Does being a dive buddy expose you to liability?

[murdrcycle]

If a random diver signaled OOA and grabbed for your octo, believe it or not under the general rule you could withhold it, and point and laugh as he drowned. No duty owed, no rescue required.

This is where you are wrong - if a random diver grabs for your air and you withhold it, your actions are now causing the injury and you could be tried for murder. If the person tries to get your air and you block them that is totally different. However, in a black-and-white world, you are under no legal obligation to lift a finger to help them. You can't stop them from getting your spare air, but you aren't under any obligation to swim over to them, pull the regulator out, and hand it to them.

Scary but true.

And no, a samaritan isn't just a bystander. As you can see form my previous post complete with supporting documentation, a samaritan is anyone except those whose jobs call for such actions and who are, while either on or off duty, acting in the capacity of such a job.

For example, an off-duty doctor who isn't on call and is out to eat with his wife (or husband) has absolutely no responsibility to help a fellow diner who chokes or has a heart attack, not even in Texas.

Now, the one stipulation that we did have in motorcycle riding is that we couldn't create a rule, like no wheelies. If we created a no wheelie rule, we were in effect offering an implies warranty that all riders would be safe from wheelie related accidents. So I guess if an off-duty DM, a Rescue Diver, or even a dive buddy told others present that they would watch out for them and make sure nothing happens, now maybe they are offering some implied warranty and have an obligation to provide said assistance.

 

[bleeb]

Wait a minute. I think we're getting a little confused here. The Civil Law legal system (think France) is NOT the same as being sued in "civil court" (think private action, as opposed to prosecution under criminal law). The United States is a common law jurisdiction, not civil law (except for Louisiana), and does not adhere to any elevated duty to rescue. The "bystander has no duty to rescue" rule holds in most jurisdictions in the US, though there are some states which have "bad Samaritan" laws like the ones in Seinfeld. Under our common law system, you can still end up in criminal or civil court, but a "civil suit" is not governed by "Civil Law."

Does anyone have more info as to which areas are common law based jurisdictions and which are civil law based? Many former British colonies (US, Canada, Australia, New Zealand) use common law-based systems, but I don't think that's universal. Anyone? Similarly, someone once told me that most of the rest of Europe (France, was mentioned above) and its former colonies are civil law-based, but does anyone know about other countries (especially the former colonizers)? Probably of particular interest to those of us reading this thread are major dive destinations (Caribbean, Red Sea, Maldives, Thailand, and various Pacific islands).

 

[murdrcycle]

The "bystander has no duty to rescue" rule holds in most jurisdictions in the US, though there are some states which have "bad Samaritan" laws like the ones in Seinfeld. Under our common law system, you can still end up in criminal or civil court, but a "civil suit" is not governed by "Civil Law."

Please provide details on which states have such a law. I can find no evidence anywhere that any US state has this law, although it has been proposed and defeated in many.

 

[Gombessa]

I've condensed my reply to a single post for convenience:

Great insight to the nature of Good Samaritan laws (Advisory Legal Opinion - Officer's duty to provide aid to ill or injured):

This unfortunately isn't a definition of good samaritan under the FL law. It gives some examples as to who may or may not qualify, which may indeed analogize to the DM v. rescue diver on a random charter, but the original question, regarding a diver's buddy, is not covered. I still do not think a designated buddy would qualify under most GS laws.

This is where you are wrong - if a random diver grabs for your air and you withhold it, your actions are now causing the injury and you could be tried for murder. If the person tries to get your air and you block them that is totally different. However, in a black-and-white world, you are under no legal obligation to lift a finger to help them. You can't stop them from getting your spare air, but you aren't under any obligation to swim over to them, pull the regulator out, and hand it to them. Scary but true.

I'd love to be proven wrong on this point, but I don't think you're right. Under this regime, if I'm driving by a burning car on the other side of the street and the victim stuck inside makes a desperate grasp for my bumper to drag himself out (even though my moving car is 50ft away), I'd be liable for "withholding" my aid if I didn't stop in my tracks and let him try. If I shouted "Hey, grab my bumper and I'll pull you out," you've got a different outcome.

In the same vein, if you hold out out your reg and then take it back, you've initiated rescue and thus would have acquired a duty to continue that rescue in a reasonable way. However, if he's swimming for you and you actively back up away from him, you have NOT acquired any duty to him, have not breached that duty, are neither the ultimate or proximate cause of his demise, and so long as you're not a family member of one of the other exceptions to the no-rescue rule, you would have no liability.

 

[SelkieDVM]

I am not a lawyer nor do I play one on TV (but I have two lawyers near and dear to my heart). I am Rescue certified and a DM candidate. Here's my take: If you have a potentially life-threatening problem, whether diving or not, I will do my best to help you. I am a veterinarian and while not experienced in two-legged emergent situations, I do have plenty of experience in the four-legged variety - the basics are the same. If I happen upon you in a situation where you need help, I will render it to the best of my ability. Might you later sue me? Perhaps. Could you win? Perhaps. Will this cost me financially and emotionallly regardless of the outcome? Without a doubt. Will this enter into my thinking when I am making the decision to help you? No.

Sorry, I guess this does not directly answer the OP's question. For my own purposes I will assume "maybe" - but it does not really matter.

