Posted by Pat Fousek on February 27, 2001 at 15:32:33:
In Reply to: Nitrox and the *legal liability issue* posted by MHK on February 26, 2001 at 15:34:32:
Hello to All,
I want to clarify some things posted in this chain so a PADI Member, or any dive professional for that matter, does not misunderstand or misinterpret the information here. Be prepared - for those of you who know me, you know I'm long winded.
First though, I should state that I am not an attorney. I have been the director of legal affairs at PADI for several years and worked in the legal department (in one position or another) for 11 years now. The information I provided to Ken, Michael and to anyone else who calls me is not legal advice and not intended to be. I am also a PADI Instructor (over 15 years).
I talked with Michael on Monday re potential legal liability of a non-Nitrox divemaster/instructor supervising a nitrox dive. His initial question, if I recall correctly, was whether it would be covered under the insurance policy. I responded that this would not be an issue. There is no warranty in the policy (the PADI-sponsored policy offered by CNA through Vicencia & Buckley) that requires the insured to have a specific certification in order to supervise a dive. This may be where I would have emphatically said "ABSOLUTELY." However, I would suggest each dive professional check with his/her insurance agent and/or read the policy carefully. There are warranties (and exclusions as have been pointed out) of which you need to be aware.
As to legal liability - we did discuss the scenarios that have been mentioned in this chain. I used myself as an example (I'm not a nitrox diver). If I were serving as a divemaster aboard a boat where nitrox dives were being conducted, I could still supervise the overall activities. However, if a nitrox certified diver (an assumption unless I checked his certification card, he could be using a tank provided by his friend)asked me if he could make this dive to xx feet on a 32% mix, and I responded, this would likely create liability on my part. Especially if my answer was incorrect. However, if I responded, "look, I'm not experienced in nitrox, I suggest you discuss this with your buddy and/or consult a reference," I'm a bit safer. However, let me state for the record - you can still be sued. I've seen it happen. Members often ask me if they will be liable for something. I almost always respond, let me answer that with another question - "will you be sued?" The answer is likely, yes. That's why I have a full time job. Liability is something that will be determined by the court and/or a jury.
One point I think Ken was trying to make (I saw his initial posting, courtesy of Michael), is that attorneys can sue for anything. I wouldn't put it past them to sue the operator (store and boat) and/or the instructor/divemaster alleging he should not have been in a position of responsibility/authority without the "proper" (however that may be defined by the attorney) training, experience, certification, etc. This is where we talked about the non-night diving specialty instructor supervising night dives (or wreck, or whatever). It happens every day, and so far, no one's rasied an issue. But it could very simply depend upon the circumstances. Did I tell the diver that it would be okay to dive without a back-up light, how to rig a line for penetration, etc.
Also, as one reply so correctly pointed out - Judge nor Justice appears before or after my name, nor Jeana Schott's (altho' she is an attorney). More importantly, we're not jurors either.
There is no "absolute" whcn it comes to liability. There are simply defenses and rolls of the dice. This is also true for the liability release. Although the liabilty release currently used by most PADI Members for training (#10072) has been tested and tried several times in many jurisdictions - each case and each court is different. And, although the general release has been tested, there are others that have not - supervisory, boat diving, travel & excursion. These have been developed, with the advice of legal counsel, as the best thing we have at this point. But, there's no guarantees. I am aware of several PADI Members who have chosen to modify the relase in some fashion to meet their particular needs. Depending on the situation, PADI may not have developed a release for the circumstances at issue.
One last comment - I'm almost done - please check with your insurance agent as to coverage questions. There was a comment about the requirement to purchase a separate insurance policy for EANx mixes greater than 40%. This may or may not be true. Don't make assumptions you're covered, but also don't make assumptions you're not. The PADI-sponsored professinal liability insurance policy (instructor policy) has no exclusion as to enriched air mix. However, it does not provide coverage for gas mixes other than EANx (trimix, heliox, etc.???). The use of oxygen is covered under the TecRec endorsement (an additional fee). Please email me or call me if you have questions on this.
To all of you, thank you for the opportunity to ensure there's a clearer (I hope) understanding of the risks of every aspect of this business we love. I typically don't track chains like this - too much work to do - but to you (Bob), thank you for bringing it to my attention. If any of you would like to speak to me call 800.729.7234, ext 326 or email at email@example.com.
Regards and safe diving!
Director, Legal & Risk Management
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