To be considered negligent in a Tort action, (1) one must have a Duty of Care to the individual who is suing, (2) there must be a breach of that duty to the person suing, (3) that because of the breach of duty the individual was the cause of the injury to the person who is suing, and (4) that there were actual damages sustained.

I see no connection to a diver on a boat who happens to be an Instructor or DM who has no responsibility to another individual nor is working in the capacity of their certification would be liable for the injuries of another. How is the first element of a negligence cause of action overcome? If there is no duty to that person, there is no liability. Plain and simple.

For an instructor or DM to have a duty to another diver, there must be some sort of relationship formed like in a contract where one party offers a service to the other which in turns gives consideration for that service. Just buddying up with another person does not create this relationship.

It does not mean that the instructor wont be asked questions as any other witness but a case brought against an instructor in this situation smells of ambulance chasing and frivolousness that I would hope that the judge would laugh the lawyer out of the court room as well as recommend censure for wasting the courts time.

Such a cause of action would be similar to suing an auto mechanic who happens to have his garage on a corner in which an accident occurred due to faulty brakes. Just because they are in the same vicinity of each other when the incident happened does not mean that the mechanic is responsible. Even if the accident happened while the person with the faulty breaks was on his way to see the mechanic to get the repair made.

 

[ItsBruce]

As the OP, I would like to respond to your question of not shouldering any perceived duty. I

I did not mean to imply lawyers' jobs are to lie. They are not. Their job is to present the evidence in the light most favorable to their clients and to make the best arguments they can. The law prohibits a lawyer from misrepresenting the law to the Court and from taking a position contrary to the established law unless there is a good faith argument for changing the law.

I do not know what it is in someone's mind when they do something such as hide their true cert level. I may know what they say is in their mind. But, I am not obligated to believe it. I may have my own theories as to why. As a lawyer, I present my evidence and let the jury decide.

Whatever the case, I maintain that by saying one is less experienced than one actually is, it presents an opportunity for a lawyer to create a case where there is not one. IMHO, saying "I'm an instructor; I'm not your instructor; so what of it?" is stronger than saying "I'm OW" and then being shown to be an instructor.

Go back and read Walter's version of the sample transcript and ask yourself how an average juror would feel about Walter's testimony.

 

[Walter]

I maintain that by saying one is less experienced than one actually is, it presents an opportunity for a lawyer to create a case where there is not one.

Possibly, but no one has suggested that course of action nor indicated they've ever done anything like it. The only thing any one here has said is when asked to show a c-card, they show a c-card.

 

[ItsBruce]

On one hand, you say not telling folks you are an instructor is lying and setting yourself up for liability issues yet on the other, you say us telling people you are an instructor is setting yourself up for liability issues.

It was not my intention to say that telling people you are an instructor is setting yourself up. Acting like an instructor is setting yourself up.

Unless I'm teaching, there's no reason for other folks on the boat to know I'm an instructor.

And, I wholeheartedly agree. But when asked for a c-card, giving a lower cert could be viewed as lying.

 

[Web Monkey]

And, I wholeheartedly agree. But when asked for a c-card, giving a lower cert could be viewed as lying.

What about on a dive (cruise ship, for example) that says "Requires OW and a dive within the past 6 months"?

If I show my OW card and a logbook as requested, am I lying?

Terry

 

[ItsBruce]

I've been on two juries, with few exceptions, the type of questioning of which you gave us an example doesn't help the attorney's case, they make him look like he's grasping for straws.

This was worth the price of admission. Walter, I owe you dinner.

 

[Walter]

And, I wholeheartedly agree. But when asked for a c-card, giving a lower cert could be viewed as lying.

No matter how you stretch it, it's not a lie. If you are asked for your highest c-card, I could see your point. I've never been asked for my highest c-card. Even then, what is "highest?" If someone has an instructor card and a tri mix card, I might just think the tri mix card is the highest.