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> The guy who drives the bus is not expected to play a role in the event > you get injured on the slopes, an important reliance issue. Ah but we are talking about post-accident, never said the boat couldn't help after, but we are still not talking about evaluating and screening before. Just as the guy on the bus, the guy on the boat is not expected (I am arguing) to play any role during the time you are off the boat. The role on the boat can certainly include providing emergency help, just as a bus may carry an emergency med kit, or a plane a heart-attack kit. The plane does not screen the passengers for heart condition, it just carries equipment to help in case someone does have an injury during the transport part. > The problem that must be surmounted here is the public's general > perception of who's liable in any given situation-and on that note, I agree. What I am questioning is what role we play in creating that perception and what role we COULD possibly have in changing it (if we wanted to). If I am on the jury, and know nothing about diving, and scuba expert after scuba expert takes the stand and testifies that the boat is simply a taxi for paying customers, and that the taxi performed its duty very well, then I am much more likely to evaluate the case in that way. If instead (as is the case today) scuba expert after scuba expert stands up and and explains how most boats out there thry to screen every customer but this boat didn't do that, then I am much more likely to find against this boat and to expect every boat to do that screening. > Again, unless you have the option of swimming in, or a selection of > boats, you are reliant on the dive boat that delivered you to the site in > a way that you do not rely on a taxi. A jury of laypeople would most > likely see it that way. Still though, the reliance is on the transport part of the duty, not on the customer evaluation part (which I am saying shouldn't be there). Assume the dive boat got you there as promised, and equally well transported you back. You simply got hurt while diving, a part of the trip in which they played no role beyond that of taxi. > It's just not that simple; the dive-boat-operator-as-mere-bus-driver > analogy doesn't float. It is expected that he know at least marginally > more than your average bus driver is expected to know about his typical > fare. It is expected by who? And again are we the ones that create that perception? > You've got to sell that to lay juries, though, and I would argue that to > specifically instruct a jury on straightforward breach of contract in a > negligence type lawsuit would draw some criticism. you wanna explain that a bit more, I'm not sure where I packed the text from my law course I had in college. :-) I mean the negligence part of the lawsuit is what, an implied or inferred duty? If so again, where does the perception come from? > Amen. They should be permitted to withhold certification based purely on > physical fitness, if they so desire. There is no contractual obligation, > even if the person prima facie fulfills the cert. requirements..although > with notions like "body acceptance" and what have you to artificially > interpret reality to fit our wants..I suppose that'd be construed as > discriminatory. As it should be. If fitness requirements are used (IMO), they should have solid basis in scientific fact. How does each percent of body fat actually affect inert gas absorbtion? At what level does it break the models? Can the models be thus adjusted? Then again I don't see why most should be part of any certification anyway. Certainly they make us feel better than the diver will be physically able to handle the diving well, but I guess I'm not paying you to determine my fitness, I'm paying you to teach me how to do the dives covered by the course. Now in Fla the checkout dives may be on a boat in rolling seas where the fitness of the diver effects the ability to do the dives, but in many land-locked areas, we are talking about some very calm quarry diving where the walk from parking to water is minimal. In that setting the requirement seem quite contrived and unrelated to the material at hand. If Jabba The Diver can already do his air dives at Zero-Ripple quarry, why will he be at greater risk using mix? What if by using mix he actually reduces his deco obligations for a specific dive profile he wants to do? Are you really (net result) protecting him by keeping him from mix certification because he can't pass the fitness rqmnts? > The CYA index in this industry goes up every year. I guess the way I see things it should be possible to start bringing it back down by way of changing the way we look at things. > A return to the bus driver analogy; the gas company is not expected, as > part of everyday working knowledge-to be considered > non-negligent/"reasonable person standard"-to be aware of the ins & outs > of trimix diving. The dive store professional IS expected to know about > diving more thoroughly. yes but the contract part is still the same, customer, product, supplier, payment. I'll have to reread on the negligence part. > In court, the distinction won't matter; you are suggesting some sweeping > changes in the way the public will view our sport in a liability lawsuit > context, which may or may not be realistic in scope. Ok, but is it just our sport? It seems to be much more our sport than other sports. If so, the question is why? and what can we do about it? Or do we want to do anything about it? I can't imagine that we WANT it to be this way, where products and services are withheld due to lawsuit worries. We all suffer for that IMO. So are we boring the piss out of the list yet? :-) Mike -- Send mail for the `techdiver' mailing list to `techdiver@aquanaut.com'. Send subscribe/unsubscribe requests to `techdiver-request@aquanaut.com'.
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