Nitrox workshop dings - Divers Alert Network

Rubicon Foundation Archive (http://rubicon-foundation.org)///. Nitrox Risk Management DiscussionB. Turbeville. Absolutely. I have used it in the past and I'll use it in the future. The question iswhat are the community standards of care? I'd be careful there, though, because the NOAADive Manual also says some things that are fairly harmful to some of my clients' interests.For instance, that buoyancy compensators must act as personal flotation devices and keepyour head and face up under all circumstances. The problem is none can do it. None haveever been able to do it. None will be able to do it at least in the foreseeable future. I've gotto say, that's what NOAA says, but that's not necessarily what the manufacturers can do.They can't produce such a device. The NOAA Manual is one of the documents that I useoccasionally, but it's used against me occasionally as well.D. Rutkowski: The nitrox concept's been around for over 30 years. Dr. Morgan Wells startedopen circuit demand nitrox in 1970. In fact, Wells and I have been at NEDU teachingcourses for the Navy four years ago. I don't see where you can justify going to the NavyManual 1.3 atm when all their stuff is operational air diving, not nitrox itself.M. Lang: Alright, let's do one more round on this 1.3 atm and then I'm cutting that off.D. Rutkowski: 1.3 atm is for the Navy's closed circuit UBA, which is used by SPECWARdiving and trust me, it's got nothing to do with us.M. Lang: Uncle Dick, don't make me come over there.D. Rutkowski: I'll tell you what, let me buy shots of Scotch. The last one standing wins.C. Nitrox Legal ConsiderationsJ. Hardy: Let me suggest that I give a prelude and a transition and then put up an issue to let BillTurbeville comment on. I would like to point out that another paper in these workshopproceedings will be a reprint of one of the "Lessons for life" that I prepared for Rodale'sScuba Diving Magazine. These are analyses of actual cases where I've served as an expertwitness. Dick Vann set the stage this morning with one of the DAN cases he put up, which isthe one that I wrote about. It was about a diver on a wreck dive chasing lobsters with homebrewed nitrox. He was diving at 2.0 atm on his 39 percent mix, operating at about 135 feet.The first issue I would put forward to let Bill give you legal insight on is the supplying ofnitrox. In other words, the manufacture of nitrox as a product by the store.B. Turbeville: That's actually the most theoretically interesting issue of all. When you look atliability issues in the diving field, there are two that you have to be concerned with. The firstis negligence. That is, whether there was a duty of care, a breach of that duty of care, aproximate or legal causation, which actually equals foreseeability for our purposes and then,were there damages? That's the one common standard. The other standard is strictliability/product liability. If you have a product, a dive computer or a gas, i.e., enriched airnitrox, and it's found to be defective, which means unreasonably dangerous, you havefaultless based liability. You don't need to prove negligence. You can't meet the standard ofcare for the community if it's found to be defective. Nitrox is a product. A supplier whoproduces or blends nitrox has just made himself or herself into a manufacturer. When theysupply that product, two interesting things will occur. Number one, you lose the issue offault. It's a strict liability question. That makes it easier for the plaintiffs to win. Moreimportantly, for the practical purposes that I have to face, the liability waivers are no goodanymore. The liability waivers work extremely well against negligence-based claims. Theydon't work against product liability claims. If the smart plaintiffs lawyer realizes that they111