Lilla

 

[Gombessa]

Please provide details on which states have such a law. I can find no evidence anywhere that any US state has this law, although it has been proposed and defeated in many.

I don't have personal knowledge on such laws, just something I remember from Torts many moons ago. The second paragraph here suggests that they exist, or have existed, in some states: http://links.jstor.org/sici?sici=0014-1704(199510)106:1<4:LBSLAL>2.0.CO;2-9

Personally, I think they're a bad idea despite the noble intent.

 

[Peter Guy]

I knew I shouldn't have gotten into this one.

The OP asked about the liability of a "buddy" -- NOT a stranger. The Good Samaritan laws are all about the duties/liabilities of strangers and so have no relationship whatsoever with the OP's question.

The SOLE ISSUE is "What is the duty of care owed by one 'buddy' to the other 'buddy.'" As someone else wrote, there isn't a lot of good law on the subject. BUT, there IS likely SOME "duty of care" -- I just don't believe anyone can adequately define it at this time (and for all jurisdictions).

BTW, the differences between "Civil Law" jurisdictions and "Common Law" jurisdictions is probably (NOTE, PROBABLY!) not terribly great on this issue. The difference is going to be developed country vs. lesser developed country (i.e., "mature" legal system vs. "immature" legal system).

 

[northen diver]

This is where you are wrong - if a random diver grabs for your air and you withhold it, your actions are now causing the injury and you could be tried for murder. If the person tries to get your air and you block them that is totally different. However, in a black-and-white world, you are under no legal obligation to lift a finger to help them. You can't stop them from getting your spare air, but you aren't under any obligation to swim over to them, pull the regulator out, and hand it to them.

Scary but true.

And no, a samaritan isn't just a bystander. As you can see form my previous post complete with supporting documentation, a samaritan is anyone except those whose jobs call for such actions and who are, while either on or off duty, acting in the capacity of such a job.

For example, an off-duty doctor who isn't on call and is out to eat with his wife (or husband) has absolutely no responsibility to help a fellow diner who chokes or has a heart attack, not even in Texas.

Now, the one stipulation that we did have in motorcycle riding is that we couldn't create a rule, like no wheelies. If we created a no wheelie rule, we were in effect offering an implies warranty that all riders would be safe from wheelie related accidents. So I guess if an off-duty DM, a Rescue Diver, or even a dive buddy told others present that they would watch out for them and make sure nothing happens, now maybe they are offering some implied warranty and have an obligation to provide said assistance.

edit...deleted.........

 

[Alex777]

This topic has been pretty well ventilated, so I will just make a few quick comments. (I am an Attorney.)

1) Assuming the lawsuit is framed in tort, the applicable law will be that of the country where the accident occurred. Do not assume that US law applies. In some jurisdictions, you might (?) be able to sue in contract.

2) As far as British common law (my kind) is concerned, I agree with Peter Guy's comments for the most part.

3) Good Samaritan laws have nothing to do with one's obligation to a buddy. You are clearly undertaking a duty of care. The difficulty is in defining the scope of it. I am inclined to think that a "buddy agreement" contains an implied promise to come to the aid of the other diver in case of difficulty. In doing so, you must exercise the level of skill and competence appropriate to your qualifications and training. I do not see a lawsuit against a buddy as a sure loser, by any means.

4) In the Cayman Is., in the last decade at least, we have seen no such lawsuit.

 

[murdrcycle]

I've condensed my reply to a single post for convenience:



This unfortunately isn't a definition of good samaritan under the FL law. It gives some examples as to who may or may not qualify, which may indeed analogize to the DM v. rescue diver on a random charter, but the original question, regarding a diver's buddy, is not covered. I still do not think a designated buddy would qualify under most GS laws.

That is exactly what that is - it is a definition of good samaritan under FL law and it is being illustrated as a law enforcement officer.

I'd love to be proven wrong on this point, but I don't think you're right.

You have been proven wrong.

Under this regime, if I'm driving by a burning car on the other side of the street and the victim stuck inside makes a desperate grasp for my bumper to drag himself out (even though my moving car is 50ft away), I'd be liable for "withholding" my aid if I didn't stop in my tracks and let him try. If I shouted "Hey, grab my bumper and I'll pull you out," you've got a different outcome.

Are you even reading what I am writing?

That is not at all what I am saying. You wouldn't be held liable for not stopping. And if you shoulted "Hey, grab my bumper" and then you sped off, you still woudn't be held liable. And if you were following a friend to the gas station and they had the accident and they were the ones in the car, you STILL wouldn't be held liable. And if I am diving with a buddy and he gets into a diving accident I STILL won't be held liable.

However, if he's swimming for you and you actively back up away from him, you have NOT acquired any duty to him, have not breached that duty, are neither the ultimate or proximate cause of his demise, and so long as you're not a family member of one of the other exceptions to the no-rescue rule, you would have no liability.

Yes, you are definitely liable but not under any Good Samaritan laws, but rather under negligent homicide laws. Your ACTION of backing away is a contributing factor to his death and, yes, you are definitely responsible at that point.

To anyone who believes that a dive buddy is liable, I ask one thing - show me where, once, ever in the US, a dive buddy has been successfully sued. Trust me, if it is possible to win such a lawsuit, somewhere there would be an attorney's office dedicated to persuing such cases and an insurance company ready to sell you protection against it. But there isn't.