New Discussion - Model Liability Law

Genesis · 9th December 2006, 22:52

I'm putting this here because it is somewhat disjointed from the other related discussions, and may only apply to the United States.

This is precisely the sort of "fix" that I was referring to previously, and is closely modelled after existing Equine (horse-related) Liability Laws which are on the books in 38 (if I counted right) of the 50 states.

Nearly all are essentially identical, varying only slightly in notice and other requirements.

To those who argue that there is a "liability" problem that can't be fixed with regards to instruction requirements and such - the equine industry fixed it! They did so with Equine Liability Laws. There is no such thing as an Equine Certification - both I and my daughter ride horses, and in our travels we have NEVER been asked to produce a "C-Card" (other than a Master Card, that is!) to hack out a horse!

Likewise, if you engage an equine instructor to teach you how to ride, you will be asked about your previous experience, but that instructor will NOT ask you for a C-card evidencing previous training!

Anyway, here it is - let's discuss what you think it good - or bad - about actually fixing the problem at its source!

(Sorry about the mild formatting problems - the editor here really doesn't like WORD's formatting!)

Model Diving Liability Law

Section 1 – Definitions

Diving activities means intentionally traveling under the surface of any body of water, whether of artificial or natural origin, including but not limited to a swimming pool, lake, river, stream, bay or ocean, whether open to the air above or with an overhead obstruction, when using Artificial Means to breathe. Diving Activities commence upon voluntarily entering the water and cease when the Participant, of their own volition and on their own power, returns entirely above the surface of the water.
Artificial Means includes the use of scuba diving or snorkeling equipment of any sort, including but not limited to Scuba Equipment, Snuba Equipment or a Snorkel.
Participant is a natural person who is engaged in Recreational Diving.\
Snorkel means a tube with a mouthpiece that extends above the surface of the water and allows the user to breathe while their face is submerged, using lung power alone for operation.
Compressed Breathing Gas means any mixture of gases intended for human consumption and stored under pressure in a cylinder or other device and intended to be used while engaged in Diving Activities.
Scuba Equipment means equipment intended to meter compressed gas carried by the user, whether for single-breath use (“open circuit”) or re-use (“rebreather”), and optionally includes devices for adjusting the user’s buoyancy and trim while in the water.
Snuba Equipment means equipment intended to meter compressed gas supplied from the surface, whether such gas comes from a tank or an active, operating compressor powered by mechanical or human means.
Recreational Diving means any Diving Activity undertaken for the purpose of personal recreation or pleasure, and explicitly excludes any Diving Activity in which Compensation is received for either the act of diving itself or any act performed while under the surface of the water.
Compensation means any form of money or property having real or intangible value when provided as an inducement to engage in or foreswear any activity related to Recreational Diving.
Recreational Diving Professional means a person who is engaged to provide instruction in any form of Recreational Diving for Compensation.
Recreational Diving Business means any commercial establishment providing services in support of Recreational Diving on a non-discriminatory basis to the general public in return for Compensation.
Diving Physician means a medical doctor who specializes in medicine related to recreational diving, including but not limited to those physicians in the employ of Divers Alert Network (DAN.)
Inherent Risks include but are not limited to air embolism, decompression sickness, medical emergency occurring during Diving Activities, attack or injury caused by aquatic organisms, exhaustion of the user’s breathing gas supply, malfunction of the user’s equipment, disturbance of silt or reduction in visibility by any cause, loss of lighting or propulsion, equipment malfunction, collapse of or entrapment in structures, carbon dioxide poisoning, oxygen toxicity, inert-gas narcosis, hypo or hyperthermia, contact with submerged and semi-submerged objects, entanglement in objects, current, wave action or flow of water, and drowning.

Section 2 - General Provisions

Except as otherwise provided in this act, any person, Recreational Diving Business or Recreational Diving Professional, shall not be liable for an injury or death to a participant in Diving Activities resulting from the inherent risks of these activities, and no Participant nor any Participant’s representative shall have any claim against or recover from any Diving Activity sponsor, Recreational Diving Professional, Recreational Diving Business, or other person for injury, loss, damage, or death of the participant resulting from any of the Inherent Risks of Diving Activities.

