Re: Nitrox and liability/waivers

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Posted by MHK on February 27, 2001 at 12:34:56:

In Reply to: Re: Nitrox and liability/waivers posted by Ken Kurtis on February 27, 2001 at 11:34:39:

I was standing right next to you at DEMA at the Risk Management Seminar when Gina Schott( Lesser & Assoc.) told you that by using the current industry waiver that defense would rely on that waiver, which has been used time and time again, and in the overwhelming majority of cases thay would get a summary judgement. Also I was very involved with the fatality on the Cee Ray that was with your shop, and I had many discussions about the waiver, or in that case the lack of waiver which your shop wasn't using at the time. And also with Rudy's death at Farnsworth and I had many, many conversations with the lawyers and they were very candid in there comments in that since the boats were using industry standard waiver's that is what would have likely covered us if any potential litigation resulted. Fortunatley for both of us it never came to that, but that exposure is much more risky than some invented position about Nitrox.

Gina went on further to add that your waiver was *untested* and she couldn't understand why you wouldn't simply use the industry waiver rather than engage in something that hasn't been tested??

You offered up something about California law requiring 10 point type and that the industry waiver is in 8 point type. Rather than simply re-type the waiver in whatever point type you think was appropriate you wrote your own waiver, or if I recall correctly, you call it a statement of understanding or something to that effect.

So that waiver is untested and the lawyers advised against it, but you continue to use it, but yet you imagined some legal position about Nitrox that the lawyers disagree with, the agencies disagree with and the insurance companies disagree with and offer up the *legal liability* issue as a red-herring against the use of Nitrox..

If you don't want to use/sell/pump at your shop that's fine, but that doesn't give you the authroity to suggest to other's that there is any credible *legal liability* issue surrounding Nitrox and it's use...

It's a red-herring and as far as I know you are one of the few remaining outcasts from the initial Nitrox fallout. To much misinformation got spread too quickly and now that the information is available there simply is no sound reason to continue to recommend against it's use, and I'm speaking in your capacity as a diver and an instructor, as a shop owner it is your perogative to run your shop the way you want, but I'm not going to sit iddly by while you misrepresent the legal position respecting Nitrox.

I'm curious, given my discussion yesterday with Pat, how do you justify your non-wreck certified DM's supervising dives at the Olympic and/or Valiant, but yet think that the Nitrox issue is somehow still out there???


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