Thumbing the Dive

[Basking Ridge Diver]

Would a Living Will provide any protection? In the Will - state that you and your estate will hold harmless any dive buddy or person that is diving with you to be free of any outcomes that may have caused your death - except in a case of malicious intent?

 

[Lorenzoid]

. . .
I am not sure I understand--are you saying the odds of your buddy having a problem are so remote that you would advocate rolling the dice?

In your hypothetical with Dan and Sandra, it would seem reasonable to me if Dan didn't escort her completely back onto the boat, even if agencies had been teaching that buddies should completely escort each other through the end of a called dive. We all play the odds every day in our lives. I drive over the speed limit sometimes, and I know that if I have an accident that will likely be used against me.

 

[danvolker]

And... I for one am 100% AGAINST "the NANNY STATE" or , of making Diving decisions due to what some pencil necked geke with a law degree thinks.... ( no offense meant to the "good Lawyers--but the LAW needs to stay out of Adventure Sports in the Wilderness or Nature / Oceans
***1) ...
I will make my decisions based on Diving Knowledge and diving thoughts....not on lawsuits or nonsense from non-divers....and ....if you visit my house, and spill hot coffee on yourself, it's your own stupid fault if you did not know the coffee would burn you--and I am NOT going to have a sign in my kitchen....
Every time one of us gives in to the liability schemers, we make our own signs in our kitchens that much more possible in our futures....I think we need to fight for common sense.


***1*** Dangerous Example of the Nanny State in the Wilderness***
About 2 weeks ago, Sandra and I went to Mountain Bike at our preferred Mountain Bike Trail in Miami--Amelia Earhardt....unfortunately, it was flooded from a huge rain storm, and was un-ridable..so we headed back north toward broward and palm beach....and opted to try the Quiet Water Park mountain Bike trail we had not ridden for a few years--but it used to be a good mountain bike park.
So you ride a half mile to the beginning of the trail, and a fence is gated off, and there is a guy there asking for your pass for the day--$6 per person, per day....not big deal....so we have to ride a mile in another direction, to the Park cabin where they are doing this....in here, there is a big waiver that has to be sighed by each of us...sirt of a pain, but again, fine.....and then we see that we must also WATCH their 10 minute Safety Video in order to ride...this is the new thing in Broward County for mountain bike parks.

Here I draw the line....What do THEY know about safety in mountain biking, and who are they to tell people that have been active in mountain biking since the 80's anything.....But much more, this is the next step to having a government agency telling us we need to watch a safety video, before we can take a walk on a huge national or state forest, in the wilderness. It would be aimed at the clueless, the stupid, and those that are so without skills in the wild...that maybe they DO NEED to be visited by Darwin.....
I do not believe we should need to make the WILDERNESS safe for those who could not survive without videos telling them to avoid falling off of cliffs, or not to walk into trees, or all of the other nonsense some liability attorney could dream up.... The wilderness needs to remain how it was 200 years ago, or much further back.....that is what makes it WILDERNESS. The closer the geekes make it to becoming "civilized", "safe", and optimal for our lowest common denominator, the closer we are to being forced out of this Country, to look for a place not yet ruined by the Nanny State.

Oh, and obviously I told the Park people how ignorant this video was, and that I would NEVER mountain bike in a place as ruined as they had allowed Broward County to become. We still have great mountain biking in MIami, and Ocala, and in North Carolina...We don't need no Stinking Quiet Waters Park in Broward!!!!

 

[Peter Guy]

I didn't stay at a Holiday Inn last night, nor have I played attorney on TV. I did go to law school a zillion years ago and am still licensed to practice law in the State of Washington. I have almost no knowledge of civil law outside of the common law countries. (Is that enough of a disclaimer?)

Several other attorneys have very adequately expressed their opinions (with which I agree) as to the duty of care and reasonableness. IF YOU HAVE A DUTY OF CARE AND YOU VIOLATE IT AND the violation results in injury, you are liable. That's the short answer to John's question.

