DM Liability

[Diver0001]

....snip....

If it is any comfort, there is no reported case in the United States where a DM has been held liable for an accident when s/he was merely a bystander (at least that I have found in my Westlaw searches) .

Are you saying that in the US no divemaster has ever been dragged through the system?

R..

 

[AzAtty]

Are you saying that in the US no divemaster has ever been dragged through the system?

R..

No, I'm saying that there is no REPORTED CASE in which a DM has been found liable for an accident when the DM is a MERE BYSTANDER.

When I say that no "reported case" has held a DM liable under the circumstances cited, it means that if the issue of DM liability has been appealed to an appellate court, the appellate court has chosen not to make its ruling "precedential" by publishing it. Precedent is case law that can be cited in future legal proceedings as authoritative statements of the law. The lack of a reported case means (1) the issue has never been raised at the appellate level (meaning that if the issue was raised in the trial court, no one deemed the issue worthy of an appeal or all parties were satisfied that the judge ruled properly; or (2) the appellate court believes that issues are sufficiently addressed in other case law; or (3) the appellate court does not believe its ruling on the issues is sufficiently important to publish.

In a case of first impression, meaning it's the first time such an issue has been presented, appellate courts will usually publish their opinions so as to provide guidance on an issue and to set up the issue for review by the Supreme Court.

If a bystander DM were held liable for injuries caused because he didn't step in and correct improper instructions or standards, that case would be appealed and reported. Why? Because such a decision turns a couple centuries of law on its head. It would be such a perverse diversion from the current state of the law that the DM would almost certainly appeal the issue because that decision would be based upon a pretty clear error of law.

This does not mean that a DM has never been sued. In fact, the Tancredi v. Dive Makai case out of Hawaii involves a DM getting sued (along with the dive shop) for the death of a diver. The lack of cases simply means that no appellate court has ever recognized a common law duty owed by a bystanding DM to any unaffiliated persons.

 

[DiverDunk]

While I don't dispute your legal research, there are a couple of cases here where DMs have ended up in court just by being in the proximity of an accident. Ultimately, I don't believe they were found to have any liability, but running the risk of being dragged into a courtroom just for being a DM in the wrong place at the wrong time is a concern.

Another concern for DMs here is when you are the DM on a dive boat. Now in this case, as the boat's DM, there is responsibility, but in SoCal most boats have a fairly large number of divers and the dives are not escorted by a DM as in many other places. So the DM is on the deck with 15 divers in the water doing who knows what and he is responsible for their safety - right?

Once you stick your nose into something, you assume whatever duty of care applies to the situation. If you are a professional or quasi-professional (e.g. a divemaster) you assume the duty of care applicable to such a professional, which is invariably more stringent than the duty owed by the average joe on the beach who undertakes the task.

 

[michaelp68]

I've also searched and haven't found any reported cases where a divemaster was found to be liable for a diver's injuries when the divemaster was nothing more than a bystander.

 

[Diver0001]

....snip...

If a bystander DM were held liable for injuries caused because he didn't step in and correct improper instructions or standards, that case would be appealed and reported. Why? Because such a decision turns a couple centuries of law on its head. It would be such a perverse diversion from the current state of the law that the DM would almost certainly appeal the issue because that decision would be based upon a pretty clear error of law.

So if I read you right as long as you sit on your hands, even if someone dies that you could have saved, then you're covered for liability. Sounds a little cynical to me.... Do other laws apply in that case?

This does not mean that a DM has never been sued. In fact, the Tancredi v. Dive Makai case out of Hawaii involves a DM getting sued (along with the dive shop) for the death of a diver. The lack of cases simply means that no appellate court has ever recognized a common law duty owed by a bystanding DM to any unaffiliated persons.

Thanks for taking the time to explain some of this stuff.

I wish that the DM course was more thorough in explaining the main lines in the region where you live. I live in Holland and I've been told that you have a duty to act here, even as a bystander. I'd really like to know how I could fish out the relevant bits of law without having to read 15000 mind numbing pages of irrelevant information in the process....

R..

 

[jagfish]

It's kind of a tricky area if you're at a dive site and you see people violating standards & not following appropriate procedures. As a professional, you should speak out and bring up the issue with the other divers even when they're not associated with you.

I'd have to agree with another poster that says this is a situation to stay away from. First, when you speak of "standards", they are often different from one agency to another. What PADI considers a "standard" could be very different from GUE, for example...

JAG

 

[Diver0001]

I'd have to agree with another poster that says this is a situation to stay away from. First, when you speak of "standards", they are often different from one agency to another. What PADI considers a "standard" could be very different from GUE, for example...

JAG

LOL

Just imagine party crashing an advanced GUE class screaming "WHERE ARE YOUR SNORKELS YOU CRAZY BATSARDS!!! *YOU* *NEED* *YOUR* *SNORKELS!!!*"

R..

 

[jagfish]

LOL

Just imagine party crashing an advanced GUE class screaming "WHERE ARE YOUR SNORKELS YOU CRAZY BATSARDS!!! *YOU* *NEED* *YOUR* *SNORKELS!!!*"

R..

Exactly the situation I had in mind!!!!!!!!!!!!!!!!

JAG

 

[dweeb]

Absolutely not!!!

You can only get sued if you have direct involvement in the accident.

Wrong. First of all, you can be sued anytime for anything.
That doesn't mean the suit has a chance of succeeding, but you'll still need to hire a lawyer just to cover yourself.

Does that mean you can't get named in a suit? No, you can still get named. But if you were not part of the situation, then you will be dropped from the suit.

Only after your lawyer generates expensive billable hours pointing out the wisdom of dropping you to the court or the plaintiff.

For example, there are stories that DMs and instructors can be sued when an accident happens when they are on vacation and NOT supervising the other divers.
Another reason to buy liability insurance.

And some of these succeed. Was there a problem that caused the accident, and was it apparent before the dive? Leadership courses train you to observe other divers and catch the signs that an accident is probable. With that knowledge, you are held to a higher standard of a reasonably prudent person.

 

[dweeb]

Right, but getting yourself extracted from such legal entanglements is not free. Does liability insurance cover legal fees in the event you are found to have no liability?

Most policies include legal defense costs, because absent a good defense, the insurance company will have a big claim to pay.