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June 2008    Download the Entire Issue (PDF) Available to the Public Vol. 23, No. 6   RSS Feed for Undercurrent Issues
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Want to Sue That Dive Shop? Good Luck

nine reasons why dive businesses win in court

from the June, 2008 issue of Undercurrent   Subscribe Now

After 30 years of diving litigation, and reviewing several hundred dive incidents that wound up in litigation, its unfortunate that the same basic problems keep recurring. Its the cavalier diver thinking everything is going to work in his favor who is usually found on the victim line in the incident report, or listed as a defendant in a lawsuit. Here are nine reasons why they end up there.

Reason #9: Your Dive Gear Does Work

If you have an equipment malfunction, chances are remote that youll be able to prosecute a claim against the manufacturer. Dive equipment is now more reliable, and records kept during the manufacturing process are detailed and thorough. The rare product problem almost always leads to an immediate recall and industry notification.

More likely is that a dive shop may have made an improper repair or that parts that were replaced were not from the original manufacturer. That too is becoming rare as dive stores realize that they, also, are in the firing line.

I have investigated hundreds of product liability incidents, and most go back to the divers themselves. They have not bothered having their equipment serviced by a professional. Or, they, themselves, serviced it improperly. Or they didnt know how to use the product in the first place. Dive shops have become more thorough when renting equipment, requiring divers to sign a release saying they have inspected and tested the equipment and found it to be in good working order. That usually forestalls any potential litigation.

Reason #8: Technical Diving Can Be Deadly

Technical diving is the least forgiving part of diving. What might be a minor inconvenience at 40 feet on scuba is a life-threatening crisis in a wreck or on a rebreather. Instruction, continuing education and preparation need to be taken with the same seriousness as that of a fighter pilot. The risk-reward ratio must be carefully and constantly evaluated. I remember being on a dive past 200 feet, looking into the abyss to see a very large animal, and wondering, I have three little kids -- what the hell am I doing here? If youre going to get into technical diving, give it 100 percent attention and concentration.

Also, dive shops are using highly detailed tech diving-specific waivers. Few suits arise from technical training because it is so obviously hazardous (and the number of divers doing it is quite small).

Reason #7: The Doctor Is Not Your Friend

Jurors love doctors so unless theres an egregious and obvious medical malpractice, a judgment call by a doctor will probably be accepted, perhaps by saying that the diver did not fully disclose potential problems he might worsen by scuba diving.

If youre involved in a dive accident and seeking medical advice, you must tell them absolutely everything about your condition. Embarrassment and the possibility of high medical bills should not be a concern. Few physicians are skilled in hyperbaric or diving medicine, so getting advice from someone who knows what theyre doing is critical. If you wind up in litigation against a doctor who mistakenly approved you as fit for diving or recommended improper treatment, the odds will be weighed against you, not the medical professional. Its not that it is fair. Its just the way it is.

Reason #6: A Diver Short, Youll Be In Court

This advice goes not only to dive boat operators but to anyone who uses his own recreational vessel for diving or even acts as a tour leader for friends.

I tell dive shop owners that their part-time employees set up as independent contractors keep that status until they have an accident on the job, then they turn into employees with all of the rights and recoveries. Your friends who came aboard your boat will somehow remember they had paid you for gasoline so have the rights of paying passengers.

Fortunately, and despite the film Open Water, instances of divers being left behind have become rarer. Most liveaboards operating in remote areas not only make sure divers are outfitted with the safety sausages, horns and other signaling devices, but also with location finders that can be tracked from the mother ship. Instances of lost divers are more likely attributable to incompetent or poorly equipped dive operators in Third World countries, where either the single engine fails or the radios do not work. Usually, divers who have problems with Third World dive operators sue the people in the U.S. who sent them there, because bringing lawsuits overseas is very problematic.

Reason #5: It Doesnt Matter Which Dive Agency Standards You Dont Follow

When you get DCS, it doesnt matter which set of tables you didnt follow. I once advised instructors that they were on solid ground if they stuck to the rules of their training agency, but recently Ive been involved in cases in which the standards themselves played a large role in the accident. In one case, while following the exact standards for an introductory course, a dive instructor took part of his group through a short underwater lava tube while allowing another diver to swim over the top. That student became more buoyant as he breathed down his air. He had specifically been trained not to touch his BCD controls (again, according to that agencys standards) and as the instructor raced to prevent an uncontrolled ascent, both he and the student were struck by a boat and seriously injured. A recent settlement conference failed, and the suit will be brought to trial soon.