Section 3 – Limitation of liability for Diving Activities

Nothing in this act shall prevent or limit the liability of a Recreational Diving Professional, Recreational Diving Business or natural person if that individual or business:

Provided equipment for the use of Participant which was known to be or should have been known to be defective to a degree that was partially or totally responsible for the injury or death of the Participant.
Is a Recreational Diving Business or a Recreational Diving Professional and provided goods or services without making a reasonable inquiry as to the proficiency of the Participant. A written acknowledgement of competence by Participant contemporary with the sale shall be conclusively binding in any dispute over whether reasonable inquiry was made.
Provided Compressed Breathing Gas which, upon later analysis, was shown to be contaminated with Carbon Dioxide, Carbon Monoxide, hydrocarbons or other foreign materials beyond safe limits and this contamination was partially or totally responsible for the injury or death of the Participant.
Left Participant in the water who boarded their vessel for the purpose of a Diving Activity, as evidenced by departing the dive site without the Participant on board and without reporting them as overdue prior to departure to local, state or national authorities.
Struck a Participant with any portion of a vessel who boarded for the purpose of a Diving Activity if (a) the vessel had propulsion engaged at the time the Participant was struck or (b) the vessel had remaining way on from previous maneuvering at the time of the impact.

As a Recreational Diving Professional, was impaired by any physical condition, substance or device which, in the opinion of a Diving Physician, would render the Recreational Diving Professional unfit to perform these functions.

Section 4 – Posting and Notification

1. Every Recreational Diving Business and Recreational Diving Instructor shall:

a. Post one or more signs which contain the warning notice specified in Section 4(2) in any fixed place of business or upon any vessel. The warning notice shall appear on the sign in black block letters of at least one inch in height, and shall be on a contrasting background so as to be clearly distinguishable.

b. Obtain from each Participant a signed written document containing the warning notice specified in Section 4(2), signed by Participant. If the Participant is a minor then the signature of at least one legal guardian of said minor is required.

c. The provisions of this section shall not apply to a natural person who is not a Recreational Diving Business or a Recreational Diving Professional.

2. The sign and document referenced under Section 4(1) shall contain the following warning notice:

Under <INSERT STATE> Law, a Recreational Diving Business or Recreational Diving Instructor is not liable for an injury to, or the death of, a Participant in Diving Activities resulting from the inherent risks of Diving Activities.

Section 5 – Preemption

In order to protect Participants from willful, reckless and wanton acts, any waiver proffered to a Participant seeking to limit or deny any of the limitations in Section (3) of this legislation is void in its entirety as contrary to the public policy of this state.

dgschott · 10th December 2006, 01:02

Interesting....

Any lawyers out there who would comment on such legislation?

What opponents would you have to this kind of ammendent? IE: Plaintiffs Attorney's? The Bar Association? If these groups were oposed to this, I think you could forget this happening - As far as lobbying groups - it doesn't get much more powerful than the bar association or trial lawers association....

Genesis · 10th December 2006, 03:58

Quote: (Originally Posted by dgschott)

What opponents would you have to this kind of ammendent? IE: Plaintiffs Attorney's? The Bar Association? If these groups were oposed to this, I think you could forget this happening - As far as lobbying groups - it doesn't get much more powerful than the bar association or trial lawers association....

It is an almost exact copy of the Equine Law.

However, it throws a bone or two to the plaintiff's bar. Specifically, it prohibits waivers that go beyond the provisions of the statute (most equestrian liability laws either specifically allow broader waivers or are silent on the matter, leaving that for litigation), and leaves open causes of action for truly negligent behavior that currently find almost no possibility of success under the waiver system.

I see no downsides, other than the fact that it destroys any claim that "liability" is the reason for forced certification. In other words, it shuts down the BS machine. With that out of the way we can have the best of all worlds - instruction for the sake of instruction (rather than "card-packing"), true differentiation between instructors (as opposed to a rigid, forced S&P based curriculum with attendant fixed costs), lower costs for dive sites, boat operators and dive shops and - for divers - freedom.

Once again, this is what you have in the equine world today.

