CONCANNON & CHARLES, P.C.
A different kind of law firm
SCARED OUT OF THE WATER:
What Happens After the Unthinkable Happens...
David G. Concannon, Dive Center Business, July/August 2014
In 2010, I wrote an article for Dive Center Business (Vol. 13, No. 5, October 2010) explaining how to represent the risks of diving and dive travel to your customers. Drawing pithy analogies to Sir Ernest Shackleton and his 1914 Imperial Trans-Antarctic Expedition, I marveled at how Shackleton escaped litigation after his two year test of endurance on the polar ice pack, and I concluded there was no way Shackleton would escape litigation today if the members of his expedition experienced just one-tenth of the same ordeal.
Frankly, Shackleton was lucky. He managed to escape being sued even after he shot the carpenter’s cat. In today’s litigious society, diving professionals face a myriad of legal issues if anything goes wrong while customers are in their care. In fact, your legal risks have increased exponentially in the four years since I wrote my article back in 2010. This article serves as a primer for what to expect if an accident happens to a customer in your care. Buckle up, because the legal landscape has gotten rougher for the dive industry professional.
In Good Times, Everybody is Happy. But in Bad…
If you have been in the dive industry long enough to remember what it feels like to not be in a recession, you know that the industry is suffering in this poor economic climate. Dive shops are closing, training agencies are losing membership and insurance rates are climbing. So, what does this have to do with the legal risks associated with diving accidents? A lot, actually.
It’s no secret that the diving industry is facing intense competition from other recreational activities for participants. As sports like kayaking, cycling, stand up paddle boarding and running have increased in popularity over the past decade, participation in scuba diving has remained fairly static, at approximately 1% of the American population. In fact, according to The Outdoor Foundation’s 2013 survey of American’s participation of indoor and outdoor recreational activities, participation in scuba diving has declined among Americans ages six and up since 2006, and it now ranks below participation in activities such as cheerleading, tai chi and wakeboarding. This decline has led to belt-tightening in the scuba industry and, believe it or not, it has had an indirect impact on what happens to a dive industry professional in the event of an accident, particularly if that accident appears likely to lead to litigation. Accidents lead to increased litigation and insurance claims, which lead to increased costs in the form of legal fees and higher insurance premiums (if insurance can be had at all), at a time when declining participation rates mean declining or static revenues and a loss of profitability for the scuba industry. The only way to reverse this trend is to reduce accidents or, barring this, know what to do in the event of an accident to protect yourself and head off the potential for litigation. This article describes some ways that can help you do this.
It’s All About the Process
Your training as a scuba industry professional focuses on how to care for customers in the safest way possible. This is understandable and, indeed, appropriate. However, like all recreational activities, scuba diving involves risk. Accidents happen, no matter how hard you try to keep your customers safe, because people make mistakes. For example, in a review of 1,000 recreational diving mishaps performed in Australasia, 87 percent were found to be caused by human error; inexperience and insufficient training accounted for 14 percent and 8 percent, respectively, of the contributing factors to mishaps. In other words, the vast majority of accidents happen because people make a mistake, with a smaller number caused by people getting in over their heads. For this reason, when a diving accident occurs, an investigation of some type usually follows. It is important for you to understand the process so you can protect yourself as the investigation moves forward.
Investigation — the First Link In the Chain
Scuba accident investigations, particularly in the event of a fatality, attempt to determine the cause of the accident by identifying causative factors, primarily focusing on three areas: medical, equipment and procedural. Medical investigation looks at a diver’s health and medical factors leading to the cause of the accident or death. Equipment investigation addresses potential hardware issues that may have contributed to a cause of the accident or death. Procedural investigation focuses on whether the diver followed his or her training, properly prepared themselves and their equipment before diving, or went diving in conditions beyond their training and experience level.
All three areas are typically examined in a scuba accident investigation, with varying degrees of competence and thoroughness. Procedural problems appear to be more common than equipment problems, but they are often difficult to identify. Proper medical investigation depends on whether protocols for conducting a proper “diving autopsy” are followed, but often they are not. In the vast majority of cases, the primary causative factors are never identified, leading to uncertainty about the cause of the accident or death.
Furthermore, it is common for investigators to rule out one area, typically medical, and then point to another area as the most likely cause even though the investigator has no experience investigating this area and did not do so because they have excluded their area of expertise as a contributing factor. In such cases, a victim’s wife may be told by a medical examiner, “your husband was the picture of health, so it must have been his equipment,” when, in fact, the medical examiner did not conduct a proper diving autopsy or he is unaware that actual equipment problems account for less than ten to fifteen percent of all fatalities.
