DM Cert = More liability??

[ReefHound]

No it doesn't negate anything. How you hold yourself out is often a crucial factor in determining the reasonable expectations of others. There is no legal duty for a bystander to act in a rescue, period.

Lawyers can spin their arguments however they wish, at the end of the day it's jurors like you and I, not lawyers, who render verdicts.

I agree that professional liability insurance is essentially prepaid legal defense. It's the second best defense you have. The first is to be judgment-proof. One might even argue that having insurance makes you a bigger target.

But while it's easy to yap in general terms about "our litigious society" and point out a few bizaare cases out of the millions that pass through our legal system, it's just not that big a deal. You're more at risk driving to the dive site than losing your house in a lawsuit.

Provide me one solid reference, not hearsay, not a friend of a frend of a friend, a verifiable reference where a diver - of any level - has lost a big judgment when they did not directly cause the accident.

[Puffer Fish]

Originally Posted by georoc01

I can tell you that my AOW instructors when not teaching dive on their PADI Master Diver card, not under their Instructor #. They don't want to be on the list as an instructor if something did go wrong.

Boy, there is a mistake waiting to happen.

Assume for a minute that something does happen...

If something does happen, depending on the state, you have just put yourself in a terrible box. If you don't help, you could be more legally involved that you would think. Even the act of attempting to cover up your training could be considered in a trial.

This gets to the issue of a doctor or knowing CPR... not rendering help if you have the training and skills is very different from not doing something when you don't know how.

[Puffer Fish]

Originally Posted by ReefHound

No it doesn't negate anything. How you hold yourself out is often a crucial factor in determining the reasonable expectations of others. There is no legal duty for a bystander to act in a rescue, period.

Lawyers can spin their arguments however they wish, at the end of the day it's jurors like you and I, not lawyers, who render verdicts.

I agree that professional liability insurance is essentially prepaid legal defense. It's the second best defense you have. The first is to be judgment-proof. One might even argue that having insurance makes you a bigger target.

But while it's easy to yap in general terms about "our litigious society" and point out a few bizaare cases out of the millions that pass through our legal system, it's just not that big a deal. You're more at risk driving to the dive site than losing your house in a lawsuit.

Provide me one solid reference, not hearsay, not a friend of a frend of a friend, a verifiable reference where a diver - of any level - has lost a big judgment when they did not directly cause the accident.

Sadly, there are a fair number...just look at a history of NAUI.. 1976... they lost a major judgement in a case where a student was hit by a drunk boat driver.. They had flags out.. and had taught all the correct actions. The jury found the instructor guilty of having the person there, as had they not been there, it never would have happened. That ended up being 30% of around $2,500,000. My cost for insurance went from just over $200 a year to just under $3,000 (and I was no where near California).

The reason you don't see them, is that many are settled out of court or settled with sealed results. California, for example, assigns responsiblity by dividing it up...so just being in the wrong place can sometimes cost money.

Also, in most states (but not all), it is against the law to not provide assistance, if you have certain skills. Having CPR, for example, requires that you do provide assistance. Being a lifeguard, actually requires that you assist if they see someone drowning.

Most states have the "good sameritan" laws that prevent someone from sueing if the assistance does go well, but even that is not 100%.

On a business level, I have been involved in more than a dozen law suits... most of which I was providing expert witness testimony. All resulted in settlements, and not one could you ever find any evidence they ever happened. The largest resulted in a payout of over $1.2 billion... and the entire record was sealed.

[Navy OnStar]

Originally Posted by Puffer Fish

The largest resulted in a payout of over $1.2 billion... and the entire record was sealed.

Not sealed to well I see! I think I'll sue..........

[ReefHound]

Originally Posted by Puffer Fish

This gets to the issue of a doctor or knowing CPR... not rendering help if you have the training and skills is very different from not doing something when you don't know how.

Don't confuse a licensed and registered doctor with a diver. You're simply wrong. There is no legal obligation to render assistance except in narrow circumstances. But if you do, absent gross negligence, Good Samaritan laws are nearly bulletproof.

Furthermore, lawyers who attempt to file lawsuits on Good Samaritans have a high burden to prove such gross negligence and face sanctions for violations.

How convenient that you provide all these examples that are "sealed". Well if a diver doesn't have insurance they can't settle, thus no seal. Where are these references?

I predict I'll get a lot of armchair expertise and anecdotal evidence but not one verifiable reference of a diver, not one acting in a professional capacity such as instructing students, but on a pleasure dive being successfully sued when he was not directly responsible.

[Puffer Fish]

Originally Posted by Navy OnStar

Not sealed to well I see! I think I'll sue..........

I was working for the receiving company... and while I sure never got even a penny, I did get to spend some of it building mfg plants.

