Scuba & Climbing Liability

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Tanngrisnir3

 
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Re: Scuba & Climbing Liability

by Tanngrisnir3 » Tue Oct 26, 2010 5:00 pm

Fletch wrote:Im not sure if any of you saw this article in the LA Times. It is absolutely groundbreaking and may have major consequences in the scuba industry which will no doubt spill over into other sports industries (including the climbing and mountaineering industry).

Heres the article:
http://www.latimes.com/news/local/la-me ... 8808.story

Let me start off by saying that I am a certified Scuba Instructor and Divemaster and have been diving for 20+ years. Most of my days diving were in Southern California and I spent some time working boats as a Divemaster. I've actually been on the boat in question a few times and have dove at the location in question.

What makes this unique is that for the first time in 50+ years of the recreational diving community, a "guide" has been found guilty of neglegence in a court of law. Im not going to go into the details of the case because frankly, the facts aren't important (it's California, right? :P ). What's important is the ruling will set a precedent in the scuba industry (which was always viewed as impermeable to the legal system). The thought behind this was that if you were dumb enough to strap compressed air to your back and dive in the ocean, no one except yourself could be held responsible. Now that has all changed. This will push up insurance costs for boats, dive shops, and divers, not to mention put blood in the water for lawyers to sue the shit out of folks trying to go diving. They just opened up Pandora's Box and it can't be shut again.

Im wondering if you can see this spilling over into the guided climbing industry. Can you see the headlines now, "Climber's guide didn't tie a figure eight to a man's harness while climbing Everest and he fell to his death. Family awarded $2.1MM..." Insurance and legal costs will skyrocket and the guiding community will no doubt have to pass this cost on to its clients (if they will pay it). I don't want to get into the "well, just don't hire a guide then" argument because sooner or later, climbers will start suing the park service or the plane companies, etc...

But, what are your thoughts?


A. The facts are always important. That you chose to dismiss them belies a lot about your appreciation of the verdict and it's ramifications. Had the facts been different, the outcome might have been different.
B. The man was abandoned by those who brought him out into the water.
C. There were consequences for those actions.
D. You have given no substantive reasons why this will have any effect on climbing guides.

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JHH60

 
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Re: Scuba & Climbing Liability

by JHH60 » Tue Oct 26, 2010 5:06 pm

My thought is that after 12 years as an active scuba instructor, I'm glad I let my rating lapse last year. Never made any money at it anyway, and was tired of having to keep one set of gear for teaching and another (different configuration) for actual diving. Now I can focus on suing boat captains that don't pick me up immediately, or divemasters that drop my scooter or deco bottles when I hand them up to the boat.

But seriously, I don't think this is the first damage claim awarded to a diver. They are in fact rare, but there's a reason we had to pay dive professional insurance all those years. In this case it sounds like the diver was an idiot for surfacing a long way away from the boat, but it also sounds like the DM was negligent for marking him accounted for when he wasn't really there. As a DM you should know that's a cardinal sin.

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Re: Scuba & Climbing Liability

by mrchad9 » Tue Oct 26, 2010 5:12 pm

JHH60 wrote:I don't think this is the first damage claim awarded to a diver. They are in fact rare, but there's a reason we had to pay dive professional insurance all those years.

That makes sense. Plus I think the facts matter here.

This wasn't a suit about poorly trained divemasters or them lacking safety equipment that might have been useful. This was about them just taking off and leaving him to drift away.

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Re: Scuba & Climbing Liability

by mrchad9 » Tue Oct 26, 2010 5:18 pm

Fletch, it has always been the case that it is up to the jury to decide what impact the liability waiver does or doesn't have, how far reaching it is.

This does not change the scuba or other industries, in my view.

The facts do matter. If you are on some guided climb of Rainier in winter, and weather comes in or you fall in a crevasse, you are largely on your own in terms of not having anyone to blame in court. But if on the way back to the trailhead the guide runs ahead of you, hops in the truck and takes off for some hot coffee and leaves you there in a storm for 5 hours, you can bet they will have some damages to pay.

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Re: Scuba & Climbing Liability

by mrchad9 » Tue Oct 26, 2010 5:21 pm

Fletch wrote:Im officially out!