I've been carefully examining the equestrian sports for a while, as my daughter has recently become involved in them. It is a sport that has a significant injury rate (about 30,000 annually in the US), many of them serious (10,000 head-trauma related), far higher than diving. Approximately 100 people die annually in the US alone from riding-related injuries, which is in the same realm as diving deaths.

Years ago Equestrian business folk recognized the threat that unbridled litigation posed to their industry. They could have gone down a road of mandatory training and certifications. Instead, they decided to lobby for protection from all but egregious acts by those in the profession, recognizing that personal responsibility and freedom were the better path.

This is a success story - and one we should model.

Genesis · 14th December 2006, 15:14

BTW, here's an example from a real case in Florida. This is, as near as I can tell, the latest available cite on diving releases in Florida (at appeal), which means that it is very likely controlling law here.

Quote:

The language of the release is clear and unambiguous, reflecting the decedent's assumption of the risks inherent in scuba diving and his intent to release Appellees from all liability, including any liability resulting from their own negligence. Although viewed with disfavor under Florida law, such exculpatory clauses are valid and enforceable when clear and unequivocal. Theis v. J & J Racing Promotions, 571 So. 2d 92, 94 (Fla. 2d DCA 1990), rev. denied, 581 So. 2d 168 (Fla. 1991). The release expressly states that the decedent "understands and agrees" that none of the "Released Parties" (Appellees) "may be held liable or responsible in any way for any injury, death, or other damages to me [decedent] or my family, heirs, or assigns that may occur as a result of my [decedent's] participation in this diving class or as the result of the negligence of any party, including the Released Parties, whether passive or active." The release goes on to state that the decedent intends to exempt and release Appellees from all liability or responsibility whatsoever . . . "HOWEVER CAUSED, INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE."
.....
The release also releases Appellees from any "gross negligence" as alleged in the Amended Complaint. The term "negligence" as used in the release is not limited, and therefore should be construed as intending to encompass all forms of negligence, simple or gross, with only intentional torts being excluded from the exculpatory clause. Theis, 571 So. 2d at 94.

cite: Borden v. Phillips, 752 So.2d 69 (Fla.App. Dist.1 02/16/2000)

If you want to know why I absolutely refuse to "play nice" with instructors and the diving industry, this is the reason.

I've heard lawyers opine that "oh those releases don't really mean that" and "you can't waive gross negligence."

Oh yes you can! In Florida, at least, it appears that the precedent-setting law (that is, the published appelate record) is that diving releases are fully enforceable, even if they are waiving gross negligence.

So yes, under the current system your instructor can indeed be drunk and your estate has no right of recovery against him, the shop he teaches for or his agency if you get killed as a direct consequence.

Read the opinion guys, then tell me how you defend an industry that claims you need to trust them to learn how to dive, but has managed to make it so that if you do trust them, and they screw up from any cause other than deliberately harming you, there's not a thing you can do about it.

And don't ever believe that a diving release doesn't mean what it says. There is a very good chance that indeed it does, despite what those who want you to believe that they will be able to sue and win if you get hurt will try to tell you.

Just ask Borden's family.

