As dive professionals we have to maintain liability insurance in case we are ever sued in relation to a dive accident we are associated with. Most of us pay our premium, receive the certificate of insurance and then don’t worry about it until next year. We are comfortable that the insurance is in place and we have some protection. However, with some contemplation about just what it is the insurance is protecting us from, we can have a better understanding about what our obligations are and, in turn, become better divers and dive leaders.
Our professional liability insurance is to help protect us if we are sued because someone is claiming we were negligent in our duties in relation to a dive accident. But what exactly is negligence? According to Black’s Law Dictionary it is “The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.” In a simplified dive leader context, it means failing to do something a normal reasonable dive leader would do or doing something that a normal reasonable dive leader would not do.
To get to the professional diver level we all have undergone extensive training, both in and out of the classroom and water. We have the tools necessary to make “reasonable” decisions with leading a dive. It’s when we think that the normal rules don’t apply or it will be ok if just this once we don’t follow the normal procedure that trouble occurs. The training and knowledge is there, we just need to acknowledge and follow it. When making a dive decision keep in mind what would the reasonable prudent diver do. For example, if the waves are much higher than normal and you have a boat full of newly open water certified divers, the reasonable prudent course of action would be to call the dive and reschedule. If the dive leader took the newbies out in those conditions and someone was hurt a lawsuit would most likely follow. The attorney for the injured party, or plaintiff, would argue that the dive leader’s actions under the circumstances were not reasonable. The attorney for the dive leader, who is now a defendant in the case, will do their best to show the dive leader acted reasonable, which in this scenario might be a high hill to climb.
For there to be negligence there needs to be four things: (1) duty, (2) breach, (3) proximate cause; and (4) injury. In the above example, there is a “duty.” It’s the duty of the dive leader to lead a safe dive, this includes determining if conditions are too bad to dive for that day. The “breach” of the duty would be the dive leader ignoring the higher than usual waves and the basic training level of the divers under their care and going on with the dive. For parts (3) and (4) the “injury” has to be “proximately caused” by the dive leaders breach of duty. For example if the injured diver was swept under and hit by the dive boat, that would be proximately related to the dive leader’s decision to dive in the higher waves. If the injured diver was hurt by fire coral, this most likely would not be found to be as a proximate cause of the dive leader’s breach. (So under that scenario the dive leader would not be negligent since the breached duty did not proximately cause the injury).
Negligence very much depends on the surrounding facts. If the same dive leader is leading training for an underwater recovery unit, the decision to dive in the higher waves may not be a breach of duty. These divers are specialized and need to train in adverse conditions since they are usually faced with adverse conditions. They would be ill prepared for such conditions, if they only dove in the calmest of water and weather. If an underwater recovery unit leader did only train their team in calm, warm waters, they would probably be negligent if one of the divers was hurt in a rescue attempt. Here, the duty was to prepare the diver’s for incidents that normally happen in the worst of conditions.
The take-away is that every dive situation is unique. If an incident occurs, it is how the diver leader prepared for and reacted to the situation that will dictate whether or not the incident and any resulting injury was due to negligence. Keeping the above in mind for every dive will keep divers out of court and in the water, where we would all prefer to be.
Jason is an attorney at Goldberg Segalla who specializes in Toxic Tort/Environmental law, Product Liability and General Liability matters. He is also a Divemaster with Dip 'N Dive in Buffalo, NY.