Welcome to SP!  -
Areas & RangesMountains & RocksRoutesImagesArticlesTrip ReportsGearOtherPeoplePlans & PartnersWhat's NewForum

Scuba & Climbing Liability

Mountaineering, rock climbing, and hiking news.
 

Re: Scuba & Climbing Liability

Postby JHH60 » Tue Oct 26, 2010 8:56 pm

FortMental wrote:You SCUBA dorks should argue at some scuba forum....


Before you knock it - reflections in divers' sunglasses like the one in your profile are a lot more common than they are in snow climbers' sunglasses. 8)

Those long O2 decompressions in Devil's Eye at Ginnie Springs were made much more bearable by the UF coeds floating overhead in their inner tubes...
Last edited by JHH60 on Tue Oct 26, 2010 10:37 pm, edited 2 times in total.
User Avatar
JHH60

 
Posts: 1172
Joined: Tue Oct 21, 2008 6:59 pm
Location: Belmont, California, United States
Thanked: 94 times in 78 posts

Re: Scuba & Climbing Liability

Postby Alpynisto » Tue Oct 26, 2010 9:47 pm

mrchad9 wrote:
Fletch wrote:Say for instance, you are a guide and you have brought a 'difficult' client up into the mountains. He does something stupid, gets lost and/or hurt. You look around for a few hours, call SAR, head back down for a cup of coffee shaking your head and he shows up the next morning walking out of the woods. Then he introduces you to his lawyer and it's on...

Acually it might be more analogous to say the difficult climber got lost, the guide didn't know it. The guide got in the truck yet thought the client was there. Guide then went to go hang out in town and after 5 hours realized he left the client on the side of the mountain, THEN called SAR.

In my view that guide bears some responsibility, and ought to be paying for it.


Another Dive Master here. This was merely a case of gross negligence for which there is no such thing as a liability waiver in any state. It doesn't really affect the scuba industry other than serving a cautionary tale of "don't be stupid." And likewise it's irrelevant to the the climbing industry. As long as the guide acts in a responsible manner, a well-crafted release will protect them. Act irresponsibly and then you deserve to get your butt sued (here in the US, most other countries just throw you in jail).

The judge decided the diver was partly to blame, hence the reduction in the total award. But the DM and boat captain absolutely hold the majority of the blame. No sympathy for them at all. Getting left behind in the channel is far beyond any definition of inherent risk for scuba.
Alpynisto

 
Posts: 222
Joined: Tue Aug 14, 2007 4:12 pm
Thanked: 0 time in 0 post

Re: Scuba & Climbing Liability

Postby Augie Medina » Tue Oct 26, 2010 9:49 pm

1. The facts always matter. All court decisions are based on the law being applied to the particular facts of the case. This case only stands for the proposition that the boat/instructors will be liable for leaving a diver in circumstances where twice the dive master checked the guy as being present on the boat when in fact he wasn't.

2. In my opinion, the court applied long established legal rules (at least in California) concerning liability when one engages in a risky or hazardous activity like scuba-diving, rock climbing, mountaineering, sky diving, etc. The courts consistently hold that you assume the risks of engaging in a hazardous activity, even without a signed liability waiver. On top of this, a signed liability waiver generally protects sponsors or guides or instructors from being held liable for mere negligence (as opposed to gross negligence or reckless activity). The courts say the instructor is liable only she does something that increases the normal risks associated with that activity. For example, in a case a few years ago the Univ. of California was sued when a student in a rock climbing class fell when a top rope anchor pulled. The instructors were found not liable b/c, the court said, when people rock climb, they assume the risks of falling. Same for the child who was mauled by a mountain lion in a California state park after the ranger had told them "this is a safe place to hike." The court said, when you hike, you assume the risk of encountering wild animals. The court also noted, even though the state park had signs up warning of rattlesnakes and bears, it doesn't have to warn of every possible danger; it doesn't have to warn at all.

The trial court in this case applied the rule that being left by a dive boat is not one of the risks you assume when you scuba dive in a recreational setting. I think the court was saying, even if the diver himself had some fault for being so far away from the boat when he surfaced (I've been there before and I suspect many of you others who scuba dive have had the same experience), it is just beyond the pale for the dive master/instructors not to account accurately for all the divers before the boat pulls away to the next location.

