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ltdiver

Survivors can now sue (new ruling?)

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How is this new news tonight? Even though someone signs a waiver, is has, on several occasions, not prevented a family member from sueing and hoping to win. How is this different now?

Hit the news wires just an hour ago.

Survivors Can Sue Despite Waiver

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Survivors can sue despite a waiver

Monday, April 12, 2004
BY KATHY BARRETT CARTER
Star-Ledger Staff


For years, companies that sponsor higher risk activities such as scuba diving and skydiving have asked participants to sign waivers designed to absolve them from lawsuits if injury or death results.


Yesterday, a state appeals court declared those release forms do not bar relatives from filing a wrongful death lawsuit.

A three-judge panel made its decision in the case of the late Assistant Essex County Prosecutor Eugene J. Pietroluongo, 44, of Orange, who died in a scuba diving accident in Pennsylvania three years ago. It cleared the way for Pietroluongo's 13-year-old daughter, his sole heir, to sue the Regency Diving Center in Millburn.


The court said while Pietroluongo had the power to sign away his right to sue, the law did not allow him to sign away the rights of his survivors to bring a wrongful death lawsuit. It said such an agreement, "like any contract, can only bind the individuals who signed it."


Attorneys said yesterday that the decision yesterday sets new rules and could result in more lawsuits.


"This is the first reported case in New Jersey dealing with this particular issue," said Michael J. Barrett, the Woodbridge lawyer representing Pietroluongo's daughter. "Now that it is clear what the rules are, those engaged in recreational activities know what they are dealing with."


Larry Zucker, who serves as counsel to the New Jersey Amusement Association, said many companies require patrons to sign release forms. Zucker said he did not think the fallout from the court decision would be far-reaching because very few accidents are fatal.


"Thank God, death actions are very rare," said Zucker. "This is not your typical situation. I don't think it'll have a big impact or create any additional exposure or liability in the amusement industry."


Costas Prodromou, the owner of the Regency Diving Center, declined to comment on the ruling. His attorney, Judith A. Wahrenberger, did not return calls yesterday.


Pietroluongo went to the Regency Diving Center for advanced diving training. He signed a waiver agreeing that the diving school would not be liable for "any injury, death, or other damages to me or my family, heirs, or assigns that may occur as a result of my participation in this diving class or as a result of negligence of any party."


Pietroluongo died on July 17, 2001, while scuba diving along with Prodromou, another instructor and a student. The dive took place at Dutch Springs Quarry, an old cement quarry that was turned into a diving park in Bethlehem, Pa.


An experienced diver, Pietroluongo had been scuba diving since 1984. The other student, who was less experienced, had some problems during the dive. When the two instructors brought that diver to the surface, they lost sight of Pietroluongo and were unable to find him. The next evening Pietroluongo's body was found in 66 feet of water with an ample supply of air in his tank and equipment in working order. The medical examiner ruled his death an accidental drowning.


Bonnie Gershon, Pietroluongo's ex-wife, brought a lawsuit on behalf of the couple's daughter.


"He was not married, but he had one child, and what the court held is that Mr. Pietroluongo could not sign away her rights," said Barrett. "That would be unfair and contrary to the wrongful death statute."


Barrett said the ruling would take effect after a person dies and family members claim economic loss. Affirming the lower court, the appeals panel said Pietroluongo's agreement with Regency is "unenforceable."


Noting that wrongful death lawsuits are often brought when "breadwinners" die, the court said: "Our Legislature declared that a just society has both a moral and economic responsibility to ensure that those who are found civilly liable for the death of a person are required to compensate the heirs of that person."


The decision was written by Appellate Division Judge Jose L. Fuentes and joined by Judges Dorothea Wefing and Donald G. Collester Jr.



ltdiver

Don't tell me the sky's the limit when there are footprints on the moon

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Yesterday, a state appeals court declared those release forms do not bar relatives from filing a wrongful death lawsuit.


Emphasis mine.

