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

[BDub]

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?

I honestly don't know the legal side of that, Cindy. Fortunately, that's not something I would do anyway, so I don't need to worry about it on a personal level. Is this an ow instructor? Is he technically trained? From your example, I'd assume he's not technically trained, nor are his buddies. In that case, I personally think he's really opening himself up to some major problems. It could be argued that an instructor, of all people, knows the importance of staying within your training and skill level as he's (hopefully) stressing that to his/her students continually. He's obviously diving beyond his training and knows better. Even if his buddies don't know any better, he does. Whether he wants to discourage them from doing that kind of dive is up to him (he has no legal obligation to do that, some may say he does have a moral obligation), but he certainly shouldn't be doing those dives with them, at a minimum. Personally, I don't think he should be doing those dives at all, but that's another discussion.

[Sounder]

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.

I sure hope these f-ing morons aren't part of our board. Let me guess, Al80s with air and a pony bottle? (Tom, I feel a rant brewing)

This is a good question - seems if they're repeatedly doing profiles like this, they're showing that they're ok with it. If it was a one-time thing where the friend encouraging the others to go was an instructor (as was in another recent death), I imagine there would be more liability on the instructor. I do see an argument, however, for the family of whomever dies first (diving like this, it's only a matter of time... stopping again before the rant) saying that the instructor should have known better and discouraged the others from diving. It wouldn't be difficult to establish that people look up to instructors and may believe that "if an instructor does it, it must be fine." If it's a jury trial, all you have to do is convince them.

A good friend of Mrs. Sounder (and me) is an attorney who minored in drama during his undergrad. He learned to be proficient in gaining the jury's favor though his experience in drama classes (and a drama minor was a great place to pick up girls in college).

[dwashbur]

OUr DM instructor has told us repeatedly that, wherever we go to dive, DON'T tell anybody we're DM's. When we make it to Instructor, likewise: don't tell anybody. He says that even if you're not working in a professional capacity, if somebody knows you're at that level, someone on the boat or in the group or whatever is going to expect something more out of you than just being another diver in the group. Looking at this thread, I can see the wisdom in that philosophy. At the same time, it strikes me as kinda sad to go through all that work and training and then have to be afraid to tell anybody because one of them might be or be connected to an ambulance-chaser.

Something's very wrong with this country.

[BDub]

OUr DM instructor has told us repeatedly that, wherever we go to dive, DON'T tell anybody we're DM's. When we make it to Instructor, likewise: don't tell anybody. He says that even if you're not working in a professional capacity, if somebody knows you're at that level, someone on the boat or in the group or whatever is going to expect something more out of you than just being another diver in the group. Looking at this thread, I can see the wisdom in that philosophy. At the same time, it strikes me as kinda sad to go through all that work and training and then have to be afraid to tell anybody because one of them might be or be connected to an ambulance-chaser.

Something's very wrong with this country.

I typically don't tell ops I dive with that I'm an instructor. The op I dive with in Maui all the time knows I am, but I usually just use a tech card or something. However, I don't do that for liability reasons...I do it because I don't want there to be any expectations of me. I'm there to dive and have fun, not teach or lead. However, if something did happen, it would eventually come out that I was an instructor, whether I made it known from the beginning or not. So, I don't keep it quiet to avoid liability, I do it for convenience. The lawyers will find out eventually either way.

[Peter Guy]

Please people, read the two cases -- they ARE in English and really should be easy to understand.

Re the instructor who is diving with friends beyond his, and their, "training." (And I put "training" in quotes because I'm not sure what "training" is needed to dive to "X" depth using "Y" gas -- which was the point of a thread on another board.) First, remember the basic rule in Washington -- Scuba diving has no "societal good," is an inherently risky endeavor and thus all participants assume the reasonably foreseeable risks associated with the endeavor. The only benefit of having a signed waiver is that you may be able to "prove" what were the "reasonably foreseeable risks" a bit more easily should that be necessary.

Second, each buddy has a DUTY OF CARE to the other buddy and is negligent if she breaches that duty of care (whatever it may be). In this case, there may be a duty of care to "just say no" to diving beyond "recreational depths" under the stated circumstances. That is, as they say, a question for the trier of fact.

