Instructor Liability Thread - split from "Diver Death in HC"

[dwashbur]

That's awful. It just says he was with a class; I wonder if he was a student?

Apart from the blow to his family, I can see the potential for some serious repercussions for the diving community over this one...

[Sounder]

That's awful. It just says he was with a class; I wonder if he was a student?

Apart from the blow to his family, I can see the potential for some serious repercussions for the diving community over this one...

What is it about this death that you feel will cause more serious issues in the diving community in contrast to other diving deaths?

[Sounder]

I heard from Don of Pacific Adventure Charters (Hood Canal) - he wasn't involved and hasn't heard much about it. He did report that while driving along the Canal on Saturday, his wife Diane saw EMS at Mike's Beach Resort.

More to come, I'm sure.

[airsix]

What is it about this death that you feel will cause more serious issues in the diving community in contrast to other diving deaths?

Maybe because the public may perceive a class environment as being supervised and safer than other forms of diving. It's easy to excuse an accident that happens when unsupervised divers are out on their own. The public may erroneously view a class environment as 'risk-free' with no excuse for accident or injury. The info/assumption ratio is too skewed.
-Ben

[Sounder]

It's just too bad. It'll be interesting to hear whether it was a class or not. If it was, I'd be interested to know the instructor, the agency, and what class it was. Someone's will be in a sling.

[CaptnJack]

Maybe because the public may perceive a class environment as being supervised and safer than other forms of diving. It's easy to excuse an accident that happens when unsupervised divers are out on their own. The public may erroneously view a class environment as 'risk-free' with no excuse for accident or injury. The info/assumption ratio is too skewed.
-Ben

In general the agencies have generated a "risk free" perception of scuba. Look at the downward revision of O2 tox limits. Recreationally one tox event is too many, in the military its more of an acceptable risk paradigm. There's not right or wrong amount of risk; assuming its understood.

[dwashbur]

What is it about this death that you feel will cause more serious issues in the diving community in contrast to other diving deaths?

Maybe because the public may perceive a class environment as being supervised and safer than other forms of diving. It's easy to excuse an accident that happens when unsupervised divers are out on their own. The public may erroneously view a class environment as 'risk-free' with no excuse for accident or injury. The info/assumption ratio is too skewed.
-Ben

Exactly. Rightly or wrongly, there are those who will see something like this as an excuse to try and impose a bunch of government regulation and other crap on us, because obviously one accident out of the thousands of certifications that happen each year proves the diving community isn't capable of looking after itself. That's just how some people - unfortunately, many of them with power - tend to think.

[CaptnJack]

Exactly. Rightly or wrongly, there are those who will see something like this as an excuse to try and impose a bunch of government regulation and other crap on us, because obviously one accident out of the thousands of certifications that happen each year proves the diving community isn't capable of looking after itself. That's just how some people - unfortunately, many of them with power - tend to think.

I doubt it. ME's generally don't know diving and its highly unlikely the dive itself will be to blame. More likely a MI or a non-descript non-diving related issue. Which means that it will be hard to learn much from his death. Which makes it even more senseless.

[Sounder]

I wish we had more details but who knows if we ever will. Don & Diane will let us know of anything they hear, but this one seems to be remaining rather quiet.

Stay safe everyone.

[airsix]

There's not right or wrong amount of risk; assuming its understood.

Amen.

-Ben

ps - In case you didn't see it yet, up near the top of your screen you'll notice it reads: "(1 new message)". :hello2:

[girldiver]

It'll be interesting to hear whether it was a class or not. I'd be interested to know the instructor, the agency, and what class it was. Someone's will be in a sling.

I guess that this is "ass"uming that if it's a class situation then the instructor is to blame? Or the agency? Even if it's the BEST agency (whatever your opinion of the best agency) or the best trained, safest instructor...neither have the power to control everything that happens underwater. And any agency or instructor that believes that they can control everything...well, that's plain dangerous. As instructors we should assess the risk, do everything in our power to keep divers safe...but really, the water is bigger and heavier than we are...and the environment is not as "controllable" as some would fool themselves into believing.

[Sounder]

It'll be interesting to hear whether it was a class or not. I'd be interested to know the instructor, the agency, and what class it was. Someone's will be in a sling.