This will be a state by state issue.
quade -
The World's Most Boring Skydiver

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Yesterday, a state appeals court declared those release forms do not bar relatives from filing a wrongful death lawsuit.


Emphasis mine.

This will be a state by state issue.



So, residents in Pennsylvania did not have this right before today?

What other states are left out of the 'loop' still?

I guess growing up in California, with all the lawsuits happening day in and day out (whether they're legit or not) had me thinking that ALL states had this right already.

ltdiver

Don't tell me the sky's the limit when there are footprints on the moon

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I don't think you understand how it works.

A Company will try anything they can to mitigate (prevent, deter, stop) a lawsuit. They -may- give a waiver a shot. If that -intimidates- the Survivors into not suing then it worked. If the Survivors take the Company to court anyway, one side will win and the other side will lose. The losing side (in this case the Survivors) then can go to an appeals court (which it appears they did) for further clarification or adjustments on the decision (maybe it gets thrown out entirely or the judgement award gets lowered).

If this is the first time that such a suit is ruled on and is a relatively high profile case, it -may- be the basis for further rulings as a precident.

This entire process goes on state by state. What happens in one state may not really have too much of an affect on what happen in another.
quade -
The World's Most Boring Skydiver

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So what are they going to sue the scuba-diving company for? His equipment was found in working order with plenty of air.

Family members of tragedies refuse to accept the possibility that their loved one could have caused the incident. Guess I can't blame 'em.
“That which can be asserted without evidence, can be dismissed without evidence.”

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Noting that wrongful death lawsuits are often brought when "breadwinners" die, the court said: "Our Legislature declared that a just society has both a moral and economic responsibility to ensure that those who are found civilly liable for the death of a person are required to compensate the heirs of that person."




Ok first, isnt it the responsibility of a "breadwinner" to make sure (his/her) DEPENDENTS are taken care of in the event of (his/her) untimely death?? Come On if you can't /won't take care of your kids why have them!


Second I know once legal scum (not all attorney just the bad ones) gets ahold of an incident suddenly a stupid move by a student who was taught better and even passed an exam is neglegence on the part of the dropzone/divemaster/masterpyrotechnician but I really hate the concept of signing away (or being asked to sign away) my right to be upset and seek retribution for a deliberate willful negligent act, I'm sorry but I think our society needs to get to the point where when shit happens we deal, and our surviers deal, and when someone charges for a training using specilized equiptment they are required to (and can be held accountable) to have the training, to keep the equptment maintained, and to be aware of any potential problems with their employees before someone gets drunk gives a student useless out of date gear, loads them into an overloaded unmaintained plane and flys them to their death. "don't sign it, don't jump" fair enough but if waivers were less extreem, and attorneys and the legal system more open to understanding the difference between inherent risk/act of god/decesed's own stupid fault and "wrongful death" our society would be better off for eveyone skydivers and DZOs Scubadivers and instructors

Good Judgment comes from experience...a lot of experience comes from bad
judgment.

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So what are they going to sue the scuba-diving company for? His equipment was found in working order with plenty of air.
reply]

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"An experienced diver, Pietroluongo had been scuba diving since 1984. The other student, who was less experienced, had some problems during the dive. When the two instructors brought that diver to the surface, they lost sight of Pietroluongo and were unable to find him. The next evening Pietroluongo's body was found in 66 feet of water with an ample supply of air in his tank and equipment in working order. The medical examiner ruled his death an accidental drowning."



From the news account it looks like Pietroluongo had contracted to participate in a dive operation in a man made dive park. There were two instructors and two clients, a combination that allowed for a standard "buddy" system of protection. When the student had problems both instructors assisted the student to the surface, thus abandoning the experienced diver and leaving him under 66 feet of water without a support buddy. When that diver had problems under water he had nobody to assist him.The buddy system is a worldwide standard in the SCUBA industry and is designed to prevent just this kind of problem. It sounds like the standard was ignored in this case, however briefly.

