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confident it’s in working order; dive within the limits of
his training, ability and comfort level; adhere to generally
accepted safe diving practices; adhere to the dive briefings
and, unless expressly agreed upon otherwise, dive with a
buddy. The diver must be familiar with the skill level and
equipment of his buddy, and there should be an agreed-
upon dive plan.
When is it OK for an operator to deny a diver service?
Steidley:
It is appropriate for an operator to deny service
any time a diver demonstrates unsafe diving practices.
Concannon:
The operator should deny service to a diver
whenever the operator reasonably believes the diver will be a
danger to himself or others. The operator is better off losing
a customer than a life. I would rather defend the rare case
where a disgruntled diver is suing an operator for failing
to provide service than the more common case where a
disgruntled family is suing because the operator lost a diver
who they allowed to dive despite safety concerns.
Hewitt:
A dive operator may deny a diver the opportunity to
dive when the operator objectively and reasonably believes
the diver poses a danger to himself or his fellow divers. The
dive operator cannot deny service on a discriminatory basis.
The consequence of denying service to a diver is that the
dive operator may face a breach of contract claim if money
is accepted in consideration for the dive trip. Such a claim is
highly unlikely (especially when any monetary consideration
is returned to the diver). The risk of the dive operator losing
a customer is far outweighed by the risk of a lawsuit due to
injury of the diver or others. The general consensus of the
lawyers defending scuba-diving cases is that it is better for
the dive operator to err on the side of caution and avoid
unnecessary risks.
What do you consider to be landmark
liability cases in the dive community?
Why?
Hewitt:
In recent years, there have
been three landmark scuba diving cases.
The first, Barrett v. Ambient Pressure
Diving, involved a death related to the
use of a rebreather. In the trial, the jury
acknowledged the risks associated with
technical diving and readily placed
the responsibility on the diver for fully
understanding the equipment, ensuring
it was working properly and using the
equipment correctly during the dive.
They did not hold the manufacturer to
higher safety standards such as those of
automobile or lawnmower manufacturers.
The second, Carlock v. M/V Sundiver,
involved a dive boat leaving a diver at the dive site. The
court ruled that such an incident was not within the scope
of the waiver and release and was not an inherent risk of
scuba diving. The jury determined that every one of the dive
professionals involved had responsibility for the incident.
While the jurors believed the adrift diver had some fault for
failing to adhere to the buddy system and the dive briefing,
they found it relatively minor in comparison to the fault of
the professionals.
The third case, Goetz v. Horizon Charters, involved a
claim of negligent rescue in which two divers became
separated, and more than 30 minutes passed before a
search was initiated to locate the missing diver. The court
ruled that the family of the deceased diver must establish
gross negligence, because the waiver and release signed
by the decedent barred the ordinary negligence claim.
In a precedent-setting decision, the court decided that a
redacted version of the release could be shown to the jury
to demonstrate the deceased diver’s agreement to adhere
to safe diving practices (i.e., buddy-diving procedures). The
case also highlighted the family’s inability to rule out the
possibility that the diver’s underlying health condition played
a role in the death and underscored the coroner’s limited
ability to determine the cause of the drowning.
RESEARCH, EDUCATION & MEDICINE
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E X P E R T O P I N I O N S
Dive operators may deny service to divers who they believe will be a
danger to themselves or other divers.