In another case, I represented the widow of an inexperienced diver for whom a dive instructor acted as buddy when the original buddy decided not to dive. The instructor led him into a thick kelp bed, then went out alone on the other side. The inexperienced diver drowned after surfacing, probably having suffered a gas embolism then going face-down into the water with his buddy nowhere around. The standards for both buddy behavior and the lost buddy drill had been completely ignored by the dive instructor, leading to a settlement just before trial. If it was an experienced diver as opposed to an instructor the case would be significantly weaker, but possibly still a winner given the clear breach of a duty voluntarily agreed to by both parties.

Reason #4: The Sacramento Syndrome

In a lawsuit involving divers in training, a surviving student testified that the instructor had checked out the bad conditions and then said, We drove all the way from Sacramento, so were going diving, with the result being the death of a dive student based on the poor judgment call. This rule can translate to individual divers themselves, as it is the basic rule of technical diving: Any diver can turn away from any dive at any time for any reason. If you have any apprehension or discomfort regarding your ability to complete a dive, dont do it.

Reason #3: S**t Happens -- But Dont Tell Anyone

President Calvin Coolidge once said that you generally dont get in trouble for what you didnt say. This advice not only applies to dive instructors, who may want to seem authoritative authoritative while talking about an accident when they really dont have all the facts, but also to divers themselves, who may have been involved in an incident but also arent aware of everything that was going on.

An attorney should discuss the case with you prior to any interview and participate in it if possible, even if by telephone. If the interviewer doesnt tape-record the interview, you should do so yourself, so a My Cousin Vinny moment doesnt occur. In that film, the sheriff asked the defendant, Where were you standing when you shot the clerk? His incredulous reply, clueless that the clerk had been shot, was, I shot the clerk? When the sheriff testified in court about what the defendant had said, he stated in a deadpan manner, The defendant said, I shot the clerk, with no reference to the inflection indicating it was a question and not a statement.

Lawsuits are best prosecuted in the courts and not in the media. I can recall instances when a diver had given information about an accident that went far beyond reality, and when that came up in court, ultimately he looked like a liar about everything he said. I keep a blowup of a jury instruction that states, A witness false in one part of his testimony is to be distrusted in others. You may reject the entire testimony of a witness who willfully has testified falsely on a material point, unless, from all the evidence, you believe that the probability of truth favors his testimony in other particulars.

Reason #2: A Release Is More Than The Paper Its Printed On

The more hazardous the diving, the more thorough the release and the more effective it is at absolving the dive professional from even obvious negligent behavior. So a diver who signs the release should read it thoroughly and understand what he is releasing. The dive professional must provide the release to the participant when he still has the time to withdraw, ensure that its filled out completely and kept in a safe place. In a recent case in Florida, which has a strong release law, a woman being instructed one-on-one in an open water class was lost by her instructor during a thunderstorm. After she was found dead on the bottom, a suit was filed but was decided in favor of the defendant dive instructor based exclusively on the release she had signed. It may not seem fair but it is the law, and the underlying rationale is that for high-risk sports to even exist, a release of liability in favor of instructors, even when they make mistakes, needs to be in place.

Reason #1: If You Lie, It Will Be Found Out

The hardest thing to deal with in dive litigation is an untruthful client. While the basis for lies can range from stupidity to arrogance to greed, when the lie is discovered, whatever merits there were go out the window.

In a California case my office handled years ago, a physician had claimed that his BCD power inflator had failed, causing him to make a rapid ascent and suffer from severe brain damage as a result. Even his psychiatrist testified that his mind had been destroyed, evidenced by various tests. He even had his sweater inside-out when he showed up for an appointment. The plaintiff testified that his practice had been ruined because his mind was gone, and he was on disability. However, investigation showed that rather than retire, he was actually on staff at another hospital. Furthermore, after the accident, he had served as an expert witness, criticizing another doctor based upon a technical evaluation of medical records. Ultimately, the jury ruled against him, and his disability insurance carrier sued him for all payments he had received.

If someone is lying about the circumstances of an accident, it is better to know up front and to try to settle the case then to get a nasty surprise at trial. Conversely, a plaintiff whose lies are exposed not only has to spend the time and energy on a trial, but winds up owing thousands of dollars in costs to the other side. Tell the truth at the front end. If its to your attorney, its completely privileged and at least you will know whether you have a realistic claim that can be defended.

Attorney Rick Lesser of Lesser & Associates (www.divelaw.com) presents his Risk Management seminar every year at the Dive Equipment and Marketing Association show. He has been counsel in hundreds of dive-related suits in his 30 years of practice.

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