9th December 2006, 22:52	#1 (permalink)
Genesis Bubbless Box of Death Current Rebreather/s: Home Build Other Rebreather/s: Home Build Join Date: Oct 2005 Location: Sunny Florida Posts: 1,453	New Discussion - Model Liability Law I'm putting this here because it is somewhat disjointed from the other related discussions, and may only apply to the United States. This is precisely the sort of "fix" that I was referring to previously, and is closely modelled after existing Equine (horse-related) Liability Laws which are on the books in 38 (if I counted right) of the 50 states. Nearly all are essentially identical, varying only slightly in notice and other requirements. To those who argue that there is a "liability" problem that can't be fixed with regards to instruction requirements and such - the equine industry fixed it! They did so with Equine Liability Laws. There is no such thing as an Equine Certification - both I and my daughter ride horses, and in our travels we have NEVER been asked to produce a "C-Card" (other than a Master Card, that is!) to hack out a horse! Likewise, if you engage an equine instructor to teach you how to ride, you will be asked about your previous experience, but that instructor will NOT ask you for a C-card evidencing previous training! Anyway, here it is - let's discuss what you think it good - or bad - about actually fixing the problem at its source! (Sorry about the mild formatting problems - the editor here really doesn't like WORD's formatting!) Model Diving Liability Law Section 1 – Definitions Diving activities means intentionally traveling under the surface of any body of water, whether of artificial or natural origin, including but not limited to a swimming pool, lake, river, stream, bay or ocean, whether open to the air above or with an overhead obstruction, when using Artificial Means to breathe. Diving Activities commence upon voluntarily entering the water and cease when the Participant, of their own volition and on their own power, returns entirely above the surface of the water. Artificial Means includes the use of scuba diving or snorkeling equipment of any sort, including but not limited to Scuba Equipment, Snuba Equipment or a Snorkel. Participant is a natural person who is engaged in Recreational Diving.\ Snorkel means a tube with a mouthpiece that extends above the surface of the water and allows the user to breathe while their face is submerged, using lung power alone for operation. Compressed Breathing Gas means any mixture of gases intended for human consumption and stored under pressure in a cylinder or other device and intended to be used while engaged in Diving Activities. Scuba Equipment means equipment intended to meter compressed gas carried by the user, whether for single-breath use (“open circuit”) or re-use (“rebreather”), and optionally includes devices for adjusting the user’s buoyancy and trim while in the water. Snuba Equipment means equipment intended to meter compressed gas supplied from the surface, whether such gas comes from a tank or an active, operating compressor powered by mechanical or human means. Recreational Diving means any Diving Activity undertaken for the purpose of personal recreation or pleasure, and explicitly excludes any Diving Activity in which Compensation is received for either the act of diving itself or any act performed while under the surface of the water. Compensation means any form of money or property having real or intangible value when provided as an inducement to engage in or foreswear any activity related to Recreational Diving. Recreational Diving Professional means a person who is engaged to provide instruction in any form of Recreational Diving for Compensation. Recreational Diving Business means any commercial establishment providing services in support of Recreational Diving on a non-discriminatory basis to the general public in return for Compensation. Diving Physician means a medical doctor who specializes in medicine related to recreational diving, including but not limited to those physicians in the employ of Divers Alert Network (DAN.) Inherent Risks include but are not limited to air embolism, decompression sickness, medical emergency occurring during Diving Activities, attack or injury caused by aquatic organisms, exhaustion of the user’s breathing gas supply, malfunction of the user’s equipment, disturbance of silt or reduction in visibility by any cause, loss of lighting or propulsion, equipment malfunction, collapse of or entrapment in structures, carbon dioxide poisoning, oxygen toxicity, inert-gas narcosis, hypo or hyperthermia, contact with submerged and semi-submerged objects, entanglement in objects, current, wave action or flow of water, and drowning. Section 2 - General Provisions Except as otherwise provided in this act, any person, Recreational Diving Business or Recreational Diving Professional, shall not be liable for an injury or death to a participant in Diving Activities resulting from the inherent risks of these activities, and no Participant nor any Participant’s representative shall have any claim against or recover from any Diving Activity sponsor, Recreational Diving Professional, Recreational Diving Business, or other person for injury, loss, damage, or death of the participant resulting from any of the Inherent Risks of Diving Activities. Section 3 – Limitation of liability for Diving Activities Nothing in this act shall prevent or limit the liability of a Recreational Diving Professional, Recreational Diving Business or natural person if that individual or business: Provided equipment for the use of Participant which was known to be or should have been known to be defective to a degree that was partially or totally responsible for the injury or death of the Participant. Is a Recreational Diving Business or a Recreational Diving Professional and provided goods or services without making a reasonable inquiry as to the proficiency of the Participant. A written acknowledgement of competence by Participant contemporary with the sale shall be conclusively binding in any dispute over whether reasonable inquiry was made. Provided Compressed Breathing Gas which, upon later analysis, was shown to be contaminated with Carbon Dioxide, Carbon Monoxide, hydrocarbons or other foreign materials beyond safe limits and this contamination was partially or totally responsible for the injury or death of the Participant. Left Participant in the water who boarded their vessel for the purpose of a Diving Activity, as evidenced by departing the dive site without the Participant on board and without reporting them as overdue prior to departure to local, state or national authorities. Struck a Participant with any portion of a vessel who boarded for the purpose of a Diving Activity if (a) the vessel had propulsion engaged at the time the Participant was struck or (b) the vessel had remaining way on from previous maneuvering at the time of the impact. As a Recreational Diving Professional, was impaired by any physical condition, substance or device which, in the opinion of a Diving Physician, would render the Recreational Diving Professional unfit to perform these functions. Section 4 – Posting and Notification 1. Every Recreational Diving Business and Recreational Diving Instructor shall: a. Post one or more signs which contain the warning notice specified in Section 4(2) in any fixed place of business or upon any vessel. The warning notice shall appear on the sign in black block letters of at least one inch in height, and shall be on a contrasting background so as to be clearly distinguishable. b. Obtain from each Participant a signed written document containing the warning notice specified in Section 4(2), signed by Participant. If the Participant is a minor then the signature of at least one legal guardian of said minor is required. c. The provisions of this section shall not apply to a natural person who is not a Recreational Diving Business or a Recreational Diving Professional. 2. The sign and document referenced under Section 4(1) shall contain the following warning notice: Under <INSERT STATE> Law, a Recreational Diving Business or Recreational Diving Instructor is not liable for an injury to, or the death of, a Participant in Diving Activities resulting from the inherent risks of Diving Activities. Section 5 – Preemption In order to protect Participants from willful, reckless and wanton acts, any waiver proffered to a Participant seeking to limit or deny any of the limitations in Section (3) of this legislation is void in its entirety as contrary to the public policy of this state. __________________ "A venturesome minority will always be eager to get off on their own, and no obstacles should be placed in their path; let them take risks for Godsake, let them get lost, sunburnt, stranded, drowned, eaten by bears, buried alive under avalanches - that is the right and privilege of any free American." http://www.denninger.net http://www.diversunion.org/liability.htm - Fix the Diving Cert racket Last edited by Genesis : 11th December 2006 at 06:35.
(Offline)