3. So I don't think this decision is ground-breaking or portends higher potential liability for mountaineering guides, for example. And there is always the possibility that the case will be appealed and possibly even reversed.
User Avatar
Augie Medina

 
Posts: 795
Joined: Thu Feb 02, 2006 7:56 pm
Location: South Pasadena, California, United States
Thanked: 10 times in 7 posts

The following user would like to thank Augie Medina for this post
mrchad9

Re: Scuba & Climbing Liability

Postby donhaller3 » Tue Oct 26, 2010 9:51 pm

Technical point. This was a jury verdict in a trial court. It is not precedent for anything. It only settles the issues in that particular case.

It can be appealed. Perhaps it will. An appellate opinion would establish precedent.

I keep wondering though. Motoring off without verifying that everyone is accounted for sounds more like carrier liability than injury from the "hazardous" activity. NOT MY AREA.

No legal advice intended. Go hire your own lawyer before acting.
User Avatar
donhaller3

 
Posts: 89
Joined: Sat Feb 17, 2007 11:38 pm
Location: Astoria, Oregon
Thanked: 1 time in 1 post

The following user would like to thank donhaller3 for this post
mrchad9

Re: Scuba & Climbing Liability

Postby Augie Medina » Tue Oct 26, 2010 10:08 pm

donhaller3 wrote:Technical point. This was a jury verdict in a trial court. It is not precedent for anything. It only settles the issues in that particular case.

It can be appealed. Perhaps it will. An appellate opinion would establish precedent.


Yes.
User Avatar
Augie Medina

 
Posts: 795
Joined: Thu Feb 02, 2006 7:56 pm
Location: South Pasadena, California, United States
Thanked: 10 times in 7 posts

Re: Scuba & Climbing Liability

Postby sealevelmick » Wed Oct 27, 2010 2:18 am

hey, interesting points, have you guys seen that movie where the couple gets left diving out at the great barrier reef or something- horrible! i wonder if they asked the jurors if they had seen that movie.
anyway, this case gets back to a pre-existing disagreement i have w/ the justice system and all of its personal injury claims which is that the courts hold that all accidents are preventable, or any accident that isnt preventable is due to gross negligence. To me the fact that risk management is considered a Science contributes to that belief.
I'm saying, if for your whole career, 35 years, you took people out on boats to go diving and had to check thier names off lists, dont you think you could forget somebody one time? so maybe the checklist system is at fault.
anyway im not saying he shouldnt of gotten anything but the award was high. Or- people lose way more and get way less all the time... who's his lawyers again?
User Avatar
sealevelmick

 
Posts: 52
Joined: Mon Nov 12, 2007 5:53 am
Location: Santa Rosa, California, United States
Thanked: 0 time in 0 post

Re: Scuba & Climbing Liability

Postby Alpynisto » Wed Oct 27, 2010 11:27 pm

For those interested in the subject of releases and liability in the outdoor world:
http://www.recreation-law.com/2010/10/w ... lease.html
Alpynisto

 
Posts: 222
Joined: Tue Aug 14, 2007 4:12 pm
Thanked: 0 time in 0 post

Re: Scuba & Climbing Liability

Postby Joe White » Wed Oct 27, 2010 11:54 pm

Fletch wrote:
FortMental wrote:You SCUBA dorks should argue at some scuba forum....

Well, this certainly isn't a climbing forum! :lol:


very true
User Avatar
Joe White

 
Posts: 314
Joined: Thu Jun 14, 2007 11:51 pm
Location: Vancouver, BC, Canada
Thanked: 24 times in 17 posts

Re: Scuba & Climbing Liability

Postby Sierra Ledge Rat » Thu Oct 28, 2010 3:18 am

JHH60 wrote:
FortMental wrote:You SCUBA dorks should argue at some scuba forum....


Before you knock it - reflections in divers' sunglasses like the one in your profile are a lot more common than they are in snow climbers' sunglasses. 8)

Those long O2 decompressions in Devil's Eye at Ginnie Springs were made much more bearable by the UF coeds floating overhead in their inner tubes...


