DM's/ instructors on vacation.

[joker31]

No, in English law (and I suspect US law is the same) it exists when you agree to buddy up with the other diver whether he is paying you or not.

Then can you show me where in any Instructor guide or rescue book from any agency where it says you are legal required to render aid.... Trust me, it's not there!

 

[Peter Guy]

Joker -- Alex is absolutely correct regarding the "contract" you make when you become a "buddy" with someone -- at least in most Common Law jurisdictions (that is, those jurisdictions which are based on English law, which include most of the US).

Whether or not any Agency Text specifically says that buddies have a duty of care to each other, at least the PADI Texts are FULL of references of a buddy's obligation -- beginning with BWRAF checks, to descents, to staying together, to air sharing, etc. It is the constant "Are You OK To Do 'X'?" questioning -- that shows there is a "buddy duty" which is the basis of the liability.

Once again, for an interesting case on this, Rassmussen v. Bendotti, 107 Wn. App. 947 (2001) --

The court concluded that Gene owed a duty to Bonny as her scuba diving "buddy."

I believe just about every court would make the same finding.

 

[Riger]

Once again, for an interesting case on this, Rassmussen v. Bendotti, 107 Wn. App. 947 (2001) -- I believe just about every court would make the same finding.

Peter, is there any easy electronic reference to this case that one can download?

Thanks in advance

Richard

 

[Alex777]

This thread does seem to illustrate one useful point. For whatever reason, the agencies do not seem to be doing an adequate job of teaching DMs & Instructors the basic legal principles of their own potential liability. Perhaps the teaching and reference materials need to be reviewed by a panel of lawyers with experience in tort claims.

Moreover, the materials I have seen assume that the hypothetical accident under discussion occurred in US territorial waters. This is kinda like assuming that all Nitrox tanks contain EANx32 so there is no need to analyze.

 

[Walter]

b. The basic facts of the case (Thal's example of the lifeguards who apparently were held to a duty to act BECAUSE they had OBJECTIVELY held themselves out to be lifegaurds).

Essentially, this comes down to one issue -- holding yourself out as an expert. When you hold yourself out as an expert, and someone relies on that expertise, you have created a duty of care.

Sounds like a very good reason not to present an instructor card when you aren't working.

doesn't matter if you can be successfully sued - if somebody implicates you in a lawsuit it makes no difference as to your own liability - you're still going to court and you have a whole raft of legal expense and trauma to deal with.

While I agree you'll end up in court either way, I believe it does matter if you win or lose the case.

Peter, is there any easy electronic reference to this case that one can download?

I'm not Peter and I'm not an attorney, but I found this through Google.

 

[halocline]

I really do not mind diving with an insta buddy. I set strict rules to that effect. My first rule is. Do what I tell you. Second rule is...Refer to rule one.

Remind me never to be your insta buddy. What happened to being nice to people when you meet them?

From time to time I am in the situation of diving alone on a charter and have been buddied up with brand new divers. Rather than lecture them about how great I am and how inferior they are, (which seems to be your approach) I try to be a regular respectful person, and offer some advice and assistance IF it's asked for.

And your bit about handing them an invoice, that's pretty hilarious. What do you think, that guiding dives is actually a paying, in demand skill like dentistry? Good one!

 

[Walter]

What do you think, that guiding dives is actually a paying, in demand skill like dentistry?

Actually, it is, but you'd better get your money up front.

 

[Bubbletrubble]

I'm not Peter and I'm not an attorney, but I found this through Google.