So you didn't want to discuss this?

Oh good grief!

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Re: Scuba & Climbing Liability

by Tanngrisnir3 » Tue Oct 26, 2010 5:36 pm

Fletch wrote:
Tanngrisnir3 wrote:A. The facts are always important. That you chose to dismiss them belies a lot about your appreciation of the verdict and it's ramifications. Had the facts been different, the outcome might have been different.
B. The man was abandoned by those who brought him out into the water.
C. There were consequences for those actions.
D. You have given no substantive reasons why this will have any effect on climbing guides.


If there was a way to "un-thanks" your post, I would.


That's nice. Anything else irrelevant you'd like to throw in there?

You're missing the point and I can't tell if you are doing it on purpose or not. The facts of the case ARE NOT important, only the ruling. I don't want the forum discussion to be about the facts of the case (because whether or not you agree, negligence was proven in a court of law). I was hoping to discuss similar liability concerns in the guided mountaineering industry (see title of OP).


Your OP doesn't convey your above statement whatsoever. The facts are very important, because the ruling is directly related to them, and how they might apply in tangential but related fields, ala climbing guides.

The effect on climbing guides is that CURRENTLY, there is a real aversion in a court of law to find a guide guilty of neglegence because a jury and judge will most likely side with the reasoning "mountaineering is an extreme sport and if you venture into the mountains, you assume the liability." Additionally, your guide makes you sign a liability waiver (as was such in the scuba case) and they have held up in a court of law UNTIL NOW.

What I would like to discuss is whether or not you think this case (as I do) will reverberate in sporting industries where "you participate, you assume the risk" is the going motto. If you want to jack around with the facts of the case and determine whether or not the guys should have done X or shouldn't have done Y, then fine, go for it. I wont be returning to this forum topic then.


Do you even bother to read what you post?

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Re: Scuba & Climbing Liability

by JHH60 » Tue Oct 26, 2010 5:43 pm

Fletch wrote:The effect on climbing guides is that CURRENTLY, there is a real aversion in a court of law to find a guide guilty of neglegence because a jury and judge will most likely side with the reasoning "mountaineering is an extreme sport and if you venture into the mountains, you assume the liability." Additionally, your guide makes you sign a liability waiver (as was such in the scuba case) and they have held up in a court of law UNTIL NOW.

What I would like to discuss is whether or not you think this case (as I do) will reverberate in sporting industries where "you participate, you assume the risk" is the going motto. If you want to jack around with the facts of the case and determine whether or not the guys should have done X or shouldn't have done Y, then fine, go for it. I wont be returning to this forum topic then.


I'm a much more experienced diver than climber, but my perception of the two sports is that the scuba industry has fought for many years to change the public perception of diving from an extreme sport to a casual, relatively risk free recreational activity. PADI has lead the charge but most of the other training agencies (with the notable exception of GUE) have been on board, consistently making the sport more accessible to people who are less fit and less well trained than in the early days of the sport. How many students have you trained who were grossly out of shape or could barely swim? I insisted that they be able to pass the swim test before I would sign them off, but that standard isn't very rigorous at the open water level for most agencies. The basic skill and knowledge level demanded at the open water level is pretty minimal as well, and as you know most new open water grads aren't really ready to start diving on their own without professional supervision, which is one of the main reasons many agencies recommend that they immediately sign up for an advanced open water class. Even then, most agencies allow students to earn an "advanced" OW rating with only 4-6 dives beyond the 4-5 they did in open water class (to the best of my knowledge SSI is the only agency that requires at least 25 dives logged to qualify for that rating) which then allows divers to get into more risky situations, like deep and night diving. Improvements in equipment (easy to use BCDs, high performance regulators, computers) have also made the sport accessible to people who are less well trained, fit, and prepared than in the past, but equipment can fail, and good equipment doesn't make up for poor planning or lack of good skills. Effective navigation - which many divers never master - or pre-dive planning (descend and ascend on the anchor line) would prevent a lot of divers who get separated from boats from getting into that situation in the first place.


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.

