Accidents, injuries and deaths while diving – who is responsible? Is there an increase in lawsuits?
There is a natural allure when it comes to the open water. It’s mysterious and inviting. The ocean covers 71 percent of the Earth’s surface and contains 97 percent of the Earth’s water. And we’ve only made it 6.8 miles down into the ocean so far.
Some may think that also means a lot of potential danger. For instance, CBS Miami has its own tag regarding scuba divers that just reads “scuba diver death” for this category of stories.
Depending on who you ask, scuba diving is a fairly safe sport when safety “standards“ are adhered to. But insurers tend to lump scuba diving in with motorcycle riding, skydiving, mountain climbing and other activities that can increase your premiums.
The Diver's Alert Network (DAN) gives some perspective on the risk of death for scuba divers in its Recreational Diving Fatalities Workshop Proceedings in Durham, North Carolina:
- 0.02% of all U.S. annual injury deaths are because of scuba diving
- Less than 2% of U.S. deaths because of drowning occur while diving
- 0.5-1.0% of the U.S. population participates in scuba diving
Using these estimates and DAN fatality records, DAN expects the death rate among U.S. divers may be estimated at 3-6 per 100,000.
“While there are inherent risks to scuba diving, the fatality rate is extremely low when compared to other activities and litigation in the industry is not common," says William Ziefle, president and CEO of DAN. "While, historically, DAN focused on incident prevention – and we will continue to do so – the organization recently introduced a new professional liability insurance program. As time progresses, I’m sure this program will give us new insights into dive accidents that will further help DAN’s outreach efforts to educate both divers and the dive industry on incident- and injury-prevention.”
Undercurrent.org, an online guide for divers, has noticed an uptick in scuba diving lawsuits. The website notes in an article about big dive lawsuit payouts:
“Seems like settlements for dive-related lawsuits are happening more often, and the payouts are growing. In our April  issue, we reported on the $7.8 million settlement for professional underwater photographer Michael Prickett, who was bent on a shoot in Rangiroa. It was the largest to date. That has now been surpassed by a $12 million settlement for a father and son who suffered severe head injuries when struck by a dive boat's propellers on a Florida Keys dive in 2011.”
While deaths during scuba diving activities are uncommon, they do happen. And whether lawsuits are increasing or not, we thought it would be helpful to take a look at the most common ways that scuba diving accidents occur, framed in the context of legal liability.
How scuba diving can go wrong
Scuba diving carries inherent risk. It involves putting on equipment to explore underwater, a foreign environment to humans.
Though training and safety procedures are designed to mitigate risks, the worst still happens on occasion. DAN summarizes the most common causes of scuba diving fatalities:
- Insufficient gas or running out of gas
- Entrapment or entanglement
- Buoyancy control
- Equipment misuse or problems
- Rough water
- Emergency ascent
The principal injuries or causes of death included drowning or asphyxia due to inhalation of water, air embolism and cardiac events. Older divers were at greater risk of cardiac events, with men at higher risk than women, although the risks were equal at age 65 (Denoble, Pollock et al. 2008).”
So, how does the law get involved?
Drowning accidents fall under maritime jurisdiction, depending on where the accident occurs. If it happens close to shore, then state law applies and normal personal injury law is used. If the accident is farther from shore (for instance, if this were deep-sea diving or if a worker fell off an oil rig way out at sea), then federal maritime law would apply.
- Defective equipment rental/bad oxygen: If you’re underwater and all of a sudden your equipment malfunctions or your oxygen tank stops working, you are out of luck.This could mean a negligence suit against the company from which you rented the equipment (for instance, if you were on a day jaunt while vacationing), or it could mean a product liability suit against the company that created the equipment.
When your life depends on your gear
Ralph Huntziner filed a lawsuit against Aqua Lung in California. He said the company’s dive computer, which gives vital information, can malfunction, resulting in “serious injury or death to the diver.” The computer provides information such as dive time, water temperature, estimated remaining air time and air tank pressure. As of June 2017, a class action lawsuit is being pursued.
Under products liability law, the court investigates the actions, omissions and conduct of a party.
The victim must illustrate that the manufacturer, distributor or seller did not act reasonably in the design, distribution, testing, labeling, assembly or manufacture of a product, and that this failure was the cause of the victim’s harm. Those who put a product into the stream of commerce must ensure that it is safe, no matter where it ends up.
In the end it comes down to reasonable conduct – what do other manufacturers do in similar circumstances? If this manufacturer’s conduct falls short of that, then the court will likely hold that party liable.
