Mailing List Archive Mailing List Archive
On Mon, 2 Mar 1998 13:53:58 -0500 (EST) zimmmt@au*.al*.co* (Mike Zimmerman) writes: > >For the sake of argument, no I am really not kidding. Why do you >say a dive boat is liable, but we would never think of suing >the guy who drove the bus to the ski slope? 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. >Seriously, I concede WE think of them differently, but is there >a true difference in the contract between the "transporter" and >the customer? Or is it just perception? I think that under most conventions of contract law, you are correct in assuming that the basic contract could be construed as that limited in scope, but that does not preclude negligence claims under tort liability. 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, the guy who drove the bus to the ski slopes frequently winds up named in the initial suit as filed, or at least his employer-in civil law, the deep pockets draw the most fire. >I am arguing that it is perception, and that WE are the ones >who perpetuate it. By the same token, we can also stop >perpetuating it (slowly) by shifting to the idea that the boat >is just a taxi. And (more importantly) testifying to that >in court (those who would testify as scuba "experts"). 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. > >> If this operator can be found to have ignored obvious signs that the >diver, > >You can't ignore obvious signs if you don't spend time looking for >signs at all. Customer here, customer paid, customer know where we're >going, >customer of legal age to make own decisions? Good time to head out. 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. If the dive boat operator can be shown in court to possess any ability to gauge a diver's potential risk more accurately than the average man on the street, there could still be liability issues there. > >Maybe NEVER, I concede that as well, but I am arguing that if more >cases >were to be settled as I am suggesting (where the limit of duty was to >perform the transportation), then perhaps more would end up getting >tossed out in the pre-trial phases as a set of precedents formed >showing >that once the transporter performs the transporing duty, their >job was over and done without breach. 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. >> It sounds cold, perhaps, but I am not >> going to allow some irresponsible buffoon's "right" to do whatever >he >> wants to himself put MY ass on the line. > >Frankly I don't want your ass on the line either, and not suggesting >that it go there, I'm suggesting that the liability question >would fall on the basis of the contract, and that would only >be for the transportation. The trial would not be on >whether you did everything you could to be sure your customer >knew what they were doing, but that you got them there and >were prepared to bring them home as well. Ah-but if it can be shown that you did know that you were aware that they were a hazard to themselves, then what? >Let me ask this, wouldn't it be nice if the liability were >restricted to just that? Yes and no. >One way or another (I am arguing) under your system you are still >accountable. As soon as you start screening for ability then someone >will >come along and suggest that your screening was negligent when >even the most qualified diver has some mishap and does not >survive, or when the perfect liar shows up and bluffs his way on. Screening in good faith will stand up far better than awareness not acted upon, or even a "should-have-known" not acted upon. >> If a diver has the right to make his own risk evaluations without >concern >> for how his decisions affect others, the why doesn't it follow that >the >> agencies can limit their risk exposure in any way they see fit? > >Where am I suggesting that they not? I am saying that I think some >ways they might think to accomplish that will actually not limit >their liability (as I see things), but nowhere am I saying they have >to >certify someone they don't want to. 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. >I fully support very thorough training, it is what I seek out for >myself. But I do think a lot of training courses have a lot >of things wrapped around them that have little to do with >the topic of the class, and more to do with some attempt at >protectionism. The CYA index in this industry goes up every year. >When you buy your bottle of helium from the gas supplier does he >make sure you know how to dive trimix, or does he simply >provide a service for payment? Why should a dive store presume >to play a greater role than that? Few of us would suggest that >the gas supplier should have had any responsibility for how >the customer used his product, so why do we perceive the >dive store differently? If some moron wants to dive mix without >seeking training, we can't stop him. So why do we try >(in dive stores) so hard? 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. >Again is there a real difference in liability or is it >perception? 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. __________________ William R. Robinson phreatic@ju*.co* __________________ > _____________________________________________________________________ You don't need to buy Internet access to use free Internet e-mail. Get completely free e-mail from Juno at http://www.juno.com Or call Juno at (800) 654-JUNO [654-5866] -- Send mail for the `techdiver' mailing list to `techdiver@aquanaut.com'. Send subscribe/unsubscribe requests to `techdiver-request@aquanaut.com'.
Navigate by Author:
[Previous]
[Next]
[Author Search Index]
Navigate by Subject:
[Previous]
[Next]
[Subject Search Index]
[Send Reply] [Send Message with New Topic]
[Search Selection] [Mailing List Home] [Home]