Oh, my goodness. Thanks for the link, Walter. Thanks for bringing it to our attention, Peter. That is a very interesting read. Some interesting points regarding the case:

1. The deceased's children sound like they really held a grudge against Gene, their step-father (if I'm not mistaken). Sounds to me like they never really liked the guy...even before their mother passed away in the tragic accident. What was the motivating factor for their lawsuit: vengeance, money, emotional closure? I'm a cynic by nature, so I think about these things.
2. Gene aborted the dive because he had a disconnected power inflator. I find this surprising. Whatever happened to...uh...simply reconnecting the power inflator? Or orally inflating the BCD? Considering the time of year and location of the dive, I'm guessing that the water was quite cold. Was this a consideration in not removing his mouth from his reg in order to orally inflate the BCD? Was Gene using a drysuit? If he was...then a disconnected power inflator is hardly an emergency. I'm not placing the blame for Bonny's death on Gene. I just find it interesting that the disconnected power inflator was the cause of buddy separation.
3. The buddy team was involved in the recovery of a snowmobile that was located at a depth of about 100 feet in Lake Wenatchee (Washington state) in the month of November. Uh. Did they have the training and/or experience to undertake such a task? This sounds like a clear case of poor decision-making even before they got to the dive site.
4. The court defines a power inflator as a device that "inflates a buoyancy compensator which then allows the diver to rise to the surface." This shows a lack of understanding of the function of a buoyancy compensator device.
5. In discussion of the "emergency doctrine," the court opinion doesn't explicitly state this, but it clearly places primary importance on a self-equipment check and secondary importance on the buddy equipment check. I submit that since the dive team did not conduct a proper buddy check prior to the fateful dive, shouldn't the deceased assume at least some responsibility for missing that her buddy's power inflator wasn't connected? The emergency doctrine is discussed in the court record because the initial ruling stated that Gene was responding to his own emergency, which terminated his buddy responsibility to Bonny. Since Gene's disconnected power inflator was of his own doing, the opinion states that he was not entitled to consideration under the emergency doctrine. Thus, he still had a duty to care for his buddy.
6. In discussion of "proximate cause," the opinion recounts that the court ruled the association between Gene's breach of duty and Bonny's death was "too attenuated" to say that had he connected his power inflator she would still be alive. In fact, in the court proceedings, a scuba expert testified to the fact that the proximate cause of Bonny's death was that she did not carry a dive knife. Wow! The dive team was attaching buoy lines to the snowmobile under water, and the deceased was not even carrying a knife. Very surprising.

In the end, the court opinion agrees with the original ruling that there was no proximate cause. Analysis of the incident suggests that the accident was preventable. I can't help but feel bad for Gene.

And, yes, I agree that the case provides legal precedence for a diver, in the U.S., having a legal obligation/duty to care for his/her buddy. This is something to consider when picking up an insta-buddy in the U.S., don't ya think?

Perhaps dive certification agencies should be doing a better job educating their DMs and instructors on tort law.

 

[ScubaDocER]

Thank you Walter for the post and the link. It was indeed an interesting read. It does bring up a valid question introduced by a few and reiterated by Bubbletrubble. I suppose I had viewed the buddy system as a means of having 2 divers who would watch over one another and provide assistance if needed or requested. Since there are many who solo dive, not everyone requires or even desires a buddy. I never considered it a legally binding interaction between 2 divers. If this is the perception, then I agree that the Agencies should make us aware of that so that we can pass it along to our students so that they can better understand their potential culpability.

This is a scary precedent to me. If divers are being held legally liable when buddying up this may mean that divers will choose to not do so to avoid even the perception of potential liability. While I empathize with any loss of life assoicated with diving, or in general for that matter, the read seems to reflect an unfortunate diving accident without intent or neglect. I hope that the lawyers on SB will keep us abreast of any changes or consequences of this ruling. As an Instructor I feel obligated to inform my students of any consequences related to diving. This is a new one to me. Thank you again to all who have researched this. The broader question for me is what to tell my students and DMCs regarding their liability when choosing to buddy up with someone.

 

[Peter Guy]

All, Rassmussen is pretty standard law and if you really stop to think about the nature of buddy teams (what I've taken to call "buddiness") it makes sense (at least to me).

All agencies (as far as I know) teach "buddiness" -- that is, that you dive with a buddy and that the buddy is your redundant air source, brain, etc. Once you agree to be a buddy, you have told the other diver that you will act AS A BUDDY IS SUPPOSED TO ACT per the standards taught. As far as I know, NO agency teaches "same day, same ocean."