DM Liability

[HammerNoMore]

Then feel free to do the research. I made a factual statement: If a country doesn't have good samaritan laws, you open yourself up to liability by aiding an injured person. I didn't say not to help people, just pointed it out in opposition to other areas where good samaritan laws require you to come to aid. If you want to find a specific exmaple involving a diver, be my guest, but I fail to see why that kind of time and energy should be required of me?

Most of the countries that don't have good samaritan laws don't have their legal cases on the internet so it's going to take quite a bit of leg work.

I can easliy find you dozens of cases here in the US were people were sued and went through the entire legal process, including multiple appeals, at great expense but were "spared" because of our good samaritan laws. That is why we have these laws.

Are you suggesting that countries that have them are the only ones where people would attempt to profit at the expense of others?

Are you suggesting that the US Goventment would recommend not coming to the aid of others without actual incidents of the good samaritan being punished for such actions?

James

 

[voop]

Yes they are, or at least should be lol in the IDC.

If I dive overseas on holiday and Im not teaching then then as far as anyone needs to know I've got my advanced and rescue quals and they can see those cards. Otherwise as a DM or an instructor on holiday and paying to fun dive you can easily find yourself getting pushed into supervising other divers in the water.

As for a DM / instructor's responsibility when they're working, you wouldn't be respnsible for example if an incident occured inwater to another company's divers... your responsibility as a hard and fast rule is to look after your divers first and foremost.

Actually, I remember asking the course directors that very question when I did my IDC. We were told to always disclose our credentials to the staff on any dive boat or dive center we'd be diving with, but also insist on "I'm on holliday". The point in disclosing credentials was, that (i) if an accident happened, it's very likely that being an instructor would come out anyways (check with agencies etc.) and then (ii) once the cat was out of the bag, not having been up front might mean that a rescue effort would be less efficient coordinate. Which would then mean that one could be considred negligent in (in some way) preventing an efficient rescue effort.

I've always been up front when asked about my certifications, and I've always just said "I'm on holliday, and a paying customer, so..." Only twice have I been asked to help, taking care of another client. Once I said "no" firmly, since the dive was imprudent for a new diver to do -- the other time I said yes, following which I "got the dive for free" (no pay for 'trox, transport or lunch).

 

[michaelp68]

Then feel free to do the research. I made a factual statement: If a country doesn't have good samaritan laws, you open yourself up to liability by aiding an injured person. I didn't say not to help people, just pointed it out in opposition to other areas where good samaritan laws require you to come to aid. If you want to find a specific exmaple involving a diver, be my guest, but I fail to see why that kind of time and energy should be required of me?

Most of the countries that don't have good samaritan laws don't have their legal cases on the internet so it's going to take quite a bit of leg work.

I can easliy find you dozens of cases here in the US were people were sued and went through the entire legal process, including multiple appeals, at great expense but were "spared" because of our good samaritan laws. That is why we have these laws.

Are you suggesting that countries that have them are the only ones where people would attempt to profit at the expense of others?

Are you suggesting that the US Goventment would recommend not coming to the aid of others without actual incidents of the good samaritan being punished for such actions?

James

Actually, James, you should have already done the research because you made the representation. You made a factual statement that you are apparently unable to back-up.

You said people are liable for lifting a finger. You didn't say they get sued. You said they are liable.

So, if you can, back it up. I bet you cannot find liability unless it was a professional who violated a professional standard.

Your statement that assisting someone might open you up to liability or to being named in a lawsuit is, of course, correct. For professionals, that is what their insurance is for. The insurance will pay the legal expense. And if a professional clearly violates a professional standard, they should be liable.

As for non-professionals, they're generally protected by good samaritan laws.

Assisting people does create the possibility of getting dragged into a lawsuit, though. Most people are aware of that, but it's good for you to point it out in case some are unaware of it.

But you said that in some places people have been found liable for lifting a finger. You have not provided any information or basis for that. When has a non-professional been liable? When has a professional been liable unless they've violated a professional standard?

You made the representation to the public. Can you back it up?

Michael

 

[HammerNoMore]

Actually, James, you should have already done the research because you made the representation. You made a factual statement that you are apparently unable to back-up.

No, I made a statement that is clearly correct but do not have the desire to reasearch third world legal cases in order to satisfy your request that I provide a specific example with narrow paramaters.

You said people are liable for lifting a finger. You didn't say they get sued. You said they are liable.

Yes, I did.
Once again you feel that I am obligated to do research for you so let me thow you a bone and look up liable for you:

liable - At risk of or subject to experiencing or suffering something unpleasant.

Your statement that assisting someone might open you up to liability or to being named in a lawsuit is, of course, correct.

Ok, now your arguing with yourself.

As for non-professionals, they're generally protected by good samaritan laws.

Ahh, well then, please provide me with proof that every county has good samaritan laws. You are lucky enough to live in a country where every state has good samaritan laws and a few have duty-to-rescue laws. This is not so for many countries.

But you said that in some places people have been found liable for lifting a finger.

Really? Please point out where I said that. I made no such representation, though I do not doubt that it is true.