On the other topic of keeping your DM/Instructor status "quiet" -- to what end? You'll still have the duty of care to your buddy which is based on your status whether revealed or not -- so why not identify it and then take control? And, as someone else wrote, IF you are on a charter and "they" attempt to pawn off a "hard case" to you because you are a professional, just sweetly say, "Well sure, just pay me my rate, the charter is now free and, yes, I need payment, in cash, upfront!"

If I didn't make the point earlier, I really think the best course is just to dive within your skill level, whatever that may be.

[mattwave]

Let me take a stab at this one. I have been led to believe by NAUI that yes there is a difference concerning "Duty" as a dive professional and a civilian diver. Liability is always decided in court or in the admission of liability. As for the non class dive or the fun dive where the dive professional is not in the immediate area or a part of the group, it would be safe to say a court would not find the dive professional under breach of duty or proximate cause. As stated earlier on in this thread a dive professional has an obligation to perform within his/her abilities to better a bad situation if they are in the area or requested to do so. If the dive professional refuses to assist or is found negligent in their actions, it would be likely that the court may find them liable. Furthermore any suggestions or recommendations made by a dive professional especially in writing (ie on a forum) that puts a diver of less ability or certification in danger or is a proximate cause of an accident then yes the court may find that dive professional liable, but they may find a civilian diver within the same parameters liable as well.

It is safe to say that anyone can be sued and held liable in court no matter their dive certification, although an Instructor's teachings may be called into question well after a student has completed his/her course and has an accident following such instruction - even-though the instructor was no where near the accident. (That's the scary part)

As stated by Brian, following standards "To the letter" is very important and those standards are always in writing and no person's interpretation will release you from violating them in the eyes of the court.

The news of this tragedy is troubling, I hope an accurate account of the incident will be drawn.

[Nwbrewer]

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!

Tom, I think that's one of the great things about NAUI's Master diver course. It's supposed to be the skills involved with a DM type class without the teaching portion, and no "Dive Professional" label.

It allows you to move up to the "next level" without taking on the responsiblities (legal and otherwise) of a DM. I think that as I take more trianing this will probably be the direction I go. I don't mind helping out newer divers, or even leading dives with buddies unfamiliar to a site, but I have zero interest in doing it in a profesional capacity.

Jake

[CaptnJack]

a dive professional has an obligation to perform within his/her abilities to better a bad situation if they are in the area or requested to do so. If the dive professional refuses to assist or is found negligent in their actions, it would be likely that the court may find them liable.

I'm not sure this is the case. A mere request by another does not create a duty to act. If they DO act or (as Peter cited) assume a duty by agreeing to be a buddy, then I can imagine them being held to a higher standard (although I'm not exactly sure what that would look like). Kinda a like a physician or nurse who refuse to act at an accident scene. Just holding a state license creates no duty. But when they do act at an accident scene they are held to a standard consistent with their training.

[mattwave]

Yes that is why said "May", but I also said may because most liability cases that make it to court are decided by a jury, and "Duty to Act" is too grey of an area to say a dive professional in such a situation would be protected if they refused to assist. We could argue to the letter back and forth but I am sure you are aware of what a litigious society we live in.

[CaptnJack]

True true. You don't need a double secret instructor handshake to get sued!

[Sounder]

I see absolutely no problem telling a charter op that you're not working and that you're unwilling to be placed in a position where you have to do ANYTHING but enjoy YOUR dive. I like the "charter refund and cash in advance" idea.

[Tom Nic]

I sure hope these f-ing morons aren't part of our board. Let me guess, Al80s with air and a pony bottle? (Tom, I feel a rant brewing)

Admirable restraint my friend! ...and, not to pull this thread off topic, but there are times when your rants are quite appropriate!

I would be interested in hearing opinions / thoughts of why get the DM cert in the first place if you're not going into FORMALLY mentoring / teaching other divers. Any DM's on this board that DON'T carry liability insurance?

There are many ways to informally be a great mentor to folks without being a DM / Instructor, and of course you can do tech training and not be an instructor.

[CaptnJack]

I sure hope these f-ing morons aren't part of our board. Let me guess, Al80s with air and a pony bottle? (Tom, I feel a rant brewing)

Admirable restraint my friend! ...and, not to pull this thread off topic, but there are times when your rants are quite appropriate!