It sounds to me (based just on the news story) like the dive company had a duty to provide support and didn't do that. Sure, a diver of this experience should be able to handle any problem, but the dive company also has a responsibility to the client.

We should all think about these issues as they apply to the skydiving world, and especially to student operations. When we contract to provide a service we have a duty to provide that service. Simply saying "the dead guy signed a waiver" isn't enough. When there are clear standards, we must meet those standards.

The other issue here is the enforcebility of a waiver, and the ability of a person to sign away the rights of another person. It sounds like the court is saying that the client does have a right to sign away his own right to sue, but he can not sign away the rights of others.

I recall another case in a different state where a parent signed a release on behalf of a minor. In that case the parent had given up the right to sue, but the release could not be used to deny the other parent of the right to sue. The Relative Workshop presented an interesting read of this kind of liability law when commenting on taking minors for tandem rides. The RWS position even mentioned that if a minor is injured and the parent signed a waiver, the minor could retain the right to sue and do so when reaching the age of majority, even if the waiver is interpreted to clearly restrict the signing parents right to sue.

While the SCUBA case only applies in Pennsylvania, the concepts should be of concern to us all. The protection offered by a waiver of liability will vary from state to state, and it may not provide the level of protection that we expect.

It is also important to understand that skydiving releases generally protect the drop zone as well as the individual staff members, instructors, and other participants. If the waiver is found to be unenforceable in a case against the drop zone, then the protection probably doesn't extend to the individual instructors. There may be some protection if the individual is an employee of a corporation, but it seems like most skydiving professionals are independent contractors. Absent a binding release of liability those contractors could be at greater risk.

Something to think about.

Tom Buchanan
Instructor (AFF, SL, IAD, Tandem)
S&TA
NOT A LAWYER
Author JUMP! Skydiving Made Fun and Easy
Tom Buchanan
Instructor Emeritus
Comm Pilot MSEL,G
Author: JUMP! Skydiving Made Fun and Easy

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When the student had problems both instructors assisted the student to the surface, thus abandoning the experienced diver and leaving him under 66 feet of water without a support buddy. When that diver had problems under water he had nobody to assist him.The buddy system is a worldwide standard in the SCUBA industry and is designed to prevent just this kind of problem. It sounds like the standard was ignored in this case, however briefly.

It sounds to me (based just on the news story) like the dive company had a duty to provide support and didn't do that. Sure, a diver of this experience should be able to handle any problem, but the dive company also has a responsibility to the client.



As much as I hate it and hate lawsuit lawyers (I'm an MD, you know!), you got the point in this case. They abandoned the buddy system and it could have made all the difference.

Intentional damage must be suitable, waiver or not. Negligence should be suitable , waiver or not.

NO MORE, NO LESS!!!

Suing for events where the operators, instructors, etc. had no responsibility (unfortunately, very common) is done by "hijos de p..." (sons of b......). There are many of them!



HISPA # 18 POPS # 8757

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The buddy system is a worldwide standard in the SCUBA industry and is designed to prevent just this kind of problem. It sounds like the standard was ignored in this case, however briefly.



Just this weekend I went through the Open Water Course in preparation for certification and this is one thing that was stressed repeatedly. I believe will be hammered in harder next weekend in the lake. You and your buddy stay together. For an instructor to leave would, in my non-legal opinion, be negligent. For the deceased to have said, "I'll stay behind" would have been primarily his own fault and shown a lack of concern for the other party.

After posting that I realized there was no skydiving connection so...

To me this is the same as an instructor over encouraging a student to get out of the plane in circumstances the student doesn't want to. I know this is rare but there have been posts in these forums from students in that situation. If I was in training and was killed and another jumper could say the instructor talked me in to getting out even though I was clearly beyond some of the normal hesitation then I would think the instructor was largely to blame. Or if on an AFF 2 or 3 one instructor ditched me to help the other and I died he/she could bear some culpability no matter how honorable their intentions in helping the other instrcutor.


"Truth is tough. It will not break, like a bubble, at a touch; nay, you may kick it about all day like a football, and it will be round and full at evening."
-- Oliver Wendell Holmes

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From the news account it looks like Pietroluongo had contracted to participate in a dive operation in a man made dive park. There were two instructors and two clients, a combination that allowed for a standard "buddy" system of protection. When the student had problems both instructors assisted the student to the surface, thus abandoning the experienced diver and leaving him under 66 feet of water without a support buddy. When that diver had problems under water he had nobody to assist him.The buddy system is a worldwide standard in the SCUBA industry and is designed to prevent just this kind of problem. It sounds like the standard was ignored in this case, however briefly.

It sounds to me (based just on the news story) like the dive company had a duty to provide support and didn't do that. Sure, a diver of this experience should be able to handle any problem, but the dive company also has a responsibility to the client.



While I agree to a point...this is the part that gets me: (Bold by me)
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"An experienced diver, Pietroluongo had been scuba diving since 1984. The other student, who was less experienced, had some problems during the dive. When the two instructors brought that diver to the surface, they lost sight of Pietroluongo and were unable to find him. The next evening Pietroluongo's body was found in 66 feet of water with an ample supply of air in his tank and equipment in working order. The medical examiner ruled his death an accidental drowning."



Open water certification is for 60 feet. If he was experienced, had plenty of air, and his equipment worked correctly...The simple answer is he just did something stupid and fucked up.

I have done practice emergency accents from 60 feet before...And this guy had air and working equipment. A "Buddy is only really able to help in an out of air/entanglement situation.

This guy had air and good equipment...An instructor could not have done that much to help him if he was so stupid to die with air and good equipment.

Its a BS lawsuit.
"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

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We really do not have the facts. None of us knows what happened down there to get this guy killed. Odd that he drowned with equipment in operating order and oxygen left.

Maybe whatever happened could have been prevented had a buddy stayed, maybe it couldn't have. The fact is that the buddy system is the norm and he never should have been left alone. Irrelevant of what happened, as far as anyone knows a buddy could have saved him.

The questions is, would that be enough to prove negligence? I do not know. In this case, a lawsuit to get the facts in the open might be the way to go. I might have filed, just to get at the truth. And if negligence can be proven then the negligent parties should pay. If not, then I would accept that judgement too as the family member.

at least I think I would. Can't really say without being there.

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I always thought the skydiving waivers were insane.
Most of them now say that if I sue them, I have to pay them $50,000 dollars for a lawyer so they can defend themselves. I wonder if that has ever worked!;)



Usually a DZ lawyer will let the insurance company know the DZ has no assests, (the smart DZ has everything set up into different companies) will offere a very small settlment (ie$1000) and will then file a counter suit against what was agreed upon in the waiver. I've seen it done a few times, and it usually is a good deterent.
_________________________________________
you can burn the land and boil the sea, but you can't take the sky from me....
I WILL fly again.....

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Open water certification is for 60 feet. If he was experienced, had plenty of air, and his equipment worked correctly...The simple answer is he just did something stupid and fucked up.
......................................................................An instructor could not have done that much to help him if he was so stupid to die with air and good equipment.



Open water certification is for more than 60 feet. The usual first dive of a multi dive journey is to around 90 feet. You can go to 130 feet for a very short time without needing decompression. Anyway, that is not the point. The point is that if your buddy is doing something stupid that may kill him you do your best to prevent, avoid, help. But how could you if you are not there? If you are not there you can be rightfully accused of negligence.

And negligence is the point, waiver or not, one should be responsible for negligence.



HISPA # 18 POPS # 8757

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I recall another case in a different state where a parent signed a release on behalf of a minor. In that case the parent had given up the right to sue, but the release could not be used to deny the other parent of the right to sue. The Relative Workshop presented an interesting read of this kind of liability law when commenting on taking minors for tandem rides. The RWS position even mentioned that if a minor is injured and the parent signed a waiver, the minor could retain the right to sue and do so when reaching the age of majority, even if the waiver is interpreted to clearly restrict the signing parents right to sue.