 

[AzAtty]

Remember that my comments are limited only to U.S. law generally. European law is a whole different matter.

On the issue of a "good Samaritan" stepping in and getting sued for rendering aid, there are many instances of such occurrences. In fact, the concept is contained in §324A of the Restatement (Second) of Torts, which most states in the U.S. follow absent contrary case law or statutory law: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to [perform] his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking."

In plain English, under the common law in the U.S., a person has no duty to render aid or rescue another. However, if a person decides to "rescue" another, the rescuer voluntarily assumes a duty of care towards the victim. If the rescuer is negligent and the victim suffers injuries because of the rescuer's negligence, the victim can sue the rescuer to recover damages.

Now, just to throw you all for a loop, §324A is referred to as the "Good Samaritan doctrine." So when we talk about "Good Samaritan laws," we could be discussing §324A or we could be discussing statutory "shields" available to a "good Samaritan."

Various state legislatures perceived that suits against "good Samaritan" rescuers would dissuade rescuers--particularly doctors--from taking actions that could benefit victims. Therefore, they enacted laws to shield a rescuer from civil tort liability if the rescuer happened to be negligent in rendering aid. However, the Good Samaritan "shield" laws can be quite narrow in coverage. In Arizona, only EMTs, doctors, and nurses are shielded from liability. In California, there are several different good Samaritan-type statutes, and one contained in the Business & Professions Code only applies to doctors who act in good faith. So you really need to check local laws to determine the existence and/or scope of those laws.

When would a DM fall under the good samaratin laws in the US?

I assume you mean a statutory exemption for liability for negligence. The answer is: it depends upon the state where the DM is acting, and it depends upon what the DM is doing. I know that's a very imprecise answer, but that's really the only answer that can be given to a broad question. Unfortunately, the answer to a legal question can change depending upon the facts. For instance, a seller of a house recently came to our firm and asked if he could terminate the contract because the buyer had failed to pay rent under an early possession agreement. Our real estate specialist answered "yes." But that answer changed to "no" when some other facts were added to the mix.

DM and Instructor training will highlight the legal issues. PADI publishes "The Law and the Diving Professional," and it covers the basics. But in any law course you only get a rough idea of what the law is. For example, during my MBA program we had to take a business law class. The next year in law school, I discovered that the "law" as taught to us in the MBA program was less than entirely accurate. Legal analysis and precision are not the goals of a general law class, but such courses are designed to make a student aware of the legal issues the student may face.

I'll be teaching a business law class next semester, and I've decided that my opening statement on the first day of class will be "in this class, you will learn to call your lawyer."

 

[HammerNoMore]

However, the Good Samaritan "shield" laws can be quite narrow in coverage.

I was really close to pointing this out in my previous post, but I didn't want to stir the pot any more than it already was ...

 

[michaelp68]

Bottom line, James, is that you made a representation to the public on this Board about liability. Your words were:

"However in many parts of the world if you so much as lift a finger to help, and a person suffers ill effects because of, or in spite of your aid, you are liable."

On this English speaking Board, people generally consider being liable to mean having a legal obligation to pay money damages.

According to Black's Law Dictionary, Sixth Edition, the term liable means, "Bound or obliged in law or equity ... to make satisfaction, compensation, or restititution."

Obviously, the common understanding of the word and the legal definition of the word are consistent with each other.

As you well know, if you are found to be legally liable, then you're going to be legally obligated to pay money damages as compensation.

So, dance around it all you want. I asked you to support your representation and you cannot. Other than a professional diver who violates a clear professional standard, where has a diver been liable? If you cannot answer, then your factual representation is just an unfounded guess that you, as a Moderator, put out as a representation to the public about the law.

I question the appropriateness of you informing people that by lifting a finger to help, they will be liable. Why would you even advise people about the law when by your own admission, you have not researched this and cannot back it up?

Getting dragged into a lawsuit? Yes, be concerned about that.

Being liable? No. So don't represent or advise that divers will be liable when you have no information to support your claim.

Michael

 

[michaelp68]

I was really close to pointing this out in my previous post, but I didn't want to stir the pot any more than it already was ...

What this post and AzAtty's post shows is how complicated this issue is.

These laws and liabilities for anybody rendering assistance change from state to state, and country to country. The Good Samaritan Doctrine changes from jurisdiction to jurisdiction. Sometimes, it's quite narrow in the protections offered. Sometimes, it's non-existent. Other times, it's very broad and protective.

Professional and non-professional divers are aware that by rendering assistance, they might be dragged into a lawsuit. Divers should keep this in mind and make their own decisions on whether to assist.

Nobody wants to get dragged into a lawsuit. But it could happen and it costs money.

However, I'm still unaware of any situations where a diver has been found liable for rendering assistance where a clear standard was not violated.

Michael

 

[Mako Mark]

Phew........

perhaps we should start a lawyers forum and lock them all in there.

 

[michaelp68]

Phew........

perhaps we should start a lawyers forum and lock them all in there.

Not a bad idea. Then we could spend all our time arguing in the forum instead of suing people in the real world. I think you're onto something.... :11: