Thumbing the Dive

[tomfcrist]

This is, as a matter of US tort law, not particularly accurate. As your next sentence gets partly right, the existance of a duty is prerequisite to liability, and in this case one could easily argue that the dead diver in the buddy pair only dove because of his counterpart's training in the buddy system. By holding yourself out as a buddy, you may induce another to dive with you and thereby assume a duty of care towards them that you would not normally have. What level of care is involved there would, in the case of a non-pro diver, be up for debate...but being present when you've both been trained to stay with your buddy would likely be part of it.

OK.....so lets assume that The worlds diving certification agencies all got together and put the thumb rule in writing........You are saying that this would create a LEGAL obligation to follow it? What about the divers that were trained prior to the "rule" becoming accepted and written by the agencies? Would this apply to them as well? NOPE!

You falsely assume that all divers have been trained to dive with a buddy, and to in no circumstances leave the buddy unattended. You also disregard any conversation between buddies, which would have occured during the planning phase that may have negated the requirement to stick together. In the case of a buddy team, where one person is dead.....Who is going to prove that the dead buddy didnt agree verbally to surface earlier because he is an air hog, or that one buddy was going to hang at 20' for half an hour taking pictures instead of surfacing as a team.

All I can say is good luck trying to stick a charge like that against me in court......you wont win, as any person with half a brain can side step "unofficial" liability.....Unless you live in the communist state of California, where a home invader can sue the home owner for a laceration to his arm in the commission of a felony home invasion......
But that is another thread now isnt it?

---------- Post added January 17th, 2014 at 08:21 AM ----------

I can certainly see a legal incident if the individual left alone was a STUDENT!

Agreed, and this also applies to a certified diver that has hired a dive pro as their guide......it creates a duty of care.

 

[ItsBruce]

The first step in any analysis of potential liability in tort is whether there is a duty of care. If there is no duty of care, there can be no liability. If there is a duty of care, one must look at whether a defendant's conduct fell below that of a reasonably prudent person.

Judges determine if in a given situation there is a duty of care. That determination is based on a handful of factors.They include things like balancing the potential harm of there being no duty against the difficulty of acting in accordance with that duty. They also include how the existence of a duty may impact the activity itself. They also include things like whether it is feasible to buy insurance against possible liability. More on this later.

A jury, or if there is no jury, the judge determines whether a duty was breached. In determining if a duty was breached, the jury (or judge) compares what was done to how a "reasonably prudent" person would have acted in similar circumstances. If the defendant acted as a reasonably prudent person would have acted, there is no liability. In theory, jurors, as members of the community have a sense of what reasonably prudent people do or don't do. If the defendant failed to act as a reasonably prudent person would have acted, the next question is whether the that failure was a "proximate cause" of the plaintiff's's injury.

California's formulation of proximate cause is pretty decent. It describes causation in terms of whether the conduct as a "substantial factor" in the particular injury. For example, negligence in giving CPR is probably not a substantial factor in a death since CPR is only applied after the victim's heart has stopped, i.e. already dead. But note statutes can control causation. For example, in California, there is a statute that says that when one provides liquor to another and that other then becomes drunk and injures someone, the act of providing the liquor is NOT a cause of the injury.

More on duty later.

 

[MalibuJerry]

Doesn't this raise a wider question of what is the duty of a buddy and when does it in fact become a duty? For example: If I go in the water with a couple of people on a recreational dive off of a charter boat, are they my buddy? Even if we agree to go together? Do we have to agree that we are going to be responsible for each other and if so, how would an independent third party know? I have been on Charter boats where the DM has said; Jerry you dive with Joe. (this happened as recently as 12/22) Do I have a responsibility to Joe? I agreed in the sense of saying OK, but I didn't agree in the sense of saying I would be his dive buddy with a set of responsibilities. In the recent case "Joe" was a newly certified diver on his 7th dive.

If the answer to these questions is that I do not have a duty except in the case where I explicitly accept that duty, then tech dive or not, I don't have to follow him to the surface.

BTW on all of my tech dives, if someone thumbs the dive the entire dive is over with for everyone unless as suggested above it is a set of teams diving together in which case it is over for the set that includes the thumber. We all make an exit together.