I guess that this is "ass"uming that if it's a class situation then the instructor is to blame? Or the agency? Even if it's the BEST agency (whatever your opinion of the best agency) or the best trained, safest instructor...neither have the power to control everything that happens underwater. And any agency or instructor that believes that they can control everything...well, that's plain dangerous. As instructors we should assess the risk, do everything in our power to keep divers safe...but really, the water is bigger and heavier than we are...and the environment is not as "controllable" as some would fool themselves into believing.

Well the media said he was diving here as part of a class... so that's all we have, at least for now.

If he was diving as part of a class, the instructor and the agency are definitely liable. Depending on the circumstances Mike's Beach Resort and various gear makers could also be included. If it were my dad and it was part of a class, I'd be naming everyone. As an instructor, you are asuming this risk every time you get into the water with a student. This is one reason some instructors insist on diving with students prior to classes and flat-out won't take students into classes if they're known to be maverick (no offense BJ!) or are otherwise irresponsible.

[dwashbur]

It'll be interesting to hear whether it was a class or not. I'd be interested to know the instructor, the agency, and what class it was. Someone's will be in a sling.

I guess that this is "ass"uming that if it's a class situation then the instructor is to blame? Or the agency? Even if it's the BEST agency (whatever your opinion of the best agency) or the best trained, safest instructor...neither have the power to control everything that happens underwater. And any agency or instructor that believes that they can control everything...well, that's plain dangerous. As instructors we should assess the risk, do everything in our power to keep divers safe...but really, the water is bigger and heavier than we are...and the environment is not as "controllable" as some would fool themselves into believing.

Well the media said he was diving here as part of a class... so that's all we have, at least for now.

If he was diving as part of a class, the instructor and the agency are definitely liable. Depending on the circumstances Mike's Beach Resort and various gear makers could also be included. If it were my dad and it was part of a class, I'd be naming everyone. As an instructor, you are asuming this risk every time you get into the water with a student. This is one reason some instructors insist on diving with students prior to classes and flat-out won't take students into classes if they're known to be maverick (no offense BJ!) or are otherwise irresponsible.

It's also why instructors and other leaders in such situations are required to have liability insurance. I'm no friend of the insurance industry, in fact I hate it with a passion, but in our litigious society, it's an unfortunate necessity made just for such situations.

Diving is a risk sport. My family and I recognized that going in, and we fully accept responsibility for the consequences of failure. I made a bonehead mistake over the weekend that had the potential to cost me big: I got in a hurry (never a good idea) and somehow neglected to fasten the waist straps on my BCD. I knew something felt weird during the dive, but didn't discover just what an idiot I was until I got out. Thankfully, nothing bad came of it except some major embarrassment. It's not the first mistake I've made, and it won't be the last. But every time I put my reg in and deflate my BC, I do so with the full knowledge that there's a chance I might not come back from this. It's a risk I'm willing to take, because the rewards for that risk are too phenomenal not to go for. But I would hope that, if something did happen to me, my family would recognize that I took the risk of my own free will, knowing there are a zillion things that could go wrong and that the environment I chose to insert myself into was not only lethal but hostile, and wouldn't try to put any blame or liability on anybody but me.

But that's just me rebelling against The Way Things Are again...

[Zen Diver]

As an instructor, you are asuming this risk every time you get into the water with a student. This is one reason some instructors insist on diving with students prior to classes and flat-out won't take students into classes if they're known to be maverick (no offense BJ!) or are otherwise irresponsible.

Whether you are diving with a potential student or actual student, as a dive professional, you will always carry liability because of your status.

-Valerie

[Joshua Smith]

Well. I just "split" my first thread. Let's try and keep this thread on the topic of general "instructor/ agency liability" issues, and keep the original one about the actual death that just occured, so as to keep that thread, respectfully, uncluttered.

[CaptnJack]

Are DMs and instructors actually held to a higher standard even when not acting in that capacity (just diving for fun)? I'm not talking hypothetical, we have lawyers here, is there precedent for this?? Not gross negligence like taking an AOW student to 200ft on a single AL80 of air, more like a panicked diver on a boat who embolizes. Have courts held instructors or DMs to higher standards under the proverbial shotgun lawsuit than "Joe rescuer" in the group?

[Sounder]

Are DMs and instructors actually held to a higher standard even when not acting in that capacity (just diving for fun)? I'm not talking hypothetical, we have lawyers here, is there precedent for this?? Not gross negligence like taking an AOW student to 200ft on a single AL80 of air, more like a panicked diver on a boat who embolizes. Have courts held instructors or DMs to higher standards under the proverbial shotgun lawsuit than "Joe rescuer" in the group?

