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.
Read the
Rasmussen case I cited earlier.
Rasmussen identifies at least one duty of care owed by a buddy. Where a duty exists, liability may follow if that duty is breached and an injury is caused by such breach. That's the nickel definition of "negligence" that U.S. courts have been using for a couple of centuries.
In
Rasmussen, the court held that the buddy (a) had a duty to perform an equipment check, and (b) breached that duty by not performing a check of his own equipment that would have revealed that his LPI hose was not connected to his BCD. The court did not find the survivor liable only because it determined that his defective equipment check was not sufficiently related to his buddy's death (i.e. the
proximate cause of his buddy's death) to impose liability under the circumstances. So we see that at least one court has determined that an equipment check is part of the duty of care owed to a buddy. There may be other items on that checklist, but those items have not been fleshed out in reported opinions. "Success" in a lawsuit does not necessarily mean one person won or did not. I took a case to the Supreme Court that resulted in our favorable Court of Appeals opinion being reversed, but we deemed that "loss" a success because the Supreme Court's opinion clarified a disputed area of the law, and on remand we had the benefit of a Supreme Court opinion telling the trial court how it had to rule (an interpretation of a portion of the statute did not exist before our case). In Rasmussen, the Plaintiff's attorneys won a major victory--they got a court to begin defining the duty of care a diver owes--in a relatively unexplored area. They just had bad facts for getting a money judgment.
My prediction is that
Rasmussen will ultimately be the chink in the armor the plaintiff's bar will exploit. All you need is one good ruling, and other courts start to fall in line. I don't believe that will be a good thing for the sport, and we may in fact see "scuba buddy" insurance offered at some future point.
There also appears to be confusion over the "common law" and statutory law. Unless modified by statute (a law enacted by a state legislature), the "common law" governs torts (injuries) in the U.S. Indeed, every state in the United States has, someplace in its statute books, a little section that says something to the effect of: "except as expressly modified by statute, the common law is adopted." Florida's version, for example, states: "The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state." See Fla.Stat.Ann. §2.01. It is passing rare for negligence to be legislated; most states defer to the common law definition. Even Florida, which has a chapter entitled "Negligence" in its statutes (Chapter 768), does not appear to abrogate the common law definition of negligence or the general principles embodied therein.
The general rules cited by the attorneys in this thread (including myself) arise out of the common law. However, local statutes may modify or trump those rules. For example, Florida has a broad "Good Samaritan" statute at Fla.Stat. 768.13 which shields a rescuer from liability in the event that injury is caused by a rescuer
who acts reasonably and prudently under the circumstances, i.e. non-negligently, if the victim does not object to aid. This is wonderful news for people in Florida (actually, I'm not sure it is wonderful news, because it appears the victim can still claim negligence and circumvent the law). But that law doesn't amount to a hill of beans outside of Florida. In Arizona, where I practice law, the "Good Samaritan law" is much narrower in scope and does not provide the broad coverage that Florida's law provides.
Which puts us back at the general answers: (1) in general, there is no duty to rescue; (2) once a bystander chooses to act, the bystander assumes a duty of care; (3) if the bystander breaches that duty of care and by the breach causes injury, liability may follow; and (4) local laws may attentuate or affect liability. For specifics, one must consult local laws; one may not assume that the law in one state will apply in another state.