Proper scuba accident investigations are conducted using a root cause analysis to determine the four distinct events shown in Figure 1. The first event, the “trigger,” is the earliest identifiable root cause that transformed an unremarkable dive into an emergency. The second event, the “disabling agent” or “harmful action” is an effect of the trigger that leads to the third event, the “disabling injury.” The disabling injury caused death or rendered an incapacitated diver susceptible to drowning. If the diver dies, the final event is the “cause of death” specified by the medical examiner, which might be the same as the disabling injury or drowning secondary to the disabling injury. It is not unusual for one or more of the four events to be unidentifiable.
Initiating Root Cause
Disabling Agent/Harmful Event
Root Cause as an Effect of the Trigger
Causes death or makes Drowning Likely
Cause of Death
Final outcome of the Fatal Chain of Events, typically Drowning
(Specified by Coroner or Medical Examiner)
Figure 1: Root cause analysis of diving accidents and deaths.
Depending on where the accident takes place and where you are in the process, there could be multiple investigators, each with a different agenda. Generally, the official investigation into the accident will have both a public and a private component. The police or other authorities charged with ensuring public safety will conduct an investigation at the scene of the accident or shortly thereafter to determine if any laws have been broken, the medical examiner or coroner in the jurisdiction where the accident takes place (or where the body is brought to shore) will conduct a medical-legal investigation to determine the cause of death, and your insurance company or personal attorney will conduct an investigation to determine whether litigation is likely and to prepare for such litigation. In each instance, you need to know what the investigator’s objective is so you can prepare yourself for the type of information you will be asked to provide so the investigator can fulfill the purpose of their investigation.
If the police become involved, their approach is to look for any evidence of a homicide. If a homicide is not indicated, the police quickly lose interest. In fact, I have seen instances where police have left the scene of an accident as soon as a diver is placed in an ambulance and without conducting any witness interviews simply because the body was recovered after the time when a diver would have been expected to run out of air. On many occasions, the police simply secure the diver’s equipment before turning it over to the medical examiner’s office or the diver’s family without examining the equipment, or to a local dive shop to analyze the gas and determine whether the equipment was assembled properly. This is because local police often lack the resources and expertise to conduct scuba accident investigations. If no laws were broken, they have little incentive to investigate further. This means that when dealing with the police, you need to be aware that they are seeking information to determine whether a crime was committed. That is, was the diver unlawfully injured or killed? In other words, was the diver assaulted or murdered? If the answer is no, the police will often ask no further questions.
In many states, the medical examiner or coroner has the legal authority to determine the cause of death. (A medical examiner must be a licensed physician, whereas a coroner is often an elected official who does not have to be a licensed physician.) In most cases, diving accident investigations are conducted by investigators for the medical examiner or coroner’s office. But this is not true in all cases. In most states, the coroner or medical examiner’s authority is set by state statute, usually named something like the “Death Investigation Act.” These laws specify certain types of death where the medical examiner has authority to investigate, including instances of sudden death, death occurring under violent or suspicious circumstances, where foul play is suspected, or where the cause of death is unexplained. Death by drowning is usually considered to be one of these circumstances.
In most states, the coroner or medical examiner is charged with determining the “manner of death,” which is legally classified into one of five categories: natural, accident, suicide, homicide and undetermined. Once the manner of death is determined to fall under one of these five categories, the investigation is not obligated to go any further. Accordingly, it is often the case in scuba diving accidents resulting in a fatality that the medical examiner will determine that the diver drowned; therefore, the manner of death was “accidental.” The medical examiner is not obligated to determine why the diver drowned, and many times the investigation will go no further unless there is some obvious cause like a heart attack or obvious equipment failure.
Like the police, investigators working for the medical examiner or coroner often lack any knowledge of scuba diving or the expertise to conduct a scuba diving accident investigation. This is particularly true in geographic areas where scuba diving is uncommon. Consequently, the investigators will often rely on outside “experts” that are familiar with scuba diving, but perhaps not too familiar. I know of some jurisdictions that use commercial divers to investigate recreational scuba diving accidents, and recreational dive shops to investigate technical diving accidents. If I had to guess, I would say that less than half of the 100 or so scuba fatality investigations I have personally been involved with have used competent outside experts. Moreover, there is often a delay of days or weeks before outside experts are called in to help, which means critical evidence is often lost or spoiled before it is ever looked at or even collected.
Coast Guard Involvement
The U.S. Coast Guard (“Coast Guard”) normally performs some type of investigation any time there is a death that occurs when diving takes place from a vessel in U.S. coastal or inland waters. In general, the Coast Guard is looking for evidence of a maritime safety violation. However, in some cases, the Coast Guard is looking for evidence of negligence that can lead to administrative proceedings seeking suspension or revocation of a Captain’s Merchant Mariner Credentials or even criminal prosecution in federal court under the Seaman’s Manslaughter Act, 18 U.S.C. § 1115, a 175-year-old law that imposes fines and imprisonment for up to 10 years against captains, operators, charterers and corporate management for negligence that results in a death of someone under their care.