10th December 2006, 01:02	#2 (permalink)
dgschott Liquid Productions, LLC Current Rebreather/s: Megalodon Other Rebreather/s: Join Date: Aug 2005 Location: Aston, PA Posts: 115	Re: New Discussion - Model Liability Law Interesting.... Any lawyers out there who would comment on such legislation? What opponents would you have to this kind of ammendent? IE: Plaintiffs Attorney's? The Bar Association? If these groups were oposed to this, I think you could forget this happening - As far as lobbying groups - it doesn't get much more powerful than the bar association or trial lawers association.... __________________ David Schott Liquid Productions, LLC
(Offline)

10th December 2006, 03:58	#3 (permalink)
Genesis Bubbless Box of Death Current Rebreather/s: Home Build Other Rebreather/s: Home Build Join Date: Oct 2005 Location: Sunny Florida Posts: 1,453	Re: New Discussion - Model Liability Law Quote: (Originally Posted by dgschott) What opponents would you have to this kind of ammendent? IE: Plaintiffs Attorney's? The Bar Association? If these groups were oposed to this, I think you could forget this happening - As far as lobbying groups - it doesn't get much more powerful than the bar association or trial lawers association.... It is an almost exact copy of the Equine Law. However, it throws a bone or two to the plaintiff's bar. Specifically, it prohibits waivers that go beyond the provisions of the statute (most equestrian liability laws either specifically allow broader waivers or are silent on the matter, leaving that for litigation), and leaves open causes of action for truly negligent behavior that currently find almost no possibility of success under the waiver system. I see no downsides, other than the fact that it destroys any claim that "liability" is the reason for forced certification. In other words, it shuts down the BS machine. With that out of the way we can have the best of all worlds - instruction for the sake of instruction (rather than "card-packing"), true differentiation between instructors (as opposed to a rigid, forced S&P based curriculum with attendant fixed costs), lower costs for dive sites, boat operators and dive shops and - for divers - freedom. Once again, this is what you have in the equine world today. I've been carefully examining the equestrian sports for a while, as my daughter has recently become involved in them. It is a sport that has a significant injury rate (about 30,000 annually in the US), many of them serious (10,000 head-trauma related), far higher than diving. Approximately 100 people die annually in the US alone from riding-related injuries, which is in the same realm as diving deaths. Years ago Equestrian business folk recognized the threat that unbridled litigation posed to their industry. They could have gone down a road of mandatory training and certifications. Instead, they decided to lobby for protection from all but egregious acts by those in the profession, recognizing that personal responsibility and freedom were the better path. This is a success story - and one we should model. __________________ "A venturesome minority will always be eager to get off on their own, and no obstacles should be placed in their path; let them take risks for Godsake, let them get lost, sunburnt, stranded, drowned, eaten by bears, buried alive under avalanches - that is the right and privilege of any free American." http://www.denninger.net http://www.diversunion.org/liability.htm - Fix the Diving Cert racket
(Offline)