Damn, decoing in Devil's Ear I never got to see a damn thing....
User Avatar
Sierra Ledge Rat

 
Posts: 1117
Joined: Mon Jan 01, 2007 9:14 am
Location: Appalachia, United States
Thanked: 241 times in 158 posts

Re: Scuba & Climbing Liability

Postby asmrz » Thu Nov 04, 2010 12:17 am

Fort Mental, It was not Patagonia that was formed from the "Teton" suit. Patagonia existed and still does today as part of Yvon Chouinard clothing business. The company that was sued was Chouinard Equipment (for alpinists) and Mr Chouniard sold the company to his employees to prevent the deep pocket issue you mentioned. The employees renamed the company to Black Diamond. FWIW.
User Avatar
asmrz

 
Posts: 942
Joined: Mon Sep 16, 2002 7:52 am
Location: Idyllwild, San Jacinto Mountains, California, United States
Thanked: 149 times in 102 posts

Re: Scuba & Climbing Liability

Postby simonov » Thu Nov 11, 2010 9:16 pm

JHH60 wrote:A consequence of popularizing scuba is that it is perceived as safe, or if not safe, something where safety is the responsibility of the equipment manufacturer, boat captain, or divemaster, and is not dependent on the skills and fitness of the diver. After all, the diver was "certified" so must be competent, right? I believe this shift of perception of the sport as low risk, and of responsibility from diver to manufacturer/dive professional, is likely to lead to more lawsuits and damage awards in the future.

On the other hand, the mountaineering equipment and guide industry has not done this, or at least not to the extent of the scuba industry. I believe most people still regard that sport as dangerous, and something in which safety which ultimately depends on the skill, knowledge and fitness of each individual participant.


Holy cow, those are some perceptive comments. I'll extend them a bit by suggesting part of the allure of mountaineering, for many climbers (including more than a few on this forum, if the constant chest-beating that goes on here is anything to go by), is the perceived danger itself. Also, most climbing includes physical rigor and even, often, pain, and everyone knows it. So participants and the manufacturers who sell gear to them have no interest in downplaying the hazards related to climbing.

On the other hand, some large proportion of SCUBA certifications are "earned" on Carnival cruises and the like, based on a perception that nothing could be easier and safer than swimming around in an environment that is entirely hostile to human life without the knowledgeable use of specialized and complicated equipment.

I was NAUI certified about 20 years ago, but soon gave up SCUBA because I became concerned there were simply too many ways to die, especially if it wasn't something you were going to do with great regularity (like at least once a month or so). But I got the impression my instructor was different from most of them. At every point of our instruction, he emphasized the likelihood (indeed, the certainty) that our gear would fail, and drilled us on procedures to use in the event of gear failure. Later my dive buddy and I got into the habit of practicing ESAs during every dive (only partly because they are kind of cool). I gather most certification classes take precisely the opposite approach, that they emphasize an extreme reliance on well-functioning equipment to make the students confident in the water as quickly as possible. There, again, is your problem, and the essential difference between diving and mountaineering.

Contrary to your comments, I got the impression, upon my certification, that I was entirely qualified to safely dive unsupervised in clear, open water down to about 40 or 50 feet. But part of our training was knowing to avoid hazardous conditions, including "diving out of the tables" and other dangerous thrillseeking.

I have a friend who is an avid SCUBA diver and I intend to take the sport up once again in the next year or so. I lost my NAUI card (and so, apparently, has NAUI) and so I may have to re-certify. I am not looking forward to the one mile qualification swim, at my age.
Last edited by simonov on Thu Nov 18, 2010 6:16 pm, edited 1 time in total.
Nunc est bibendum.
User Avatar
simonov

 
Posts: 1369
Joined: Thu Mar 23, 2006 3:07 pm
Location: Costa Mesa, California, United States
Thanked: 466 times in 269 posts

Re: Scuba & Climbing Liability

Postby mrchad9 » Thu Nov 11, 2010 10:54 pm

A mile swim isn't required for a scuba certification. This would be a personal requirement by a specific instructor.
User Avatar
mrchad9

 
Posts: 4224
Joined: Thu Jul 02, 2009 12:01 am
Location: San Ramon, California, United States
Thanked: 1220 times in 827 posts

Re: Scuba & Climbing Liability

Postby simonov » Thu Nov 11, 2010 11:15 pm

mrchad9 wrote:A mile swim isn't required for a scuba certification. This would be a personal requirement by a specific instructor.


