Instructor liability?

[leapfrog]

..............but criminal is a leap for me.

Hey, I ain't done nothing, officer, I swear...:joke:

 

[seaducer]

...snip

For example, An instructor has been trained in handling distressed divers without putting himself at risk, so has skills to assist in situations that would be too risky for someone without that training. If you have the skills and the training to do it without becoming another victim, you do have a legal obligation protect the lives of those around you...

I am going to disagree with some of what you said. For one thing, I do not think anyone has training that will enable them to assist distressed divers "without putting himself at risk". Anything can and often does happen in stressful situations. The training reduces the potential risk, but does not eliminate it at all.

Second, just because you have the skills and training does not obligate you to help somone. You are under no legal obligation at all just because you are trained.

Now, in a class environment, the instructor does have an obligation, but that is in class only. Just out on a dive where the pro is not being paid, he has no more an obligation than say, a rescue certified diver, or just an owd.

In the OP's scenario, there should be no legal action taken against the instructor, as he has done nothing illegal. One could argue that the instructor has had to demostrate knowledge of DCS, and if he failed to act to keep #2 out of the water I am sure some lawyer would attempt to convince a civil court of his financial obligation to the family of #2. I would only agree with a small settlement if it turns out teh instructor coerced #2 to dive, abusing the trust an instructor gains by having the title, and tells #2 that he is safe to dive after all.

Again, my stance, if he fails to recognize the danger and at least try to stop the action, perhaps he should be considered unfit to lead and/or instruct divers for any agency.
If he told #2 that he was safe to dive after #2 questioned his ability to safely do so, he should absolutely lose his pro certs, and quite possibly is liable for some damages in a civil court (I do not like civil courts but I understand some damages can sometimes be justified).
Unless he forced #2 to dive, he should not be held criminally liable at all. #2 as a trained diver who has had demonstrate at least rudimentary knowledge of DCS in order to get a c card should have known better in the first place. IF, and only IF submits to what he considers a more educated person's opinion should there be any action by a court.

 

[seaducer]

Had I been diver 1 I would have refused to dive with diver 2 and would have advised the boat crew or dive shop to refuse him or her any tank fills. I would have stopped diving myself, as well, if we had been diving the same profiles.

I would do the same more or less. I would probably continue to enjoy my diving, but not with this person...

 

[Dtaine]

I don't know of how anything in the OP's hypothetical is criminal, stupid yes, but not criminal. In a civil case though the instructor rating might make a difference in any liability.

 

[Garrobo]

Only you can decide if you are going to dive.

 

[Web Monkey]

So.... the physician now tells me that this behaviour indicates (at best) negligence on the part of Diver 1, and supposedly, should the family of Diver 2 decide to press charges, Diver 1 can be convicted of manslaughter. (or at least the Austrian equivalent thereof)
I asked why this is, because Diver 2 was not an inexperienced diver and chose to do this type of dive. Additionally, the student-teacher relationship had ended years before.
Doesnt matter, says the Doctor. He maintains that as an instructor, Diver 1 will always be held to a higher standard of behaviour, and should be held responsible for the consequences, especially as he and Diver 2 had been diving buddies many times: Diver 1 should know his partner's level of fitness.

Diving a day after a DCS hit is absolutely stupid on the part of both divers. O2 is First Aid, not Treatment, and diving the day after a hit is just plain dumb.

And yes, the instructor should have known better, but then the dead guy should have known better too.

Terry

 

[MXGratefulDiver]

Bigger issues here than liability ... stupidity comes to mind as the primary cause of death.

The instructor doesn't sound very qualified to teach ... sounds like he's got some hormonal challenges that led to an inability to make good decisions.

... Bob (Grateful Diver)

 

[fisheater]

Diver 1's duty & breach arose when he "urged" Diver 2 to dive the day after a DCS hit, which he knew all about.

ALL divers (and everyone else for that matter) have a duty to act as a reasonably prudent person of like training and experience in the circumstances. It wouldn't be too hard to convince a jury that no reasonably prudent diver, let alone an instructor, would urge someone to dive the day after a DCS hit, especially one not treated by any physician.

This isn't a situation of determining whether a diver with a pro credential had a duty to step in and save some other diver's rearend. This guy actively placed a diver in peril.

Was Diver 2 also negligent? Sure. However,that wouldn't prevent a civil recovery from Diver 1 by Diver 2's heirs. (At least in the U.S.) It would simply reduce the amount of the judgment by the percentage of Diver 2's fault.

 

[wreckchick]

It has always been my understanding that if I witness or participate in dive activities and anything goes awry, I am required to act to the limit of my ability and training otherwise my failure to act is negligent.

Rachel

 

[fisheater]

It has always been my understanding that if I witness or participate in dive activities and anything goes awry, I am required to act to the limit of my ability and training otherwise my failure to act is negligent.

Rachel

The general rule in the U.S. is that, unless you have a special relationship (e.g., parent-child, dive buddy, instructor-student, etc.) you do NOT have a duty to come to the aid of others. The idea is that your interest in liberty, the ability to be left alone, is greater than the victim's interest in preservation. (Funny how that works out.) However, this isn't true if you contributed to the peril. Then, you do have a duty to intervene &/or call for help to the level of your abilities and training. E.g., if you run into someone with your car, you have to help or seek help.

Further, if you do start a rescue or start to obtain help, you have a duty to follow through with your actions and act as a reasonably prudent person with your level of training, experience and abilities would.

Example. A diver, unconnected to you or your team, is at the surface, waiving his hands, MOF and screaming for help. You look around and see that no one is doing anything. You jump in the water and swim half way out. Then, you start thinking that you don't want the liability of having to deal with the distressed diver and turn around and swim back to shore. Ooops. You're in it now, as you didn't follow through on the rescue you initiated.

Personally, I wouldn't, couldn't and won't sit there and take no action to assist anyone else in peril. Legal duty aside, I feel a great moral one.

Thus, I know that I need to prepare myself to act properly in case I am faced with the situation of someone else in peril.