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Re: Scuba & Climbing Liability

by John Duffield » Tue Oct 26, 2010 6:04 pm

JHH60 wrote:
Fletch wrote:The effect on climbing guides is that CURRENTLY, there is a real aversion in a court of law to find a guide guilty of neglegence because a jury and judge will most likely side with the reasoning "mountaineering is an extreme sport and if you venture into the mountains, you assume the liability." Additionally, your guide makes you sign a liability waiver (as was such in the scuba case) and they have held up in a court of law UNTIL NOW.

What I would like to discuss is whether or not you think this case (as I do) will reverberate in sporting industries where "you participate, you assume the risk" is the going motto. If you want to jack around with the facts of the case and determine whether or not the guys should have done X or shouldn't have done Y, then fine, go for it. I wont be returning to this forum topic then.


I'm a much more experienced diver than climber, but my perception of the two sports is that the scuba industry has fought for many years to change the public perception of diving from an extreme sport to a casual, relatively risk free recreational activity. PADI has lead the charge but most of the other training agencies (with the notable exception of GUE) have been on board, consistently making the sport more accessible to people who are less fit and less well trained than in the early days of the sport. How many students have you trained who were grossly out of shape or could barely swim? I insisted that they be able to pass the swim test before I would sign them off, but that standard isn't very rigorous at the open water level for most agencies. The basic skill and knowledge level demanded at the open water level is pretty minimal as well, and as you know most new open water grads aren't really ready to start diving on their own without professional supervision, which is one of the main reasons many agencies recommend that they immediately sign up for an advanced open water class. Even then, most agencies allow students to earn an "advanced" OW rating with only 4-6 dives beyond the 4-5 they did in open water class (to the best of my knowledge SSI is the only agency that requires at least 25 dives logged to qualify for that rating) which then allows divers to get into more risky situations, like deep and night diving. Improvements in equipment (easy to use BCDs, high performance regulators, computers) have also made the sport accessible to people who are less well trained, fit, and prepared than in the past, but equipment can fail, and good equipment doesn't make up for poor planning or lack of good skills. Effective navigation - which many divers never master - or pre-dive planning (descend and ascend on the anchor line) would prevent a lot of divers who get separated from boats from getting into that situation in the first place.


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.



I would agree with much of this. I only became certified OW in 2005. I'd tried in 1981 but it was too difficult, I failed, the kids came, I never got back to it. Was much easier in 2005 and I, again as you say, went for AOW in December the same year.

I received opportunities, I really wasn't ready for, by going with an instuctor. I took my U/W photo course in Georgian Bay, temps as 39 F (3C) in 100 feet (3 Bar).

That said, all of my instruction (I have around 13-14 PADI cards now) have never understressed the danger. I've failed both Rec Trimix and Advanced Trimix now. The courses aren't a gimmee!!

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Re: Scuba & Climbing Liability

by JHH60 » Tue Oct 26, 2010 6:19 pm

John Duffield wrote:I would agree with much of this. I only became certified OW in 2005. I'd tried in 1981 but it was too difficult, I failed, the kids came, I never got back to it. Was much easier in 2005 and I, again as you say, went for AOW in December the same year.

I received opportunities, I really wasn't ready for, by going with an instuctor. I took my U/W photo course in Georgian Bay, temps as 39 F (3C) in 100 feet (3 Bar).

That said, all of my instruction (I have around 13-14 PADI cards now) have never understressed the danger. I've failed both Rec Trimix and Advanced Trimix now. The courses aren't a gimmee!!


There have been some in the business that have tried to tighten the standards (e.g., GUE). I think part of the problem is that the dive industry offers certification at the recreational level - in fact, they require it to go out on most dive boats or get gas fills. The implication is that if you are certified you are competent, but in fact the standards for certification from most agencies are low enough that many certified divers are minimally competent to dive within their certification - i.e., unless supervised by a professional they are only safe to dive in benign conditions until they gain a lot of experience. Add cold water, low visibility, current, fog... and most new divers are out of their depth (literally), even diving within the limits of their certification.

By contrast, the climbing industry doesn't offer formal certification below the professional level. You can learn from a guide, from your buddy, from your climbing club in school, but there is no formal certificate of your fitness to climb unless you choose to get one as a guide. Which is to say that there is no presumption that you are competent to do a climb just because you have a card signed by some training agency that says you met the minimum standards as a climber.