I, too, and curious about this. From what I understand (which is probably incomplete at best), there can be liability if the DM/Inst. was present and witnessed an incident while doing nothing to help. I've also been told that there is liability if you're even on the boat, but my wife says that if I'm diving (following the completion of my DM) and someone else has a problem while I'm uninvolved that it's not my problem. Doesn't mean I can't be named in the suit, just means there is an argument in my favor. There definitely is a connection if it is IN a class setting, but I am very interested in what our attorneys have to say about being outside a class setting.

[dwashbur]

Well. I just "split" my first thread. Let's try and keep this thread on the topic of general "instructor/ agency liability" issues, and keep the original one about the actual death that just occured, so as to keep that thread, respectfully, uncluttered.

Okay. It threw me when I saw the new thread and the notation that it had been started by me. I wondered if I had had a lot more rum tonight than I thought!

As far as the topic, I don't know if DM's and instructors are held to a higher standard even when they're not with students or other charges in a professional capacity; I do know that my wife and I have just completed our NAUI DM rating and are waiting for the paperwork to process, so it's a relevant question for us. If anybody knows the answer, please enlighten us!

[gcbryan]

I'd like to hear from an attorney as well. I know that a lot of DM's are under the impression that they have potential liability just because they are present (even on vacation). I don't see how this can be the case. I think the only liability is in a class situation.

If it's a recreational dive not associated with a dive shop or a prior student how would having a DM cert create liability?

If you really think about it a DM cert doesn't imply any greater dive skills because the skills that one need to become a DM are essentially those taught in OW they just have to be mastered to demonstration quality. Their teaching/leadership skills should be improved by becoming a DM but again it's hard for me to see how this would imply any greater liability outside of a class situation.

[girldiver]

As far as liability...I'm not a lawyer...but a few years ago at a Vicencia & Buckley seminar at DEMA, I was awakened to the fact that even if I announce that "I'm not diving as an instructor today" and I go for a "fun dive" with a diver, if something happens...I can still be named as "an instructor", thus held to higher standards. They STRONGLY recommended that even on fun dives, the liability release forms get signed.

Obviously, this can be highly awkward, and I'll admit that I don't do this on a continual basis like I should. But with any new diver that "shows up" for a fun dive with me and my friends, there's a form signed. Honestly though, even my friends that I dive with...if they have an incident, and I'm in the water with them, well, I can be held liable. Their family can sue me. If the form isn't signed on each and every dive, it makes it a whole lot harder for the lawyers at V&B to do anything.

As for my previous post...didn't mean that the instructor couldn't be named in a lawsuit...(that's what the insurance and the release forms are for)....just meant that outside of litigation circles, the instructor or DM's cannot control everything that happens underwater. In any given situation, things can happen on a dive that are outside of a dive professionals control, and while we'd like to think we're "god" under the water...we aren't.

Now, that said, negligence is an entirely different matter. But don't assume instructor negligence whenever there is an incident with a student. Negligence is taking a student to depths beyond their training level, or the level in which the instructor is trained to teach on gear not suited for the environment.

Also, any of the new DM's that are looking at this incident...this is why you need to have insurance that covers you in all situations. Not just when you're DM'ing for your shop. It's part of what you're committing yourself to as a DM. The DM program isn't about improving your dive skills so that you can look good in a pool. It's the entry rung of the professional ladder. We don't see it here, but DM's in tourist areas are fully in charge of leading dives for decent size groups of very occasional divers. There is just as much responsibility put on their shoulders as an instructor. They just aren't teaching new skills.

DM'ing can be fun. You get the respect of a pro...don't have to do all of the paperwork or "take on the liability" of an instructor, right? Here's the release form: BY THIS DOCUMENT DO HEREBY EXEMPT AND RELEASE MY INSTRUCTOR(S), DIVE MASTER(S), THE FACILITY THROUGH WHICH I RECEIVE MY INSTRUCTION Dive ...so what would happen if you were diving with a newbie diver...not in a class situation...no form signed?

If you enter into any type of DM/student relationship with another person, then they could hold you liable. This relationship could be anything from giving advice on the best way to put on fins while on the boat, to what to look out for on the wreck, or even advice on how to clear your ears as you decend. Anything that puts you in a position of teacher/student, professional/amatuer, advisor/advisee makes you liable from the get go.