I would be interested in hearing opinions / thoughts of why get the DM cert in the first place if you're not going into FORMALLY mentoring / teaching other divers. Any DM's on this board that DON'T carry liability insurance?

There are many ways to informally be a great mentor to folks without being a DM / Instructor, and of course you can do tech training and not be an instructor.

My wife has a DM card. She has never used it, and the insurance has long since lapsed (why pay for that). Sue us if you want, you'll get more money out of a stone.

[Sounder]

There is being something called "judgement proof" which basically means that even if someone got a judgement against you, they wouldn't recover much of anything.

The best legal advice I ever received was to marry an attorney.

[CaptnJack]

There is being something called "judgement proof" which basically means that even if someone got a judgement against you, they wouldn't recover much of anything.

The best legal advice I ever received was to marry an attorney.

Finding the cash to defend oneself is a big deal though. Having a DM cert with insurance has value there (even not really using it).

[dwashbur]

The NAUI Master Diver book says that one is under absolutely NO duty to step in when it's not a paid-professional situation. However, if one does choose to step in, they are obliged to perform to the best of their ability for as long as humanly possible. The question is, would a jury in an I-need-to-blame-somebody lawsuit necessarily see it that way? And is this actually what the law/laws in effect say?

Example: we're looking at heading down to the San Diego area for a few months some time in the foreseeable future. I have thought about hooking up with a shop or two down there to try and pick up a little extra $ as a divemaster. Obviously, that means buying the insurance. But the question is, do California laws match up with what NAUI says about duty and obligation? That's one of the many aspects of this whole thing that I'd like to know more about.

Incidentally, our mentor advised us not to buy the insurance until we're actually going to do something as a "professional" divemaster. Makes sense to me.

[Nwbrewer]

The NAUI Master Diver book says that one is under absolutely NO duty to step in when it's not a paid-professional situation. However, if one does choose to step in, they are obliged to perform to the best of their ability for as long as humanly possible. The question is, would a jury in an I-need-to-blame-somebody lawsuit necessarily see it that way? And is this actually what the law/laws in effect say?

That sounds like basically the same thing we were told long ago as lifeguards. If we were "on duty" we had a duty to rescua anyone in need. As such we were covered by our employer's insurance. If we were out somewhere with others and happened to see someone in distress, we had the option to act or not, but if we did we were required to continue until relieved by EMS, were too exhausted to continue, or the situation became unsafe. We were mainly a bunch of kids, I don't think we thought too much about the fact that if we did something away from work we were no longer covered by the employer's insurance.

Anybody can be sued at anytime. Liability waivers, insurnace, etc. may all help you in court, but it's not going to stop you from being sued. I simply refuse to spend my whole life paranoid about what a jury may or may not someday decide. I try my best to simply act as I would hope others would if I were the one injured or whatever.

[Peter Guy]

One more time?

IN THEORY to be held liable under a tort claim a person must:

a. Have a duty to act or refrain from acting towards another;

b. Have acted, or not acted, in an "unreasonable" manner given the level of training and skill of the actor; AND (yes, AND)

c. The action, or inaction, was A PROXIMATE CAUSE of the injury suffered.

This is standard tort law and has been for many a year -- in Washington, California, New York or B.C. -- anywhere that has British Common Law as the foundation.

So, if you are a "professional" on a charter (for example) do you have a duty towards others on the boat? Highly unlikely (assuming you are a client, NOT the DM of the boat). Since you have no duty towards anyone else, nothing matters.

BUT, if you accept some duty of care (say by agreeing to be a buddy), now you have to act according to your level of training and skill (i.e., not by negligent in your actions).

THEN, if something happens to your buddy, you will be liable for damages IF your negligent action was A PROXIMATE cause of the injury. BUT, if you are taking a photograph and forget where you left your buddy, your buddy has a heart attack and dies, even though you may have been "negligent" in not being there for your buddy, you were not the cause of the harm.

Me, I'll get my DM insurance even if I don't do any work -- at least for a while. I'm a big believer in the idea that one can never have too much liability insurance!

[CaptnJack]

Peter my head hurts, will your DM insurance pay?

[Pez7378]

I don't understand any of this, and if it ever comes up in court, where I am being sued, you can quote me.