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Re: Scuba & Climbing Liability

by fatdad » Tue Oct 26, 2010 6:37 pm

Fletch wrote: "Climber's guide didn't tie a figure eight to a man's harness while climbing Everest and he fell to his death. Family awarded $2.1MM..."

But, what are your thoughts?


Too bad Fletch didn't stick around for our thoughts.

I think injured parties should have the right to sue. The Everest example is particularly apt. Guides haul people up there based upon their ability to pay, not climb. If you, as a guide, knowingly take a complete novice up a mountain, assure him he or she will be fine, you've pretty much guaranteed their safety in my book. If you can't accept the resulting liability then maybe you should be in the business of taking experienced climbers up a mountain, those who understand and accept the risk, rather than herding sheep.

Edit: Oops. Welcome back Fletch.

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Re: Scuba & Climbing Liability

by mrchad9 » Tue Oct 26, 2010 7:14 pm

fatdad, I think you are taking it too far. No one says you assume responsibility for someone, including this scuba verdict. It does not matter the experience level of the client.

What this case did, was say if you just take off and leave some poor soul, through your own action, you bear responsibility for what you did. The verdict had nothing to do with the diver's experience level, and really nothing to do with them being guided either. I would imagine the verdict might be the same if me and my friend went out for a dive on my friend's boat, and he took off and left me there. But the ability to pay might be a bit different.

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Re: Scuba & Climbing Liability

by JHH60 » Tue Oct 26, 2010 7:40 pm

mrchad9 wrote:fatdad, I think you are taking it too far. No one says you assume responsibility for someone, including this scuba verdict. It does not matter the experience level of the client.

What this case did, was say if you just take off and leave some poor soul, through your own action, you bear responsibility for what you did. The verdict had nothing to do with the diver's experience level, and really nothing to do with them being guided either. I would imagine the verdict might be the same if me and my friend went out for a dive on my friend's boat, and he took off and left me there. But the ability to pay might be a bit different.


I agree with you. The diver in this case sounds like he made multiple errors, including getting separated from his buddy, poor navigation, and/or making a free ascent in current and fog, and had he been a more competent diver the accident may not have happened. That said, the DM and boat captain made the unforgivable error of marking him accounted for on the diver roster and leaving without looking for him. The diver probably has more than his share of fault in this case, and the jury recognized this by not awarding the full damages his lawyers requested, but it sounds like the DM and boat captain have at least some liability.

This case is more like a transportation service that carries climbers to a base camp, provides some services to them while in base camp, allows climbers to ascend to the summit as independent teams, then collects them and flies them home. Nobody expects the transportation service to take responsibility for ensuring that climbers are competent to do the climb (although dive boats arguably do take responsibility for this to some extent in that they check diver C-cards before allowing them on board), and if climbers don't return on time there may or may not be any expectation that the transportation service will rescue them vs. just notifying whatever authorities may be around that the climbers are missing. But if climbers don't return and the transportation service doesn't notice, then claims they did return on their passenger flight manifest, and leaves without them, then I think most reasonable people would consider the service to have acted wrongly and to be liable.

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Re: Scuba & Climbing Liability

by John Duffield » Tue Oct 26, 2010 7:44 pm


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Re: Scuba & Climbing Liability

by fatdad » Tue Oct 26, 2010 7:45 pm

mrchad9, I didn't read the opinion (though I will), so please don't think that my example was making a logical extension of that decision. I kind of went off on a related tangent.

I just think the outdoor liability issue in this state (country) is really slanted in favor of the insurer, not the participant, often solely on the premise that they were engaged in an activity where the powers that be have presumptively established to be a dangerous activity. That presumption is used as a cop out to avoid any further examination of the underlying facts and whether the guide, etc., was or was not negligent. IMHO, that approach is wrong. Will this case prompt a reexamination of that approach. Who knows?

BTW, I'm just reading three more posts as I'm submitting this. All decent points.

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Re: Scuba & Climbing Liability

by mrchad9 » Tue Oct 26, 2010 7:47 pm

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.

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