I am aware of at least one Appellate Court (Washington Court of Appeals, Div. 3, Spokane, Washington) that has said that since "buddyness" is the dive standard, a buddy has a duty of care towards the other buddy and if that duty of care is violated, the buddy will be liable for any damages caused by the breach. Rassmussen v. Bendotti

To my mind, the whole issue of allowing a buddy to abort and not go with him/her simply boils down to the "reasonableness" of the response. It may well be "reasonable" at minute 3, in "gin clear water, the temperature of warm piss" (Love that quote -- Thank you Thal) to watch your buddy go back to the surface, get stable and then continue the dive.

And what is "reasonable" is always a fact question subject to the circumstances -- including that one's agency says "always stick together" -- which is just another factor for the trier of fact.

I don't think there can be a hard and fast rule. I believe (and certainly here in Washington) one has a duty of care towards one's buddy. As to WHAT actions one must take, that depends on the totality of the circumstances.

My guess is that this doesn't help the discussion much at all.

 

[boulderjohn]

I don't think there can be a hard and fast rule. I believe (and certainly here in Washington) one has a duty of care towards one's buddy. As to WHAT actions one must take, that depends on the totality of the circumstances.

I think you have described the current situation. But what happens if agencies make it a hard and fast rule? What if a number of them put such an obligation in writing? Would that change things in future cases?

 

[luscioman]

There is a legal scenario playing out with a similar situation. It is where a diver in Miami was going to dive with a DM and then aborted the dive and returned to the boat. Later that diver went in the water and died. I do not know if that DM was named in the lawsuit or not.

http://www.scubaboard.com/forums/accidents-incidents/447656-fatality-off-miami-beach-florida.html

 

[boulderjohn]

There is a legal scenario playing out with a similar situation. It is where a diver in Miami was going to dive with a DM and then aborted the dive and returned to the boat. Later that diver went in the water and died. I do not know if that DM was named in the lawsuit or not.

http://www.scubaboard.com/forums/accidents-incidents/447656-fatality-off-miami-beach-florida.html

IIRC, what precisely happened in this case was not fully established, at least in that thread. There may be a lot more to it than that.

 

[Lorenzoid]

I think you have described the current situation. But what happens if agencies make it a hard and fast rule? What if a number of them put such an obligation in writing? Would that change things in future cases?

Sure, it might make a difference. It would be one more factor that courts would likely consider in determining what the standard of care is.

 

[Wookie]

I think you have described the current situation. But what happens if agencies make it a hard and fast rule? What if a number of them put such an obligation in writing? Would that change things in future cases?

I think that the real answer is that the rules agencies make will forever be based on what the insurance companies require of them, and since there are only 3 major underwriters in the US, and the US seems to be the Universal center of scuba litigation, those 3 underwriters are force of law here.

For example. I keep saying (and have done so in many places here) that "there is no 60 foot rule". Now, I know what is being referred to as the 60 foot rule, I am a PADI instructor, but a couple of years ago there was talk of SSI actually coming up with a 60 foot rule for OW divers. At that point I asked my insurance company what my exposure would be if we were to take an OW diver on an 80 foot dive. Their answer was unequivocally that as long as the RSTC standards for OW was 130 feet, and we used a 130 foot limit in our releases, we were covered regardless of what an agency thinks.

Another example. My training agency considers 16% oxygen to be "normoxic" Other training agencies use 17%, and put a 200 foot limit on Normoxic cert cards. I have dived a number of times to well deeper than 200 feet on 16% (my c-card does not list a depth limit), and as long as I don't exceed a PO2 of 1.4, I'm happy. That allows me to dive to a depth of about 260 feet on my 16/50.

An agency rule means so little.

 

[kwinter]

I'm going to start carrying waivers with me for all my buddies to sign. It relieves me of any duty to them and vice versa. That way my heirs won't be suing them, and theirs won't sue me. That's the way we all want it anyway. Now we can just be responsible for ourselves and enjoy diving together. That doesn't mean we will abandon someone in distress. We will continue to help each other as prudent, responsible divers. The only ones we will be hurting are the blood sucking lawyers.


Please pardon any typos. Sent from my iPhone using Tapatalk