I know of at least four recent scuba diving fatalities in the Atlantic Ocean that the Coast Guard investigated with an eye toward having federal prosecutors bring criminal charges against the dive operators and ship’s crew under the Seaman’s Manslaughter Act. In each case, the captains, operators, charterers and corporate management interviewed by the Coast Guard were not advised that they were facing potential criminal prosecution, nor were they given Miranda warnings. They were also unaware that to obtain a conviction under the Seaman’s Manslaughter Act, the Government need only prove misconduct or negligence of a ship’s officers, operator or charterer, that results in the death of another (known by lawyers as “simple negligence” – the same easy-to-prove type of negligence alleged in a civil suit); and knowingly or willfully causing or allowing the misconduct or negligence of a ship’s officers that result in the death of a person in the case of corporate management (known as “gross negligence,” although this negligence can be triggered by knowingly allowing a safety violation such as lack of an emergency oxygen kit for divers to be onboard the vessel). Obviously, the thought of facing criminal prosecution would be scary to anyone that is present at an accident scene, but imagine being interrogated by a Coast Guard investigator on a dive boat, out at sea, without the presence or advice of your lawyer to protect you, and having no idea why you are suddenly being treated like a criminal?
The Coast Guard has standardized methodology for conducting marine casualty investigations, but these procedures deal principally with investigating boating accidents and swimmer drownings, which are commonly seen by Coast Guard personnel. Unfortunately, many Coast Guard Investigating Officers (“IOs”) lack expertise that is specific to scuba diving. In many instances, what little diving expertise the IOs may have is limited to their own personal scuba diving certifications and experience. Moreover, in many local areas, the IOs lack access to professionals with diving expertise. In some regions, like in Los Angeles / Long Beach, California, the IOs use a team of Coast Guard Auxiliary members with extensive dive experience to assist in our dive investigations. Unfortunately, not all local units have this type of access to expertise and they have to seek out that information from others. This takes time, which means critical evidence is often lost or spoiled before it is ever looked at or collected.
This means that when dealing with the local police, Coast Guard and/or medical examiner’s office investigators after an accident, you have to assume that they know little or nothing about diving. You have to be helpful and courteous to the investigators; you should explain what you know about the diver’s experience, training and equipment operation; and you should politely insist that the investigators photograph everything associated with the accident, particularly the diver’s equipment, dive computer displays, gas levels and any warnings or beeping emanating from the diver’s equipment. If you are permitted to do so, you should photograph and/or videotape this yourself. I have not lost a trial since 1996; in every scuba diving accident case I have tried, the difference between winning and losing has often come down to the existence of a key photograph taken at the scene of the accident by a quick-thinking person on the boat or on shore.
In the event of an accident during an organized dive through a dive store, either on a dive boat or in training, your certification agency and/or insurance carrier will normally conduct an independent investigation under the direction or supervision of an attorney. In some case, the attorney will dispatch an investigator to research the case, interview those involved, and collect the equipment, or the attorney may do these things himself. In addition, your membership agreement with your certification agency often requires that you submit an accident report to the agency for an internal investigation to be conducted through the agency’s Quality Assurance (“QA”) process. Again, this process takes time, but at least your certification agency and/or attorney specializing in scuba diving accident litigation has the requisite experience to understand and properly investigate the accident in question.
The Reservation of Rights Letter
As I mentioned at the beginning of the article, belt-tightening in the scuba industry has led to some alarming changes in the way the scuba industry does business that you need to be aware of. First, insurance companies make money by collecting more money in premiums than they pay out in claims. This means that if the insurance company’s investigation determines that you violated professional standards, it is exceedingly likely that the insurance company will deny coverage for your claim. After all, most professional liability insurance policies say that adherence to professional standards is a condition of coverage. Read the fine print – it’s in there.
However, denying coverage is not the same as denying you a defense of any claims that may be brought against you. A lawsuit for professional negligence cannot succeed unless the plaintiff’s attorney alleges that you breached a standard of care, which is the professional standards applicable to the diving industry. Insurance companies know this, which is why an allegation that you violated the professional standard of care will not automatically lead to a denial of coverage, but proof at trial that you violated professional standards will. For this reason, your insurance company will provide you with a defense of any lawsuit filed against you, but normally only after the insurance carrier has issued a letter known as a “Reservation of Rights.” This letter, which is ominous in tone and often scary to read, will say something like: “The following allegations have been made against you, if proven they constitute a violation of this and that provision of your professional liability insurance policy, which are conditions of the carrier providing insurance coverage; nevertheless, the carrier will provide you a defense of these claims and, if proven, the carrier reserves the right to not pay any judgment entered against you at trial and recover any attorney’s fees expended on your behalf from what is left of your measly assets.” Do not be frightened by this type of letter. Simply cooperate with your attorney and everything should be fine.