I was working at a DZ and divorced father showed up with his daughter, they read the waiver, he signed, she signed. The DZO introduced me as their Instructor. I asked the Dad, "Who has custody of her? "Her mother, but we're not going to tell her until afterwards and show her the video."

Another time, a stepfather showed up with his stepdaughter and wanted to sign the waiver. I told him that he could not sign for her. His response was; "But, I'm the one supporting her."

I will NOT train anyone in any instructional method until they reach the age of majority. In most states, a parent cannot sign for a minor agreeing to waive certain rights.

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IMO the reason DZ waivers have been so effective is that it is very difficult to prove deliberate negligence. That and the fact that most savy DZOs have no assets so it isn't worth an attorney's time to sue.

Unfortunately, in our sue happy society, everyone wants to be able to "blame" someone else rather than owning their own actions.

I have no problem with someone suing if another person's deliberate act of negligence caused their injury or death. But in most cases, especially in skydiving, the jumper's own error is the cause of the injury or death. And even if the accident which occurred was something questionable (or in otherwords, not necessarily pilot error but something else, i.e., failure of the equipment) you choose to participate in a sport where the consequences of an accident can be catastrophic. There should be some level of accepted risk which would preclude suing if something does go wrong.

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It's simple. Even with a waiver, people can still file a lawsuit. It costs money and TIME to defend. Even if the case is thrown out and you counter sue and win there you will never get back all the time and money that it cost you.

When will our society understand that it is freedom that allows us to do the sports that we love. IF we continue to sue and countersue over understood risks then we will loose our freedom to do those sports.

If was said before and I'll say it again. We need to learn that bad things happen that is out of your control. Learn from it and move on. Most of the time people sue for high amounts because they want someone else to feel pain. Trying to ruin someone else's life isn't going to make the pain and loss go away.

When did we loose our common sense people

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Open water certification is for more than 60 feet.



Open water certification for PADI and NAUI is 60 feet.
Advanced is to 130 feet.

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http://www.naui.comSixty feet (18 m) is the maximum depth for any open water training dives during the course.



Yes that says for training, but in the course they say that we needed Advanced to go deeper.

And this agrees
Advanced:
Quote


Required Dives
Navigation
Night or low visibility diving
Deep diving (130 feet/40 meters maximum depth)



Quote

Deep Diver
OVERVIEW
This course is to provide the diver with the knowledge and skills to plan and make deep dives while minimizing risks and avoiding the need for stage decompression. Deep diving is defined as dives made between 60 (18 m) and 130 feet (40 m). Training dives are not to be conducted beyond 130 feet (40 m).



Now many dive companies ignore that....Just like some people pull low. I have been on what I would call a tech dive (Penetrated a wreck at 90-100 feet in HIGH flow.) and all I showed was my Open water card. They let me, but that does not mean that its right.

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You can go to 130 feet for a very short time without needing decompression



You can bounce it, but its not very smart. Just like you can pull low.

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And negligence is the point, waiver or not, one should be responsible for negligence.



And it sounds like this guy was to stupid to survive. He had good gear and air..Plus you can surface from 60 feet in an out of air emergency.

I have done solo dives in open water to 60 with my dive buddy "Katie the 80". I used to dive almost every day here in FL.

Edit to add:
Its been a few years since I did much diving. SO if you can show me where it says otherwise I'll be glad to read it....In fact the Standard procedures maunual it recomended that sport divers stay with dives around 30 feet.

But if you can show othewise please do...I'd really like to know.
"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

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An experienced diver, Pietroluongo had been scuba diving since 1984. The other student, who was less experienced, had some problems during the dive. When the two instructors brought that diver to the surface, they lost sight of Pietroluongo and were unable to find him.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

If the deceased was an experienced diver, then he was responsible for following his instructor to the surface.
The buddy system only works if both buddies are paying attention.
Sorry, but I believe that the deceased was partially responsible for his own demise.

