Re: Proactive/liability

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Posted by Ken Kurtis on January 20, 2003 at 15:52:51:

In Reply to: Re: Genesis of the Reef Seekers out-of-air policy posted by jim on January 20, 2003 at 14:01:45:

Jim asked: "But I think (Jeff) is suggesting that by having a 'proactive' approach you may, in fact, increase your liability by creating (by your own actions)liability in areas where they do not currently exist. It's an interesting suggestion. Have you (and your attornies) given that any consideration??"

I agree with your impression that that's what he's suggesting.

We HAVE discussed this with our attorneys, including one of my now-ex-DMs (he moved to Montana) who was a personal injury plaintiff's attorney (he's the guy who would be suing you if someone got injured).

Essentially what it boiled down to is that they're going to try to make you liable no matter what. So would you rather have your defense be, "We just stand back and wait for something to go wrong and hiope we can save them," or "We do everything we can within reason to try to anticipate and head off problems before they occur and here's what we did in this case"? (And there are certainly cases where a diving jury would think the whole thing was the fault of the diver but a no-diving jury found differently.)

So, we start from the premise that the choices are: (1) Sit back and be reactive, and you stand a chance of getting legally nailed anyhow, or (2) Be proactive and even in the case of a lawsuit, you can at least show that you were using A,B, & C to avoid problems.

Also remmbeer that the "proactive" stuff we do involves restricting or curtailing your activity, not expanding it. In other words, we're not making you do things you don't want to do but are trying to prevent you from doing things you want to do that we think might not be safe.

If you're new to the area and we offer to escort you and your buddy rather than just send you off on your own, we think that's more defensible in the case of an accident. (And we think an accident is MUCH less likely to happen.) If your buddy poops out on you and we match you up with one of our DMs rather than let you dive alone, we think that's more defensible. (And quite frankly, in those two examples, we think we'll be able to control the dive enough to prevent an accident from happening.) If you run out of air - as we've been discussing - and we stop you from diving further, we think that's more defensible than allowing you to coninue to dive and if something happens, justifying why this was a good decision, when the lawyers will point to a dead body as evidence that it wasn't.

As the saying goes: It's always cheaper to refund a pissed-off diver than ever will be to pay off their estate.

Hypothetical case-in-point: You're at Farnsworth and a buddy team with an Advanced cards and 20 dives each is on the boat. They've never done Farnsworth before. Your choices seem to be:

1. Don't let them do the dive based on inexperience.
2. Let them do the dive and hope they'll be fine.
3. Offer to escort them on the dive (assume you have enough staff coverage).

In our case, we'd choose #3 (but I'd be curious to have others chime in with what they think the best choice is and why). Does it give us added liability? Possibly, since we're going to be on the dive with them. However, if by being on the dive with them we can prevent them from going too deep (because they'll be with us) and prevent them from running out of air (because we'll have them frequently checking their gauges), then we may indeed have incurred additional liability but if nothing goes wrong on the dive, it's a moot point.

It's impossible to prove a negative so I can't tell you that we're preventing accidents left and right. But all I can say is that the proactive nature of our style of DMing is something that both my staff and I are comfortable with and we feel it makes for safer dives overall, as well as gives us a bit of piece of mind.

Ken Kurtis
NAUI Instr. #5936
Co-owner, Reef Seekers Dive Co.
Beverly Hills, CA

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