[in_cavediver]

OK, for a point of reference here. My concern is not the right or wrong of my actions but what it will cost me to be proven right or wrong. Its the cost of legal defense that scares me.

On topic though. The question is does the DM/OWSI/Diver have a duty of care to the victim. If the answer is a clear yes, then there is a clear case of needing to act. If you just happen to be around the accident but have no contact with the individual, you do not have a duty to act, anywhere. Period. Training and skills does not equal obligation. If you are in a special class of people, such as an ER Doc, paramedic, etc and on duty, you have a duty to act by way of your PAID profession. Good Samaritan laws come into play when you do act, without a duty to act, and do what a reasonable and prudent person would do within the scope of your training, abilities and facilities.

Again, its not the judgments that should concern you, its the cost to defend yourself. As a DM or OWSI, your a bigger target due to a perceived duty of care.

[ReefHound]

Having insurance makes you a bigger target. Lawyers don't sue people for entertainment, they sue for money. If you have no readily available supply of money, they aren't interested. They know an insurance company will write a check, either after judgment or after appeal of judgment. Your average diver typically has few attachable assets. Your personal home up to a million dollars is off limits. Your car and tools if needed to work are off limits. Your personal items are off limits. Your retirement investments are off limits. Ask Mr. Goldman how much he has gotten out of OJ from his $33 million judgment.

As for cost of defending yourself, it's clear that most people have not only fallen for the legal scaremongering and sensationalism perpetrated by the insurance industry but have in fact helped propagate it. As a Good Samaritan, chances are you will be dismissed from the suit before you even know you were named.

[CompuDude]

Originally Posted by ReefHound

Having insurance makes you a bigger target. Lawyers don't sue people for entertainment, they sue for money. If you have no readily available supply of money, they aren't interested. They know an insurance company will write a check, either after judgment or after appeal of judgment. Your average diver typically has few attachable assets. Your personal home up to a million dollars is off limits. Your car and tools if needed to work are off limits. Your personal items are off limits. Your retirement investments are off limits. Ask Mr. Goldman how much he has gotten out of OJ from his $33 million judgment.

As for cost of defending yourself, it's clear that most people have not only fallen for the legal scaremongering and sensationalism perpetrated by the insurance industry but have in fact helped propagate it. As a Good Samaritan, chances are you will be dismissed from the suit before you even know you were named.

I've worked in the legal industry since 1990 (on the insurance end, for much of that). I can personally say that this is not true, having witnessed far too many frivolous (and non-frivolous) lawsuits cross my desk, and seen people that never should have been involved need a lawyer's assistance in getting out of the mess. Even people that aren't directly named in a lawsuit can be impacted considerably, in terms of subpoenas, interviews, depositions, and trial appearances... all time off work that goes uncompensated, and the need to pay an attorney to represent you to make sure you aren't dragged into something you shouldn't be.

[ian]

Originally Posted by ReefHound

There is no legal duty for a bystander to act in a rescue, period.

I agree!

Originally Posted by ReefHound

Provide me one solid reference, not hearsay, not a friend of a frend of a friend, a verifiable reference where a diver - of any level - has lost a big judgment when they did not directly cause the accident.

Well put! I, too, would like to see such a verifiable reference.

Originally Posted by Puffer Fish

Sadly, there are a fair number...just look at a history of NAUI.. 1976... they lost a major judgement in a case where a student was hit by a drunk boat driver.. They had flags out.. and had taught all the correct actions. The jury found the instructor guilty of having the person there, as had they not been there, it never would have happened. That ended up being 30% of around $2,500,000. My cost for insurance went from just over $200 a year to just under $3,000 (and I was no where near California).

This is a reference to a NAUI lawsuit and an instructor involved in the situation. It is NOT a reference to an "bystander" DM being sued. THAT’s the reference I’m looking for.

Originally Posted by Puffer Fish

Also, in most states (but not all), it is against the law to not provide assistance, if you have certain skills. Having CPR, for example, requires that you do provide assistance. Being a lifeguard, actually requires that you assist if they see someone drowning.

Pardon? Can you provide me with the citations for such laws, please?

In fact, if you have ever taught a CPR or First Aid class, one of the points to stress is that the trained person is NOT required by law to respond!

Originally Posted by in_cavediver

The question is does the DM/OWSI/Diver have a duty of care to the victim.

Even more to the topic: Does the DM/OWSI/Diver not on duty, but merely a "bystander" have a duty of care to the victim?

Originally Posted by in_cavediver

Again, its not the judgments that should concern you, its the cost to defend yourself. As a DM or OWSI, your a bigger target due to a perceived duty of care.

I agree wholeheartedly with your first statement but disagree strongly with your last.

Does ANYONE have a verifiable case of a Divemaster who was an "bystander" being sued for not responding in an emergency?