- Agency/charter company negligence: This relates to the previous point. Diving agencies have standards and procedures so that divers don’t get hurt on their watch. Agencies have standardized training in an effort to reduce both the number of injuries and their own liability.It is important to keep in mind, however, that a dive shop or charter company will likely only be found legally at fault if it fails to provide the legally agreed-upon services and that specific failure was the cause of the victim’s injuries. Agencies write very clear contracts prior to establishing these relationships, so the burden is on the victim to prove that the agency or charter company acted in such a way that they violated their standard of care.
Lawsuits against diving companies
JustGottaDive.com reports on a lawsuit against a dive company after divers ran out of air while struggling to get to the surface. Two divers, Judy Boone and Kevin Moss, both died while lobster hunting. Boone’s family filed a lawsuit in Palm Beach County against the dive charter, the dive boat’s captain, and the estate of Kevin Moss, her dive buddy. In the lawsuit, Boone’s family claims that Dixie Divers and David Leith provided Moss with substandard equipment, then failed to monitor the divers properly.
The scuba diving death of Rob Stewart, documentary filmmaker has also sparked a wrongful death lawsuit against two dive companies by his parents. It is reported that “Stewart and dive organizer Peter Sotis both surfaced at the same time with apparent breathing difficulties, but Stewart didn’t make it back on board the dive boat. While others were treating Sotis, they allowed Stewart to slip away.”
John Bantin, senior editor at www.undercurrent.org, notes the risks of separation from the boat: “More important [than medical issues], and more likely to end in a fatality, is diver separation from the boat by which the divers were transported to the dive site. Too often, Undercurrent hears reports of divers lost at the surface because, in strong currents or less than totally calm conditions, they were not identified when they surfaced and were lost while floating, fully equipped, at sea.
- Improperly manned vessel: A boat has to be properly maintained to engage in dives and navigate to and from the dive site. It should be equipped with a fathometer, maritime communications devices, medical equipment and emergency oxygen.It should also have a Coast Guard-approved crew and a dive master who is ready to supervise the dive – and who is ready to administer medical care if needed. If not, this could also result in a negligence suit that opens up the employer to liability.
- Negligent instructor: If your teacher doesn’t provide proper instruction and you end up injured or dead because of it, that is negligence.It also opens up the door for employer liability, which is legally called respondeat superior. If an employee is negligent in the scope of his or her employment and messes up on company time, the employer is generally responsible and it likely means more for the victim in the way of recovering damages.
What’s up with dive instructors?
Undercurrent.org poses the questions: “What's happening to dive training, not just for divers, but instructors and boat captains? Do these big payouts indicate a pattern of dumbed-down dive instructor and crew training? Does an instructor who entered training after making only 40 dives (that's the PADI requirement) have enough on-board and in-water experience to behave professionally, regardless of the training?”
It is also up to a diving instructor to determine whether a swimmer is medically fit to dive.
If someone isn’t (for instance, if the swimmer were severely asthmatic and had an attack underwater far away from a rescue inhaler), that instructor should withhold certification, as that swimmer is not proficient to handle the challenges of scuba diving.
Any harm that came to the swimmer would fall back onto the instructor.
- Buddy diving: If two divers go out together, they naturally assume a legal relationship.The one who has more experience takes responsibility for the less-experienced diver (or the instructor for the student, if this were with a school). If the more experienced of the two acts in a way – or fails to act in a way – that causes harm to the other diver, like taking him somewhere he could not possibly dive because he didn’t have the experience, like a deep cave, or refusing to share oxygen, that could be grounds for negligence in a court of law.
More than just a buddy
A panel of five attorneys who discussed common legal issues associated with diving fatalities also addressed the question of how often a failure of the buddy system is the target of litigation.
“The collective answer was not much, although the trend of suing dive buddies is on the upswing (Coleman 2008). Most of these cases involve a failure to rescue the deceased diver or situations where the deceased diver’s family is looking for an additional source of insurance to collect from.”
In the Judy Boone wrongful death lawsuit mentioned above, the suit filed by her survivors also says that Kevin Moss, her buddy, was negligent in running out of air, and it states that he did not allow Boone to surface.
- No certification scuba adventure: The problem with many scuba diving agencies is that they are profit-motivated. This means that they try to appeal to as many people as possible, regardless of whether they should be diving. This has led to the creation of “no certification scuba adventures,” which tout a quick and easy jaunt under the water for everyone! It doesn’t matter that you have no training or experience! Certified divers will tell you this is a horrible idea.
Andy Zunz, managing editor of Sport Diver magazine, strongly recommends PADI’s Discover Scuba Diving program if you’re not ready for full certification.
He explains, “The difference between this and other no-certification dive experiences is that this program guarantees that you’re working with a safety-focused, verified PADI operator and you’ll have an instructor close by every step of the way. We don't recommend signing up for a no-certification experience with an operator that you’re unable to vet.”