 

[DivemasterDennis]

There is a lot of of misinformation or unsubstantiated opinion in this thread as far as the legal issues are concerned, and NO ONE should rely on it ( including this post, even though I have practiced law for 36 years). THe existence of a duty by the defendant ( if sued) toward the injured (or deceased) party mya be established a number of ways, and varys with the nature of the relationship between the two. Instructor/student, divemaster/dive follower, experienced buddy/new diver, etc, each creates a different legal scenario. Also affecting the duty is the understanding of the parties prior to the dive, in the form of dive planning, leading and following, and the like. The creation of a duty is also implicated by agency standards in some ways, particularly as to dive professionals, but its impact may vary if the dive professional is "working" in that capacity or not at the time of the dive. The standards of ALL certification agencies can impact the level oif care or intervention a diver with a duty is hel to, and are always brought up in these kinds of cases. Those of the certifying agency of the diver(s) who is sued are focal, but so are industry- wide and sport-wide standards ads well as practices. Then you get into the standards and practices applicable to the type of diving involved, as well as those for the location where the diving occurred. Looking for a simplistic answer, a one size fits all answer, in a few words, is foolishness. If the point of the convcersation is to avopid liability, then the answer is simple: Plan safe dives, execute them using safe diving practices and properly maintained equipment, and frankly, never ever leave a distressed diver ( or any diver) alone anywhere, whether under the water, on top of the water, on a boat, or on shore.
DivemasterDennis, attorney at law

 

[danvolker]

For example, what if your group jumps in from a boat, and during the descent someone has a minor problem? Does that mean that everyone has to end the dive and get back on the boat, or is there a point where it is safe to leave that person?

There is a huge difference in boat diving, between a "group" you jump in with, and a buddy you jump in with....and an insta-buddy or even just another diver that is psuedo-paired with you, with no expressed obligations by either..,...

Since you used the world "Group", the answer to this is that given how boat dives are run, and the groups really just being the manner in which divers are dropped in to the water--the group can not be expected to be responsible or to stop their dive, because one diver can't clear their ears, or any other minor problem....the group will usually go on--and should for any "typical" problem, the buddy, if one exists, has whatever responsibility that was AGREED ON prior to the dive drop. If these are insta-buddies, or just a pairing with no shared comunications, then any expectation by the diver with a problem is a foolish expectation. If it is a "real" buddy, and an easy recreational dive, it is situationally dependant.....
If I am on a dive with my wife Sandra, and she has a 2nd stage that starts leaking on a baby dive over the 40 foot Breakers Reef, I may escort her to the surface, or to a 10 foot stop, and then just watch her from a distance until she is on the surface....Same with my buddy Bill Mee. both are "self sufficient", in such a situation, and my assistance would be ridiculous in their minds at this point.

Had this been a multi-level recreational dive on the Castor at a max of 110 feet, and we'd been down 35 minutes, and Sandra or Bill was having a reg problem, the reaction by me would be that I have a duty to either donate or to at minimum, be next to them all the way to the surface--even if I had another 12 minutes before the planned end of the dive on Nitrox...the "group" we jumped in with, would have no such obligation.

If a major accident befalls a group member....they pass out underwater, they get bitten badly by a big spotted eel, etc....then the entire group has a responsibility to assist, and to get out of the water asap.

 

[boulderjohn]

A jury, or if there is no jury, the judge determines whether a duty was breached. In determining if a duty was breached, the jury (or judge) compares what was done to how a "reasonably prudent" person would have acted in similar circumstances. If the defendant acted as a reasonably prudent person would have acted, there is no liability. In theory, jurors, as members of the community have a sense of what reasonably prudent people do or don't do. If the defendant failed to act as a reasonably prudent person would have acted, the next question is whether the that failure was a "proximate cause" of the plaintiff's's injury.

If I am on a dive with my wife Sandra, and she has a 2nd stage that starts leaking on a baby dive over the 40 foot Breakers Reef, I may escort her to the surface, or to a 10 foot stop, and then just watch her from a distance until she is on the surface....Same with my buddy Bill Mee. both are "self sufficient", in such a situation, and my assistance would be ridiculous in their minds at this point.

In my non-attorney understanding, what we see in the two posts above lies at the heart of my purpose in this thread.

Right Now: As I understand things right now, if Dan's highly competent dive buddy had some kind of problem and succumbed (heart attack?) on the way back, and if there were a trial accusing Dan of not providing proper care, Dan would be in pretty good shape. How would an attorney prove that a "reasonably prudent" diver would have done otherwise? Dan's attorney could easily show that his actions are commonplace in scuba, and there would be no written instructions in any agency documents that would say otherwise.

In the Potential Future: So let's assume a lot of agencies put in clear writing that the "golden rule" of diving is that when a teammate thumbs a dive, the entire team always exits with that diver. One agency is planning to do that right now. The founder of another well known agency offered a formal opinion in a case exactly like the one described, and his opinion was that the one "golden rule" (his phrase) of diving already includes that understanding, and the teammates who left the diver near the surface to head to shore alone are liable for that diver's death. So let's say Dan is sued in the case described above. Now the attorney will argue that Dan had a clear "duty to care" for that competent diver, and he can prove that by quoting that wording from the official documents of a number of agencies.

