Professional Scuba Diver’s Liability – Live webinar with Attorney Jason Botticelli on August 27 at 12p.m. ET/9a.m. PT. Click here to register.
The goal of this webinar is to give more of the “laymen” dive professionals a basic understanding of what their professional insurance is for. the webinar will cover the following:
- What is “negligence” in the legal world and how it applies to professional divers
- Review of some case scenarios to determine if there was negligence on the part of the dive leader
- Tips on leading a successful dive and avoiding being negligent in the event of a diving accident
As dive professionals, we have to maintain liability insurance in case we are ever sued in relation to a diving accident we are associated with. Most of us pay our premium, receive the certificate of insurance and then don’t worry about it until next year. We are comfortable that the insurance is in place and we have some protection. However, with some contemplation about just what it is that the insurance is protecting us from, we can have a better understanding about what our obligations are and, in turn, become better divers and dive leaders.
Negligence
Our professional liability insurance is to help protect us if we are sued because someone is claiming we were negligent in our duties in relation to a diving accident. But what exactly is negligence? According to Black’s Law Dictionary, it is “The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do or the doing of something which a reasonable and prudent man would not do.” In a simplified dive leader context, it means failing to do something a normally reasonable dive leader would do or doing something that a normally reasonable dive leader would not do.
To get to the professional-diver level, we all have undergone extensive training, both in and out of the classroom and water. We have the tools necessary to make reasonable decisions by leading a dive. It’s when we think that the normal rules don’t apply, or it will be OK if, just this once, we don’t follow the normal procedure, that trouble occurs. The training and knowledge are there — we just need to acknowledge and follow it.
When making a dive decision, keep in mind what the reasonable prudent diver would do. For example, if the waves are much higher than normal and you have a boat full of newly certified divers, the reasonable prudent course of action would be to call the dive and reschedule. If the dive leader took the newbies out in those conditions and someone was hurt, a lawsuit would well follow. The attorney for the injured party, or plaintiff, would argue that the dive leader’s actions under the circumstances were not reasonable. The attorney for the dive leader, who is now a defendant in the case, will do their best to show the dive leader acted reasonably, which in this scenario might be a high hill to climb.
For there to be negligence, there need to be four things: (1) duty, (2) breach, (3) proximate cause and (4) injury. In the above example, there is a “duty.” It’s the duty of the dive leader to lead a safe dive; this includes determining if conditions are too bad to dive on that day. The “breach” of the duty would be the dive leader ignoring the higher than usual waves and the basic training level of the divers under his care and going on with the dive. For parts (3) and (4), the “injury” has to be “proximately caused” by the dive leader’s breach of duty. For example, if the injured diver was swept under and hit by the dive boat, that would be proximately related to the leader’s decision to dive in the higher waves. If the injured diver was hurt by fire coral, this most likely would not be found to be as a proximate cause of the leader’s breach. (Under that scenario, the dive leader would not be negligent since the breached duty did not proximately cause the injury.)
Negligence very much depends on the surrounding facts. If the same dive leader is leading training for an underwater recovery unit, the decision to dive in the higher waves may not be a breach of duty. These divers are specialized and need to train in adverse conditions since they are usually faced with adverse conditions. They would be ill-prepared for such conditions if they only dove in the calmest of water and weather. If an underwater recovery unit leader did only train the team in calm, warm waters, he would probably be negligent if one of the divers was hurt in a rescue attempt. Here, the duty was to prepare the divers for incidents that normally happen in the worst of conditions.
Planning for a Successful Dive
Below are some things to keep in mind as a dive leader preparing for a dive. Again, the below will depend on such things as the level of training of the divers and the type of dive you are leading:
Preplanning:
Look over all your gear the night before and make sure you have everything you need for the dive and that it is in good working condition. (Follow recommended and/or required inspections on items like regulators, BCs and cylinders. You could be found negligent if there is a diving accident due to or related to your unmaintained equipment failure.
Check the weather. While most times you might not be sure how the weather is going to turn out until you are on-site, there are occasions where you can tell in advance if a dive should be called. No point delaying the inevitable if it is one of those days.
Get to the site/boat early. This will give you time to examine the dive site, if doing a shore dive, and get your gear in order. The last thing you want to be doing is rushing to set up or stow your gear while divers are showing up. Having all your gear in order will let you observe the divers and their gear. With you not being rushed or distracted, you have a better chance of catching anything wrong with the divers’ gear or the way it is set up. You can also take the time to talk with or watch the divers as they gear up and assess anyone for over-nervousness or anxiety. As we all know, problems are way easier to deal with on land than in the water. This is true whether it be a loose tank strap or a diver who may not be mentally ready for the dive. Either of these scenarios and many in between can lead to exacerbated issues underwater that could distract the dive leader and lead to an accident.
Give a detailed briefing. The more the divers know going into the dive, the more they can visualize and prepare for it. Some good points to include in the dive brief include site orientation (where are they and what can they expect to see, including things like maximum depth, current and water temperature), equipment needed (for example, if in navigable waters, a float and flag, or primary and secondary flashlights for a night dive), entry and exit locations and methods (if on a boat, let them know if you are doing a giant stride or backward roll and give a brief review of the one you are doing), other dive leaders on hand (include which dive leaders will be with which divers and which ones will be surface support), dive objective (for example, if a river drift, the objective would be to enter the water at point A and use the current to exit at point B), and then the dive plan (layout in order how they are going in, what they are going to do and how long the dive is to last). The more detail you can give in the briefing, the more at ease the divers will be and the better the chance of eliminating task overload.
Make sure you and the other dive leaders are on the same page with the dive plan and who is going to be responsible for what. You don’t want to wait until you’re underwater to make these decisions and risk the divers feeling like the leaders are disorganized. This too can lead to diver stress and make the leader’s job more difficult.
The takeaway is that every dive situation is unique. If an incident occurs, it is how the diver leader prepared for and reacted to the situation that will dictate whether or not the incident and any resulting injury were due to negligence. When leading any dive, a dive leader will do well to think what their duty is for the dive and what the normally reasonable dive leader would do under the circumstances. In thinking about this, the dive leader should call upon their training, and this will guide them to follow the right course of action. Keeping the above in mind for every dive will keep divers out of court and in the water — where we would all prefer to be.
Professional Scuba Diver’s Liability – Live webinar with Attorney Jason Botticelli on August 27 at 12p.m. ET/9a.m. PT. Click here to register.