Sport Diver magazine also provides an intro to everything you need to know to get started with scuba diving at ScubaDivingIntro.com, including how to get your open-water certification right away.
What about waivers and scuba diving?
Scuba divers participating in a dive or course often must sign a waiver. Standard language includes a waiver of the right to sue the party offering the service, even if the worst should happen.
But do waivers stand up in court?
The South Pacific Underwater Medicine Society (SPUMS) reports that it does, even in the case of a negligent diving instructor.
The case of Ken Sulejmanagic, a 19-year-old diver who died during a YMCA scuba diving certification course in California, drives home the point that waivers are indeed legally binding.
When you sign a waiver, you are entering into a contract of your own free will that will, in most cases, be upheld in court.
Have you ever wondered if waivers stand up in court when something goes wrong and it was clearly the fault of the dive company? They do.
See here the wording used in the waiver signed by Sulejmanagic, which prevented his parents from winning a wrongful death suit for the negligence of his instructor. Look familiar?
For and in consideration of permitting (1)...............to enroll in and participate in diving activities and class instruction of skin and/or scuba diving given by (2)................the Undersigned waives and relinquishes any and all actions or causes of action for personal injury, property damage or wrongful death occurring to him/herself arising as a result of engaging or receiving instructions in said activity or any activities incidental thereto wherever or however the same may occur and for whatever periods that activities or instructions may continue, and the Undersigned does for him/herself, his/her heirs, executors, administrators and assigns hereby release, waive, discharge and relinquish any action or causes of action, aforesaid, which may hereafter arise for him/herself and for his/ her estate and agrees that under no circumstances will he/she or his/her heirs, executors, administrators and assigns prosecute, present any claim for personal injury, property damage or wrongful death against...............or any of its officers, agents, servants or employees for any of said causes of action, whether the same shall arise by the negligence of any of said persons, or otherwise. IT IS THE INTENTION OF (1)...............BY THIS INSTRUMENT, TO EXEMPT AND RELEASE (2)...............FROM LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH CAUSED BY NEGLIGENCE
During the course of his dive, Sulejmanagic ran low on air. Rather than ending the dive, the instructor told him to swim toward a dive buoy while he returned to the bottom to continue with another diver. Sulejmanagic was missing when the instructor resurfaced later.
Sulejmanagic’s parents sued the YMCA and the instructor for the wrongful death of their son.
In the end, the California appellate court determined that the waiver was sufficient to protect the YMCA and instructor from being held responsible for their negligence.
Though the instructor was clearly negligent, the waiver stood up against a wrongful death lawsuit brought on his behalf because he signed the waiver when he joined the certification course:
“Here, Ken certainly had the option of not taking the class. There is no practical necessity that he do so. In view of the dangerous nature of this particular activity defendants could reasonably require the execution of the release as a condition of enrolment. Ken entered into a private and voluntary transaction in which, in exchange for enrolment in a class which he desired to take, he freely agreed to waive any claim against the defendants for a negligent act by them.”
However, as we see in the case of Diodato v. Islamorada Asset Management, Inc., the wording of the waiver can have bearing.
When Aviva Diodata arrived to participate in a recreational dive in Monroe County, Florida, she was already late, so the instructors let her board without signing the required waiver.
At an early point in the dive, she was separated from the boat and not found until it was too late.
Aviva’s husband brought a wrongful death suit, and the dive company argued that waivers she had signed with them on previous dives should also cover this particular dive. This held up in a summary judgment but was reversed by Third District Court of Appeals.
The Court of Appeals found the language addressing the scope of the releases she had signed at earlier dive events ambiguous. In addition, the earlier dives she had participated in were of a different nature than the fatal deep-water dive.
In the end, the waivers were not upheld.
So, what can scuba divers do?
If there is any lesson to learn from the actions of others, it’s to always take safety seriously: Pursue proper certifications, confirm that others around you are adhering to accepted standards, and understand the responsibility you are accepting when you participate in diving activities.
Divers can take it one step further by equipping themselves with gear that can make it easier to be found if separated.
Undercurrent.org advocates for all divers to carry a surface marker device such as a buoy, a flag on an extendable pole, a flashlight, a personal locator beacon or a combination of all such safety devices to make location of a solitary floating person more easily found in the vastness of the ocean, according to Bantin.
Torben Lonne, editor in chief at DIVEIN.com urges divers to always use a checklist. He says, "While most of us are probably able to remember safety procedures for diving if we are prompted, some points can slip our minds once we find ourselves at the dive site, perhaps early in the morning, and excited about commencing the dive. Checklists in diving can be used to ensure that all the steps are followed in equipment review and assembly (especially when diving with equipment that you use infrequently), the dive plan, and the backup or emergency plan."