Ha!

That guy was a ball-buster, but I was grateful to him.
Last edited by simonov on Thu Nov 18, 2010 6:15 pm, edited 1 time in total.
Nunc est bibendum.
User Avatar
simonov

 
Posts: 1369
Joined: Thu Mar 23, 2006 3:07 pm
Location: Costa Mesa, California, United States
Thanked: 466 times in 269 posts

Re: Scuba & Climbing Liability

Postby Augie Medina » Thu Nov 11, 2010 11:56 pm

simonov wrote: I was NAUI certified about 20 years ago, but soon gave up SCUBA because I became concerned there were simply too many ways to die, especially if it wasn't something you were going to do with great regularity (like at least once a month or so). But I got the impression my instructor was different from most of them. At every point of our instruction, he emphasized the likelihood (indeed, the certainty) that our gear would fail, and drilled us on procedures to use in the event of gear failure. Later my dive buddy and I got into the habit of practicing ESAs during every dive (only partly because they are kind of cool). I gather most certification classes take precisely the opposite approach, that they emphasize an extreme reliance on well-functioning equipment to make the students confident in the water as quickly as possible. There, again, is your problem, and the essential difference between diving and mountaineering.


I got my certification (PADI) also about 20 years, but have taken advanced courses (NAUI) over the years. The instructors I had clearly imparted dangers faced even with short (i.e., 60 ft. or less), recreational dives: decompression sickness, embolisms, busted eardrums, etc. The parallels with mountaineering are interesting. I think like mountaineering, equipment malfunction is not in the forefront of risks (unless you misuse the equipment of course).

Changing environmental conditions, not paying attention to your tables/computer, not being able to control a needed safety stop, are more common risks I think. And if you beach dive, you need extra skills (surf entry and exit for one) not needed with open water diving off boats. SCUBA even has the bouldering equivalent of technical rock climbing in free diving with weight belt.

Also like mountaineering, shit happens despite our best efforts. I was bent slightly once (didn't need the chamber though) and busted my eardrums once. And like climbing and mountaineering, learning SCUBA rescue skills sure makes you feel a lot more confident. Getting a scuba rescue certification was by far the best scuba course I ever took. So if you get back to it, take a rescue course (I did hate the underwater swim requirement though b/c it took me two tries to pass it).
User Avatar
Augie Medina

 
Posts: 795
Joined: Thu Feb 02, 2006 7:56 pm
Location: South Pasadena, California, United States
Thanked: 10 times in 7 posts

Re: Scuba & Climbing Liability

Postby JHH60 » Fri Nov 12, 2010 4:05 pm

The recreational scuba training council (RSTC) which coordinates standards among many agencies defines the swim test as 200 meters without stopping, and a ten minute tread water or float. NAUI may not be an RSTC member so may have a different requirement. The real purpose for the swim test, at least when I was teaching, was to give instructors a chance to see how comfortable students were in the water. While you don't have to be a great swimmer to be an entry level diver, you do need to be reasonably comfortable in the water. At the open water level, the primary cause of diver deaths is panic. Equipment failure may be a contributing factor, but if a diver keeps their cool and hasn't exceeded the limits of their training (like going inside a wreck or cave without proper gear and training) or badly screwed up in some other way they can survive virtually any gear failure through proper procedures. Panic greatly reduces the chances of a diver's survival of a failure of gear or procedures. The swim test is one screening tool instructors can use to determine how comfortable students are likely to be in the open water.
User Avatar
JHH60

 
Posts: 1172
Joined: Tue Oct 21, 2008 6:59 pm
Location: Belmont, California, United States
Thanked: 94 times in 78 posts

Previous

Return to News

 


  • Related topics
    Replies
    Views
    Last post

Who is online

Users browsing this forum: No registered users and 0 guests

© 2006-2013 SummitPost.org. All Rights Reserved.