 

[danvolker]

In the Potential Future: So let's assume a lot of agencies put in clear writing that the "golden rule" of diving is that when a teammate thumbs a dive, the entire team always exits with that diver. One agency is planning to do that right now. The founder of another well known agency offered a formal opinion in a case exactly like the one described, and his opinion was that the one "golden rule" (his phrase) of diving already includes that understanding, and the teammates who left the diver near the surface to head to shore alone are liable for that diver's death. So let's say Dan is sued in the case described above. Now the attorney will argue that Dan had a clear "duty to care" for that competent diver, and he can prove that by quoting that wording from the official documents of a number of agencies.

Wow John....this would create huge problems for the Charter boat operators, and boat diving in general--UNLESS we can CLEARLY establish that TEAM means "actual buddies that have actual team and buddy pre-arranged agreements.....".
I would hate to see "Team" be used to mean 10 people that are jumping in together, most following a Dive Guide...often some good divers, some poor, some are buddies, some are not....and there are many times a poor diver will need to leave the group due to low air, leaky mask, hemoroids, or whatever else the poorly skilled use for excuses in coming up after 15 minutes on a 60 minute dive... In these constant early aborters, there would be constant annoyance by all divers in a group, for the early aborts...which would soon cause either entirely separate groups, or everyone in the main group refusing to allow the lame diver to be in the group with them.....Boat might even have to begin banning some divers, and when this nonsense does happen, 10 minutes into an hour long dive, you might well have a boat load of divers demanding a refund by the captain--or from the lame diver !!!

 

[Lorenzoid]

As another lawyer, I would really enjoy jumping into a debate, because it would be a lot more stimulating than the pile of files here on my desk that I would rather not deal with on this nice Friday afternoon. But I will limit my comments. I understand the potential legal ramifications that others here have mentioned, but in this instance I don't think it should have any bearing on what agencies teach regarding thumbing a dive. Teaching that rec divers should organize themselves as buddy teams, and that if a teammate thumbs a dive (at any time for any reason) all teammates should exit, can help make diving safer. In some instances you just have to do what you believe will help make diving safer on average and not worry too much what some clever lawyer might argue in some hypothetical case of a highly competent dive buddy having a freak accident.

 

[boulderjohn]

Wow John....this would create huge problems for the Charter boat operators, and boat diving in general--UNLESS we can CLEARLY establish that TEAM means "actual buddies that have actual team and buddy pre-arranged agreements.....".
I would hate to see "Team" be used to mean 10 people that are jumping in together, most following a Dive Guide...often some good divers, some poor, some are buddies, some are not....and there are many times a poor diver will need to leave the group due to low air, leaky mask, hemoroids, or whatever else the poorly skilled use for excuses in coming up after 15 minutes on a 60 minute dive... In these constant early aborters, there would be constant annoyance by all divers in a group, for the early aborts...which would soon cause either entirely separate groups, or everyone in the main group refusing to allow the lame diver to be in the group with them.....Boat might even have to begin banning some divers, and when this nonsense does happen, 10 minutes into an hour long dive, you might well have a boat load of divers demanding a refund by the captain--or from the lame diver !!!

I wonder about teams of three, let alone large groups.

I once began a decompression dive with a team of three. We did our checks in the surface, but as we descended, the spool of my SPG started to bubble. One of my teammates noticed it, and we stopped our descent at about 70 feet. It was not a huge leak, but we decided it was too much, and I headed to the surface to get it fixed while they went on with the dive. If something had happened to me on that little ascent and with me climbing out of the water, I wouldn't have thought they were responsible in any way whatsoever--but if it is in writing from our agency that all members of the team exit the water, a jury might find otherwise.

---------- Post added January 17th, 2014 at 11:12 AM ----------

As another lawyer, I would really enjoy jumping into a debate, because it would be a lot more stimulating than the pile of files here on my desk that I would rather not deal with on this nice Friday afternoon. But I will limit my comments. I understand the potential legal ramifications that others here have mentioned, but in this instance I don't think it should have any bearing on what agencies teach regarding thumbing a dive. Teaching that rec divers should organize themselves as buddy teams, and that if a teammate thumbs a dive (at any time for any reason) all teammates should exit, can help make diving safer. In some instances you just have to do what you believe will help make diving safer on average and not worry too much what some clever lawyer might argue in some hypothetical case of a highly competent dive buddy having a freak accident.

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?

 

[Wookie]

From a boat owner's/tech diver's perspective:

In my opinion (which as stated above, everyone has one... etc.) the duty of care depends on the makeup of the team, and the dive plan. Did the team decide beforehand that the entire team would abort if one member had to abort? Is the team utilizing the "team bailout" concept in the case of rebreather divers, or the team air sharing concept in the event of O/C, or is everyone on an independent gas supply? A rebreather diver carrying their own gas supply for an extremely deep dive (300+) is a rare thing indeed, I would think that a team bailout planning would not only imply a duty of care, but would in fact state that there is a duty of care. If one team member aborts, is there enough gas left in the team to get one diver back to the surface in the event of a rebreather failure?