14th December 2006, 15:14	#4 (permalink)
Genesis Bubbless Box of Death Current Rebreather/s: Home Build Other Rebreather/s: Home Build Join Date: Oct 2005 Location: Sunny Florida Posts: 1,453	Re: New Discussion - Model Liability Law BTW, here's an example from a real case in Florida. This is, as near as I can tell, the latest available cite on diving releases in Florida (at appeal), which means that it is very likely controlling law here. Quote: The language of the release is clear and unambiguous, reflecting the decedent's assumption of the risks inherent in scuba diving and his intent to release Appellees from all liability, including any liability resulting from their own negligence. Although viewed with disfavor under Florida law, such exculpatory clauses are valid and enforceable when clear and unequivocal. Theis v. J & J Racing Promotions, 571 So. 2d 92, 94 (Fla. 2d DCA 1990), rev. denied, 581 So. 2d 168 (Fla. 1991). The release expressly states that the decedent "understands and agrees" that none of the "Released Parties" (Appellees) "may be held liable or responsible in any way for any injury, death, or other damages to me [decedent] or my family, heirs, or assigns that may occur as a result of my [decedent's] participation in this diving class or as the result of the negligence of any party, including the Released Parties, whether passive or active." The release goes on to state that the decedent intends to exempt and release Appellees from all liability or responsibility whatsoever . . . "HOWEVER CAUSED, INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE." ..... The release also releases Appellees from any "gross negligence" as alleged in the Amended Complaint. The term "negligence" as used in the release is not limited, and therefore should be construed as intending to encompass all forms of negligence, simple or gross, with only intentional torts being excluded from the exculpatory clause. Theis, 571 So. 2d at 94. cite: Borden v. Phillips, 752 So.2d 69 (Fla.App. Dist.1 02/16/2000) If you want to know why I *absolutely refuse* to "play nice" with instructors and the diving industry, this is the reason. I've heard lawyers opine that "oh those releases don't really mean that" and "you can't waive gross negligence." Oh yes you can! In Florida, at least, it appears that the precedent-setting law (that is, the published appelate record) is that diving releases are fully enforceable, even if they are waiving gross negligence. So yes, under the current system your instructor can indeed be drunk and your estate has no right of recovery against him, the shop he teaches for or his agency if you get killed as a direct consequence. Read the opinion guys, then tell me how you defend an industry that claims you need to trust them to learn how to dive, but has managed to make it so that if you do trust them, and they screw up from any cause other than deliberately harming you, there's not a thing you can do about it. And don't ever believe that a diving release doesn't mean what it says. There is a very good chance that indeed it does, despite what those who want you to believe that they will be able to sue and win if you get hurt will try to tell you. Just ask Borden's family. __________________ "A venturesome minority will always be eager to get off on their own, and no obstacles should be placed in their path; let them take risks for Godsake, let them get lost, sunburnt, stranded, drowned, eaten by bears, buried alive under avalanches - that is the right and privilege of any free American." http://www.denninger.net http://www.diversunion.org/liability.htm - Fix the Diving Cert racket
(Offline)

Thread Tools
Show Printable Version Email this Page
Display Modes
Linear Mode Switch to Hybrid Mode Switch to Threaded Mode