Posted by Ken Kurtis on February 27, 2001 at 22:45:45:
In Reply to: Re: PADI's comments re legal liability & Nitrox posted by MHK on February 27, 2001 at 17:33:16:
(Michael Kane posted) "What I'm trying to clear up . . . is that . . . there isn't any added risk incurred with respect to not being certified in Nitrox and being the DM when you have Nitrox diver's on the boat . . ."
I talked with Pat late this afternoon (after her post). Let me see if I can be so bold as to summarize both her and my positions and (hopefully) simply this for Michael and anyone else who may still be confused.
Michael is correct in asserting that under the current insurance policies, a non-nitrox-certified DM/Instructor WOULD be covered in the case of an accident/suit. But this was not, and has never been, the issue. (Nor has it ever been questioned by me or anyone else that I've seen post.)
The question has been whether a non-nitrox-certified DM/Instructor is exposed to GREATER LIABILITY supervising a nitrox dive than a nitrox-certified person. Here's Pat's comment:
". . . if a nitrox certified diver . . . 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."
That's the essence of the problem. If we have someone not certified in nitrox supervising the diving, we have the potential (not the assurance) of them giving advice beyond their expertise. THAT'S where the added liability comes from.
And from a business standpoint - as I've said over and over again - I'm not willing to expose my staff or my business to that potential additional liability.
A more extreme example I've used is someone diving a 40% O2 mix on a 130' flat bottom, asking the non-nitrox-certified DM if it was okay to dive that mix to that depth. If the DM utters something as seemingly innocuous as, "Well . . . I'm not nitrox-certified, but . . . I guess so," the DM's ignorance in the use of the gas has created exactly the added liability that is of concern.
(And remeber that if something like this goes to trial, we will be judged not by a jury of divers and peers, but by a jury not up-to-speed in diving, let alone the nuances of nitrox. See the serparate thread above.)
Would we be covered for the added exposure to liability by our insurance???? No question in my mind. (Pat's "ABSOLUTELY" comment.) But can we mitigate the need to use such insurance by avoiding becoming an obvious target and getting sued in the first place? Again, I would reply, "Absolutely."
Does the same issue apply to a non-wreck-specialty DM or a non-night-specialty DM? Perhaps, in the strictest sense of interpretation.
But I would argue that the areas where our industry, as a standard of care, REQUIRES an additional certification (nitrox, cave, mixed gas), stand apart from the other areas where such a card is NOT required (wreck, night, etc.) and that the requirement for a card sets a higher duty of care and supervision.
There's been talk about the opinion of legal experts. It's important to remember that every day in this country, two lawyers will enter a courtroom to argue a lawsuit, both convinced that THEIR arguments will win the day. And at the end of the trial . . . EVERY TIME . . . one of them will be wrong.
The real trick, IMHO, is not to hope that you have the lawyer who was right . . . but to avoid the need for the lawyer in the first place.
Ken Kurtis
NAUI Instr. #5936
Co-owner, Reef Seekers Dive Co.
Beverly Hills, Ca.