Anatomy of a Lawsuit

A civil lawsuit generally consists of two parties, the plaintiff, who files the suit seeking compensation for damages; and the defendant (or defendants), whom the plaintiff alleges is responsible for those damages. In an injury case the plaintiff normally is the individual who actually suffered the injury, though in the case of a fatal injury it also can be the family or estate of the deceased. In order to be successful in the lawsuit, the plaintiff must demonstrate four elements, as outlined below; and normally, to be successful, each of these elements needs to be established merely by a preponderance of the evidence (which often is interpreted to mean that 51% of the evidence is in favor of the plaintiff).

 1. The plaintiff must be able to show damages, either financial or physical, or both.

 2. The plaintiff must be able to show that the defendant (or defendants) had a duty to
provide training or supervision in an atmosphere of reasonable safety.

 3. The plaintiff must be able to show that, by acts of commission or omission, the
defendant (or defendants) breached that duty.

 4. The plaintiff must be able to show that his or her damages are the direct result of
negligent performance by the defendant (or defendants).

In addition to actual damages, some jurisdictions also allow the plaintiff to pursue punitive damages, which are intended to further punish the defendant (or defendants) for deliberately injurious actions or other behavior deemed to be unusually egregious in nature.

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It is an unfortunate fact that in the legal system within the USA, almost anyone can be sued for anything. The above elements need not be proven in order to file suit; instead, these elements only need to be alleged.

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Once a suit is filed, both the plaintiff and defendant (or defendants) are entitled to discovery, which is a detailed process whereby each gathers evidence through formal demands for information and documents, and also through depositions (examinations under oath) of the involved parties and other witnesses. This discovery process is completed prior to trial, and the relevant information, documents, and testimony obtained during the discovery process may be introduced as evidence at trial.

As a matter of routine, in the USA, when first filing suit the plaintiff normally names as a defendant every conceivable party who may be involved in any way, either directly or indirectly, in this matter. It might include the dive leader who was supervising diving activities when the plaintiff’s injury occurred. It might include the dive facility that rented or last serviced the plaintiff’s gear. It also might include the Instructor or dive center who conducted some diver training program for the plaintiff several years prior to the incident. In some cases a defendant also may file a counter-suit against the plaintiff, or against one or more co-defendants. Eventually, as the discovery process continues, some of these defendants may be dismissed from the suit; however, prior to reaching this point, it is likely that each defendant already will have incurred significant legal expenses related to their own defense.

Though the above comments relate primarily to the legal system in the USA, it is important to note that those dive leaders and dive facilities located outside the USA are not necessarily immune from such lawsuits. The courts in the USA generally extend tremendous latitude to USA-based plaintiffs. Further, a plaintiff often will be able to establish a USA presence for a foreign dive leader or dive facility by identifying their use of a USA-based sales agent or representative, or by simply demonstrating that they directly or indirectly offer their services to USA-based clientele.

Topics Covered in this Chapter:

• Risk Management
  •  Inherent Risks in Scuba Diving
  •  Anatomy of a Lawsuit
  •  Defensive Teaching and Supervising
  •  Student Training Records
  •  Medical Statement
  •  Liability Releases
  •  Liability Insurance for Dive Leaders
  •  In the Event of a Dive Accident
• Review Questions

Special Considerations

Certain specialty-type diving activities will impose additional requirements on both the Divemaster and the participating divers. For example, in preparation for a night dive, the Divemaster may need to position marker lights on the boat or shore, and perhaps along an ascent line; the Divemaster also will need to remind the divers that each should have a primary and back-up dive light, as well as a personal marker light.

When supervising a drift dive, the Divemaster should instruct the participants that they must stay together as a group during the dive, and that each buddy team should surface close to the dive flag at the end of the dive.

When supervising a wreck dive, the Divemaster will need to remind the divers that they should never penetrate into an overhead environment unless they are properly trained and equipped to do so.

During the briefing for a deep dive, the Divemaster should caution the divers to closely monitor both their air supply and their no-decompression limits, as they will consume air from their cylinders more quickly at deeper depths and their allowable bottom times also will be reduced; in addition, at some dive operations it is the responsibility of the Divemaster to position a cylinder and/or regulator at a depth of 5 metres or 15 feet during deep dives, enabling a diver to complete his or her safety stop (or an emergency decompression stop) even when low on air.

Each aspect of specialty diving has its own unique considerations. Naturally, in order to effectively supervise any specialty-type diving activities, the Divemaster already should be well experienced in these activities. Lacking such experience, the Divemaster would do well to complete the corresponding SDI Specialty Diver courses.