"Put Another Defendant In"
Finally, there is one recent development in the scuba industry that I find appalling and deceitful. As a diving industry professional, your certification agency will often require you as a condition of membership to go through its QA procedure and to submit an accident/incident report as part of this process. These reports often feature prominent language, in bold type and all capital letters, stating: “THIS REPORT IS PREPARED FOR THE PURPOSE OF RECEIVING LEGAL ADVICE OR FOR USE IN ANTICIPATED LITIGATION.” In years past, these words meant what they said: The member’s statements were protected by both the attorney-client privilege and the work product doctrine, and the member could be comforted in knowing that their privileged statements would be kept confidential and not produced to anyone without being compelled by a court order.
However, in 2013, the Professional Association of Diving Instructors (“PADI”) reversed course and took the position that the members’ incident reports “are not subject to any privilege” and PADI “reserve[d] the right to waive any privilege and to use the [members’ incident reports] in PADI’s defense” of claims brought by the plaintiffs against PADI. PADI refused to acknowledge the members’ assertion that the facts they submitted to PADI expressly “for the purpose of receiving legal advice” were subject to the attorney-client privilege (which only the member can waive, not PADI), PADI instead claimed that the reports were merely business records of PADI, and they produced the reports to the plaintiffs’ attorney without a discovery request and without first advising the member! To make matters worse, PADI had reached a settlement of all claims brought against them by the plaintiffs almost eight months before they turned over the documents to the plaintiffs’ attorney; therefore, PADI had no reason to produce documents, waive any privileges or defend any claims. PADI was later sanctioned by the Court for failing to divulge the settlement and unnecessarily multiplying the legal proceedings, but its conduct begs the question: If one of your customers has an accident, who can you trust to stand behind you without sticking a knife in your back?
Don’t Leave Home Without An Attorney
Although it may seem self-serving for me to say this, if one of your customers has an accident, you really should consult with your own knowledgeable attorney as quickly as possible. Accidents happen infrequently, but they often have grave consequences for the diving industry professional. You cannot afford to act without legal representation. At the very least, you should have your own attorney fill out and submit your incident report to the certification agency. This way, you know the attorney is working for you and anything you tell your attorney will be unquestionably protected by the attorney-client privilege and work product doctrine.
Immediately hiring your own attorney also eliminates the time delay that you can experience in starting a competent investigation by the authorities. Believe me, I rarely see accident victims or their families wait more than a day or two before consulting with an attorney, and I have seen several instances where the victim’s attorney actually directs the official investigation conducted by the police, Coast Guard and/or medical examiner. You would never think that police reports could be changed to have facts altered or inserted by a plaintiffs’ attorney like a lobbyist writing a bill for a Congressman on Capitol Hill, but I have seen it done. I have seen the Coast Guard withhold dive computer data from disclosure to a defendant’s lawyer at the request of a diver’s family even after litigation has been threatened, and I have seen investigators destroy, lose or damage critical evidence more times than I care to remember. These things happen all the time. Now that you are aware of them, you can take steps to at least level the playing field in the unfortunate event that an accident happens despite your best efforts. It’s the smart thing to do. If not, drop me a line sometime and let me know how things are going after you restart your career in the tai chi business.
 Outdoor Participation Report: 2013, The Outdoor Foundation, Boulder, CO (available at http://www.outdoorfoundation.org/pdf/ResearchParticipation2013.pdf).
 Acott, CJ. Human error and violations in 1,000 diving incidents: a review of data from the Diving Incident Monitoring Study (DIMS). SPUMS Journal, 2005; 35: 11-17.
Acott CJ. 457 Equipment Incident Reports. SPUMS Journal, 2001; 31(4):182-195; Acott CJ. Equipment malfunction in 1,000 diving incidents. SPUMS Journal, 1999; 29(3):122-126; Vann RD, Denoble PJ, Pollock NW. Rebreather Fatality Investigations. In: Pollock NW, Godfrey JM, eds. Diving for Science 2007. Proceedings of the American Academy of Underwater Sciences 25th Symposium. Dauphin Island, AL: AAUS; 2007.
 Denoble, Caruso, et al., 2008; Vann, Denoble & Pollock, 2007.
 Doc. No. 182, Tuvell v. Boy Scouts of America, et al., U.S. District Court, D. Utah, Northern Div., Civ. No. 1:12-cv-00128 DB (Order dated August 26, 2014).
Author's Note: The original article I submitted to Dive Center Business was edited for publication in the print version of the magazine, which is available only by subscription. Some text was changed due to size limitations and political considerations. This is the text of the original article.