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There were two instructors and two clients, a combination that allowed for a standard "buddy" system of protection. When the student had problems both instructors assisted the student to the surface, thus abandoning the experienced diver and leaving him under 66 feet of water without a support buddy. When that diver had problems under water he had nobody to assist him.The buddy system is a worldwide standard in the SCUBA industry and is designed to prevent just this kind of problem. It sounds like the standard was ignored in this case, however briefly.



Now let's extrapolate your analysis of this scuba incident to a typical AFF skydiving problem:

An AFF student leaves the plane with two instructors holding onto him. The student flips upside down and spins, causing him to fling off his instructors, leaving him alone in the sky. He fails to obey his training instructions to deploy his parachute. His AAD fires the reserve at 1,000', but wraps around him because of his upside-down, spinning body position. The student dies.

Do the heirs of this AFF student now have a legitimate legal claim against the two instructors, because they "abandoned" him in the sky?

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OK Ron, as I do not have anything in writing before me I cannot contradict your facts. You must be right. I don't remember my PADI Open water training stating the 60 feet rule but I cannot be 100% sure. I've been to 90+ feet before obtaining my PADI Advanced but, as you say, it may be wrong policy from the diving operator. If I catch up with my PADI literature and it says something different I'll be back. It would be nice to meet you, sky or water. Who Knows? Somewhere, sometime...



HISPA # 18 POPS # 8757

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I don't remember my PADI Open water training stating the 60 feet rule but I cannot be 100% sure



And I don't know PADI very well. It could be different. But NAUI pretty much just copied a good portion of PADI's rules....In fact I don't know of any real deviation between the two other than the way you progress in the systems.

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If I catch up with my PADI literature and it says something different I'll be back



Please do.

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It would be nice to meet you, sky or water. Who Knows? Somewhere, sometime...



come to FL, and we can do both.
"No free man shall ever be debarred the use of arms." -- Thomas Jefferson, Thomas Jefferson Papers, 334

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Now let's extrapolate your analysis of this scuba incident to a typical AFF skydiving problem:

An AFF student leaves the plane with two instructors holding onto him. The student flips upside down and spins, causing him to fling off his instructors, leaving him alone in the sky. He fails to obey his training instructions to deploy his parachute. His AAD fires the reserve at 1,000', but wraps around him because of his upside-down, spinning body position. The student dies.

Do the heirs of this AFF student now have a legitimate legal claim against the two instructors, because they "abandoned" him in the sky?



I think as long as the instructors continued to try and reach him safely until they reached their required pull altitude the issue would not be as described in the SCUBA case. If, on the other hand the first instructor let go because of instability (as briefed in the AFF instructor course) and the second instructor then released to join the first for some fun RW, there would be a problem. Likewise, if the student hadn't been trained in how to deal with instability or the loss of both jumpmasters, there would be a problem. A student should be provided with the training, tools, and supervision needed to make their jumps as safely as possible. If we fail to train them, don't adequately equip them, or choose to leave them alone in freefall, then we are wrong.

I think we owe our students a duty of care, not perfection. Follow the rules, follow national standards, use reasonable care.

Tom Buchanan
Instructor (AFF, SL, IAD, Tandem)
S&TA
Author JUMP! Skydiving Made Fun and Easy
Tom Buchanan
Instructor Emeritus
Comm Pilot MSEL,G
Author: JUMP! Skydiving Made Fun and Easy

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It would be nice to meet you, sky or water. Who Knows? Somewhere, sometime...



come to FL, and we can do both.


:ph34r::ph34r::ph34r::ph34r::ph34r::ph34r::ph34r:
You live in a place where you are blessed to do both... Scuba is not fantastic down here in Uruguay but there is an original dive to do: scuba among the sea wolves, it's really fun, they play with you if you do not act menacingly. And in Punta del Este we have fantastic scenery for skydiving. So you can come down here. But my next activity in a foreign country will be in Cayo Largo, Cuba in August, they say it's fantastic for scuba. Wanna join?



HISPA # 18 POPS # 8757

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