Re: PADI's comments re legal liability & Nitrox

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Posted by Pat Fousek on February 28, 2001 at 08:04:24:

In Reply to: Re: PADI's comments re legal liability & Nitrox posted by Ken Kurtis on February 27, 2001 at 22:45:45:

Hello again,

To respond to Michael and Ken, first, keep in mind that what I posted is not "advice." I'm not an attorney and cannot give legal advice. What I posted was my analysis of the circumstances being discussed. And, keep in mind that the scenario is not all inconclusive. Things that may arise during an actual case may have significant impact. For example, what are the policies of the boat/store invovled (the policy is to check log books and cert cards - did they in this instance?). The possibilities are endless and in the interest of time and the pile of work on my deks, I'll not go into it here.

Also, I'm not sure that I would state or agree the EANx issue is more or less likely to be a potential problem than a wreck dive issue. Again, it depends (I learned that from my attorney friends ;-) ). I typically analyze things from the perspective of the plaintiff's attorney's mind (if I may be so bold) so we can prepare a defense before the manual is written, the diver is certified, etc. I could see an aggressive attorney, with very little substantive facts on his side, alleging liability since all PADI materials discuss (in fact almost pound in) the need for continuing education before embarking on dives in conditions or environments other than those in which one was trained. By allowing an open water diver to make a dive in excess of 60 feet does the divemaster have increased liability?? - only the jury will decide (afer all other defenses have been exhansted).

I'd suggest we allow each of us to ponder what risks we, as dive professionals and business people, choose to take in our every day lives. And, keep in mind we ask and expect the certified divers (and student divers) to do the same thing each time they participate in diving activities. Let's not create scenario after scenario and start giving ideas to customers and/or plaintiff's attorneys. They're quite creative without our help.

I'm not trying to skirt the issue, simply saying there are risks in everything we do and only we can decide which ones we will take and how we choose to manage them. To share our personal thoughts or decisions on what we are and are not willing to do should not be a problem. Just like I like red and others may disagree, I can still say I think red is a beautiful color. I also like diving, but that water's wet (and can be dangerous). I'd suggest for the benefit of all we steer clear of third party discussions and/or hearsay as things may get lost in the translation, sometimes even in the inflection of a voice, not to mention the entire scenario may not be shared - due to time and space constraints. I have no reason to believe anyone is intentionally misrepresenting these discussions, just that human nature causes us to focus on those issues most important to us. (I think it's called selective listening and husbands are especially good at it LOL.) I haven't seen anything (altho' I've just stepped into this) necessarily being stated as fact, but by tossing out names, it may sometimes give that impression. If any of us have conversations with other folks, I suggest we offer up that person (assuming the person is willing) for personal contact, or at the least represent that "... after a conversation with training organization ABC, insurance company XYZ, attorney 123, I'm going to do this .....". Then we, as competent adults can consider this in our decision making process just like all other issues we consider. I read my horoscope this AM and am not sure if I'm going to have a good day or not. I alone can choose to allow that to influence me - I think I won't.

I'm signing off. I can see how these things can be addictive and maybe that's why I've avoided be drageed into a discussion. It's after 8:00 and I've not tackled anything on my long list.

If you would like to discuss this further, please contact me personally - 800.729.7234, ext 325 - as I'm going to try to get on with the tasks at hand.

Thank you, again, for the opportunity to be of service. Check your policy, have an attorney for a friend and make informed choices.

Pat Fousek
Director, Legal & Risk Management
PADI Worldwide

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