Welcome to professional dive insurance for life!!

[Peter Guy]

If there is an attorney reading this who happens to have some expertise in Washington liability law, I'd certainly appreciate a response.

That written, here is my understanding of the law in Washington (and, in all actuality, in most other US jurisdictions):

1. Scuba diving is known to be an "inherently dangerous activity" and people who participate in the activity "assume the risk" of "reasonably knowable dangers" associated with the activity. Where the written liability release comes in handy is that it can define the scope of the "reasonably knowable dangers" of Scuba diving. (Hmm, is being left behind a reasonably knowable danger -- THAT appears to be the question of the California lawsuit set for trial in June.)

2. A participant is generally held to the "standard of care" consistent with that person's level of training and experience. THEREFORE, someone who is a DM, AI, Instructor, etc., WILL be held to a more strict standard of care BECAUSE they have a more advanced level of training and experience than the "average" diver. But, as with most legal issues, that doesn't answer the problem -- as Sounder's wife implied. But, yes, a DM should be/will be held to a higher standard than the non-DM.

3. That written, the issue in most dive situations is -- WHAT is the standard of care owed by one diver to another. IF the DM doesn't owe any duty to the other diver, then it doesn't matter what the standard is -- no duty, no liability. But then, what is the "duty of care" owed by one diver to another? I DON'T KNOW AND I'M NOT SURE IT IS KNOWABLE!!!! Certainly the basic standard to "do no harm" is clear -- as is the basic standard if the person is a student/client. BUT, in the typical charter case, does a diver, who happens to be a DM, owe a duty to another, NON-BUDDY, diver? Probably not -- but, ???? That is a fact question to be decided.

4. Every diver who is interested in this issue should read and think about two Washington court cases:

Boyce v. West where the Court held liability waivers WERE valid!

Rasmussen v. Bendotti where the Court held a buddy DOES have a duty of care towards the other buddy.

I'll leave it to others to determine whether I am "an attorney" with sufficient understanding to actually write this!

[Sounder]

Peter - you're certainly the most qualified to answer this question yet!! Thank you for your response.

Funny - Mrs. Sounder never has a problem signing liability waivers... she says if someone who is supposedly "protected" by the liability waiver does something reckless or negligent, that even the best assumption of risk waiver in the world won't be worth the paper it's written on. Outside of that, her general feeling is assuming she and I will not do something reckless or negligent so we're protected both ways.

[BDub]

Peter - you're certainly the most qualified to answer this question yet!! Thank you for your response.

Funny - Mrs. Sounder never has a problem signing liability waivers... she says if someone who is supposedly "protected" by the liability waiver does something reckless or negligent, that even the best assumption of risk waiver in the world won't be worth the paper it's written on. Outside of that, her general feeling is assuming she and I will not do something reckless or negligent so we're protected both ways.

Which is why it was hammered into me during my dm and instructor training that the standards must be followed to the letter. Should an accident occur, if you are following standards your liability insurance will cover you. Break standards and an accident occurs, you're on your own, or at least that's the way I understand it.

[girldiver]

So...in the issues of "buddy-diving"...class aside, for a moment...would a dive professional be held "to standards" if a dive accident should occur?

For example: A dive instructor who dives with the same 3 or 4 buddies on a continual basis. Not his students...just friends. They are hitting depths (180+) they aren't trained for, on equipment not designed for those depths. Something happens. This isn't the "instructor takes trusting students down" scenario...this is an actual current scenario that (thank goodness) hasn't resulted in a calamity yet.

Would he be liable..."held to standards"...when off the clock? Is there EVER any "off the clock" for a dive professional?

Or, a novice diver shows up at a dive site where an instructor is planning to go on a dive with a friend. "Fun Dive"...Ii think we call it. The instructor needs a release signed by the unknown, correct? And what about the friend? How zealous should instructors/DM's be about the releases?

[Tom Nic]

Makes one wonder about the advisability of even getting the DM cert if you don't plan to become an instructor or work in a shop. Sorry if this flies in the face of always moving a diver up to the "next level"... but this does put a bit of a damper on it.

This from someone who is in the middle of their DM and thinking about this.

I know lots of instructors who make it a point that they don't show their Instructor card while on vacation... for various reasons... But what I'm hearing here is that it doesn't matter if you show it or not, you'll still be named.

Tort Reform! Please!