Thumbing the Dive

[dumpsterDiver]

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

You are going to make a buddy sign a paper that says he is not your buddy?

 

[gcarter]

Not to mention that regardless what papers are signed, regardless whether they may ultimately by upheld or dismissed by a court, the existence of these papers does not stop the lawyers from getting an opportunity to chalk up some billable hours.

 

[Peter Guy]

John -- as someone pointed out, what a/the agency(ies) do regarding hard and fast rules merely becomes a factor in determining:

a. Was there a duty of care? (Rasmussen used the agency "rules" as part of the evidence there WAS a duty of care.);

b. Was the action reasonable or was the duty of care violated? IF there was a hard and fast rule that one never left one's teammate, then there could be strong evidence that leaving the teammate was not reasonable and thus a violation of the duty of care -- BUT, it would still depend on the actual facts.

Remember, in the Rasmussen case, the Court held that being a buddy was the standard duty of care BUT THAT IN THE PARTICULAR CIRCUMSTANCES it was OK for the buddy to leave.

 

[Lorenzoid]

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. . . .

Speaking tongue in cheek, I'd rather have my buddy and me sign documents confirming that we DO owe each other a duty of care and promise to do whatever would be reasonable under the circumstances. Or better yet--and more practical--I'd rather see the agencies emphasize to their students how to be a good buddy. Then, maybe there would be fewer incidents where a diver gets injured and accordingly fewer lawsuits.

Getting back to the original issue, I think it would be useful for agencies to emphasize the concept of thumbing a dive as part of the OW curriculum. If it was covered in my OW course, I sure don't remember it. I've only become more aware of the issue through SB threads like this. If the buddies wish, they can agree in advance what it means to thumb a dive. But I suspect too few OW divers are conscious of the issue to think to bring it up with their buddy.

 

[ItsBruce]

Im going to comment as I read and the thought strikes me. Sorry for any redundancy.

If I go in the water with a couple of people on a recreational dive off of a charter boat, are they my buddy?

There is a good chance the a court would find you were buddies.

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?

if you agree there is a greater chance of being found to be buddies.

a jury could conclude this from other circumstances, such as people seeing you talking together, seeing you do a buddy check, etc. Also, testimony by others with whom you have dived could provide support. Your log book shows prior dives; the boats might be identified; fit hose captains might be able to identify other divers; one of those may recall diving with you and say he or she understood that made you buddies.

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?.

You will most likely be found to be a buddy with the responsibility to act as a reasonable buddy.

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.

The agreement to be responsible is implied as between dive buddies.

---------- Post added January 19th, 2014 at 06:31 AM ----------

I have practiced law for 36 years.

Its amazing all the things one learns on SB.

 

[danvolker]

If we were to desire to sign anything, it should be a contract that expressly states that all agreements between the buddies are entirely between the buddies, and not the business of any court of law or any family members not in the buddy team---and the contract should state that nothing in writing implies any responsibility to either buddy.

We need to end this NONSENSE of getting the courts and attorney's involved.

This is supposed to be a personal agreement between buddies. Each of us has a responsibility to find a buddy they trust, and to be trustworthy themselves. You don't need or want the courts for this.

Suggestions to the contrary place a person in a position where they should be tirelessly urinated upon.

 

[ItsBruce]

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..,...

An insta-buddy or someone with whom you are paired will likely be found to be a dive buddy.

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....

Possibly correct.

...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.....

An agreement is likely to be implied by a court. If you'd do it fit an agreed or regular buddy, you will be expected to do it for an insta-buddy.

---------- Post added January 19th, 2014 at 06:49 AM ----------

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 !!!

Captains are a good place to start. They can, for example, have each diver sign a memo of understanding as to responsibilities as between buddies, insta-buddies, pairs and groups. They can also expand their waiver and release forms to include a release of every other diver on the boat or dive.

Captains who do will have a competitive advantage over those who don't.

 

[danvolker]

An insta-buddy or someone with whom you are paired will likely be found to be a dive buddy.



Possibly correct.



An agreement is likely to be implied by a court. If you'd do it fit an agreed or regular buddy, you will be expected to do it for an insta-buddy.

---------- Post added January 19th, 2014 at 06:49 AM ----------



Captains are a good place to start. They can, for example, have each diver sign a memo of understanding as to responsibilities as between buddies, insta-buddies, pairs and groups. They can also expand their waiver and release forms to include a release of every other diver on the boat or dive.

Captains who do will have a competitive advantage over those who don't.

As one of the people that pushed for DIR in recreational diving....I totally believe in choosing good buddies, and in buddy responsibilities...However, failure to meet your responsibility means you won't be a buddy in the future--it should not have legal ramifications. While this would never create a problem for myself or my buddies, I see this direction of legal contract for buddies as being a sickening development, one needed in a population of sick people I want nothing to do with.

 

[ItsBruce]

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.

Respectfully, it might seem reasonable to you, but how about to a jury? Divers are taught to follow their training. Is it reasonable to disregard they're training vis-a-vis staying with their buddies?

---------- Post added January 19th, 2014 at 07:30 AM ----------

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!!!!

1. Have you ridden at Boyette by Tampa. Even though there are no mountains (unlike SoCal), it is worth the trip.

2. Waivers and videos are there to minimize the risk to the landowner of being sued.

3. People may make fun of California, but we have a law that says if you are injured as the result of a risk inherent in the recreational activity, there is no liability. There is no DUTY to change the nature of the activity to make it safe.

4. Standards of conduct are set by the dive community. Juries if non-divers have to evaluate conflicting evidence about what those are and have to decide if conduct was within or outside of it.

5. As to the hot coffee case, the issue was whether the coffee was unreasonably hot, not whether it might spill. The evidence was that the vendor knowingly and intentionally kept it too hot for human consumption - so it would stay "fresh" in the vat longer.

6. How do you feel about dive-ops that don't test for CO in their fills?

---------- Post added January 19th, 2014 at 07:54 AM ----------

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.

have you considered mountain bike riding at Boyette by Tampa. It is great riding, requires no waivers and you are not responsible for a buddy.

---------- Post added January 19th, 2014 at 07:56 AM ----------

Not to mention that regardless what papers are signed, regardless whether they may ultimately by upheld or dismissed by a court, the existence of these papers does not stop the lawyers from getting an opportunity to chalk up some billable hours.

1. No one pays a lawyer in an injury case by the hour.
2. Few lawyers will take a case where there is a waiver.

---------- Post added January 19th, 2014 at 08:19 AM ----------

As one of the people that pushed for DIR in recreational diving....I totally believe in choosing good buddies, and in buddy responsibilities...However, failure to meet your responsibility means you won't be a buddy in the future--it should not have legal ramifications. While this would never create a problem for myself or my buddies, I see this direction of legal contract for buddies as being a sickening development, one needed in a population of sick people I want nothing to do with.

How can you say you believe in buddy responsibilities at the same time as saying that failing to honor them should have no consequences? It's like saying "My word is my bond until I decide to break it."

if my buddy decided it was inconvenient to share air with me when I needed it and I managed to survive, the next time I saw the SOB, I'd kick his or her butt. Or, I'd demand the satisfaction of a duel with pistols at sunrise. Since society can not function very well with frequent duels, they fave been replaced with lawsuits.

 

[Wookie]

1. No one pays a lawyer in an injury case by the hour.
2. Few lawyers will take a case where there is a waiver.

1. The defendant does. (or at least their insurance company does)

2. Hopefully, the defendant's lawyer will. In fact, if the release isn't properly filled out and signed/witnessed, My insurance company specifically refuses to defend me.