[Sounder]

Thank you for breaking it down Peter. It's as clear as it's going to get... sorry Pez!

[Pinkpadigal]

On the other topic of keeping your DM/Instructor status "quiet" -- to what end? You'll still have the duty of care to your buddy which is based on your status whether revealed or not -- so why not identify it and then take control? And, as someone else wrote, IF you are on a charter and "they" attempt to pawn off a "hard case" to you because you are a professional, just sweetly say, "Well sure, just pay me my rate, the charter is now free and, yes, I need payment, in cash, upfront!"

I agree with Peter on this one. Having your instructor card allows me to have a little more freedom and I don't get hassled at all. I get special treatment because of my level and discounts because of it.

The reality is that dive accidents are very, very rare. Having the experience of teaching and learning makes me ready to anticipate a problem before it occurs and look for signs to prevent an accident before it happens.

[CaptnJack]

I don't understand any of this, and if it ever comes up in court, where I am being sued, you can quote me.

Haha here's the simple version...
Having a DM or instructor card doesn't obligate you to do anything outside of a class situation, unless you agree to that obligation like being a buddy or shore support, etc.

Under the circumstances of an accident you must act in a reasonable manner consistent with your agreements/obligations above. The standard of "reasonable" may be higher for DMs and instructors. Nobody needs to be Superman and you need not throw yourself on any grenades.

Their must be a causal connection between your actions/inactions and the death or injury. E.g. You agree to be shore support for someone's dive and they don't return. You call EMS and take other reasonable actions but don't swim out and search for them with a snorkel in 46F water. You are not responsible to what happened UW which killed them.

[Pez7378]

Nope, still don't get it. I guess since I'm so ignorant, I can never be held liable right? You guys make becoming a "professional" sound risky.


Ignorance Is bliss!

[dwashbur]

Nope, still don't get it. I guess since I'm so ignorant, I can never be held liable right?

(snip)

Don't you believe it. Everything depends on what kind of lawyer gets hold of the people in question. Back when I was in my 20's, some friends and I decided to take my brother's boat, a basic 14 foot outboard, out on one of the canals of the San Joaquin delta in central Cal. where I lived, for a Memorial Day picnic. While we were on this little island, a couple of middle-aged women came walking up to us and bummed a ride to a boat-shop/bar up the channel a ways, because their husbands had dropped them off at the island in the morning, then headed off to this place "to get the boat fixed," uh-huh, sure, and had been gone for a good 6 hours. Trusting little folks that we were, we said, sure, hop in. I had no idea where this place was, so I wasn't in any hurry, plus there was a buttload of boat traffic on the canal. Well, a couple of good size yachts were racing the other direction, and when they passed, the first one's wake lifted us up, and before the boat could come down, the second one's wake caught us and capsized us. I was always a good swimmer, and when I came up, we found everybody except one of the women. The nose of the boat was still above water, so I guessed she might be under it. I dove down, found her and dragged her out. When we surfaced she said those three wonderful little words: "I can't swim." All those stories about somebody climbing up on the rescuer's head and nearly drowning them are true, I'm here to tell you. Anyway, a few months later I found that I was being sued over the whole thing. Some ambulance-chaser - in this guy's case I suspect that's a very accurate term - got hold of the two of them, and suddenly they had stiff necks, and according to them, the whole accident came about because I was drunk and driving the boat much too fast. Now, at the time, I was a divinity student and didn't drink at all, but why screw up a good lawsuit with a bunch of truth? The whole thing dragged on for 4 years, and eventually I had to make a special trip from Montana where I was going to school, back to California to defend myself in court. The jury found in my favor, but the ridiculous expense, both in funds and time, as well as the godawful inconvenience, not to mention the fun of having a $100,000 lawsuit hanging over my head for all those years, was enough to wear me down like you wouldn't believe. My brother's insurance on the boat paid for most all of it, but it took a toll on me nonetheless, a toll that continues to this day, because I sometimes find myself hesitant to help people under certain circumstances.

Don't ever think that just because you don't understand the law, some a-hole can't find a way to use it against you. I saved this woman's life and she sued me for it. As I said, it just depends on what kind of slimy lawyer gets hold of the people, especially if there's an insurance company involved and the lawyer smells deep pockets.