Does being a dive buddy expose you to liability?

[Thalassamania]

That's where expert testimony or industry standards become necessary. Essentially, the attorneys will hire "expert witnesses" to testify concerning the duty of care owed to a buddy or will look to training standards of different agencies to determine what duty of care is owed to a buddy. Unfortunately, there are very few reported cases concerning what specific actions are included in the duty of care owed between diving buddies. That's the reason I opined in an earlier response that Rasmussen is something of a landmark because a court has, for the first time, stated that a particular action (pre-dive equipment check) is part of the duty owed to a buddy.

As on of those “experts” please allow me to respond.

I hold the opinion that a dive buddy has a duty to assist his or her buddy up to the point where a reasonable person would determine that their life was endangered. I am confident that this opinion could be easily support with a litany of historic and contemporary references to the function of a dive buddy.
The question of what level of care a current new “diver” should be able to provide is an interesting point. It might be interesting to test the theory that an agency the removed “rescue of an unconscious diver from the bottom” from their standards at least shares liable in the case of an accident in which a buddy was unable (or defined him or herself as unable) to effect a rescue of a diver who, as a result suffered injury or death.

 

[ReefHound]

You can read about it in this very thread. One of my initial posts referenced the Rasmussen and Yace cases, both of which featured individual divers being sued. I also mentioned those cases in a thread begun in 2004.

If the defendant buddy had a duty to perform a pre-dive equipment check, then the plaintiff buddy had the same duty. Maybe it's time to counter sue?

In that case, the defendant was found not liable because his failure of duty did not cause the accident. I read what you wrote about gaining a moral victory out of the loss but frankly, if someone is suing me I'm not concerned about any moral victories they might win so long as I win the financial victories.

I don't think the real concern here is being sued when your actions actually contributed to the accident but the concern of being sued and found liable for merely being there on the same boat or arbitrarily buddied up.

 

[Peter Guy]

Thal, Thank you for stepping in on this.

Over the years I've read so many BAD posts on this topic.

What I think the lack of case law on this point shows is that SCUBA is a very safe activity -- in the whole. As a result of being "very safe" there aren't many accidents where the action, or inaction, of other parties would have made a difference -- hence so few law suits and such lack of case law.

To refer back to my original response, IF you have a "duty of care" to someone else, you can be held liable for failing to live up to that "duty of care." So the real question becomes, IS the "duty of care" of a buddy defined anywhere?

Here is my (partial) answer to THAT question:

Your buddy assists you with things like putting on and checking your equipment before the dive, helps remind you to check your depth, time and air supply limits, and provides emergency assistance in the unlikely event you need it.[emphasis mine]...

You and your buddy have a responsibility to each other.[emphasis mine] For the buddy system to work, you and your buddy must take it seriously (but still have fun) and work at staying together underwater....

page 54 -- PADI Open Water Diver Manual

 

[murdrcycle]

I think if you presented yourself as a DM or diveinstructor, or even as a "rescue diver", you could introduce liability upon yourself.

The only way that you can induce liability on yourself is if you are acting in the capacity of your profession. A rescue diver doesn't count, and a DM only does if he begins to act as a DM. If he just sits there like any other OW bump on a log, then the legal area is truly gray indeed. I have provided legal reference to this in many previous posts.

Very interesting and informative thread.

BTW, if any of you dive with me, I have no professional training, I'm blind in one eye, poor vision in the other, practically deaf, have terrible short term memory, and I live in a cardboard box.

BWAHAHAHA!!!

The long and the short of it is that I am referencing US law only. In US law you would not be found guilty. For one, it would have to be successfully argued that some sort of implied contract existed. In most states that means an offer, an acceptance, and a quid-pro-quo. One could argue that being teamed up as buddies fills this bill - if you agree to be a buddy, then you are accepting the common definition of what that means and the responsibilities that come along with it.

Now we get into the interesting part - what comes along with it? Never once, in any of my training, did they ever once teach that the definition of a buddy requires them to come to my aid in case of emergency. In fact, it tells quite the opposite - that I am responsible for my own actions and safety and that the purpose of a buddy is to provide a higher level of safety, not to provide someone to rely upon carte-blanc.

Rasmussen in an excellent example and proves what I have been saying. It states that they must show that he caused the accident, not that he was required to do anything to prevent it once it happened.
"To hold a defendant liable for negligence, the plaintiff must show that the defendant proximately caused the plaintiff's injury."

Additionally, the Rasmussen case involved a husband and wife, for which a higher level of responsibility is required by law.

Yace proves my point as well. (In order to find him guilty and award damages)"...we would have to say a scuba diver has a duty to his dive buddy not to panic. That, of course, we cannot do."

 

[northen diver]

 

[Peter Guy]

murdrcycle -- Sad to say, you have once again mixed several different legal concepts and come to the wrong conclusion regarding the OP's original question.

Question -- "Does being a dive buddy expose you to liability?" The Rasmussen case clearly says "Yes" (at least in my state, Washington). The Court held there WAS a "duty of care" created by virtue of being a "buddy." It isn't a "contract" (although that becomes an interesting legal analogy) but a "duty" to act as a "buddy."

As far as I know, there is no "spousal" duty of care that is different from the duty of care the Rasmussen Court discussed. (And I have no idea where you got that from -- it certainly wasn't raised in the decision.)

Lastly, in tort law, there has always been a two step discussion:

a. Was there negligence (i.e., did the defendant violate the duty of care owed to the plaintiff); and

b. IF SO, was the negligence a "proximate cause" of the injury (i.e., did it cause the harm).

Here the Court found there WAS a negligent act (failing to properly attach the inflater hose) but that the negligent act was NOT a proximate cause of the injury (getting caught up in a line).

FOR THE PURPOSES OF THIS THREAD, the Rasmussen case is as close to a slam dunk as you'll get in answering the OP's question -- YES, being a dive buddy DOES expose you to liability!

 

[ReefHound]

The only way that you can induce liability on yourself is if you are acting in the capacity of your profession. A rescue diver doesn't count, and a DM only does if he begins to act as a DM. If he just sits there like any other OW bump on a log, then the legal area is truly gray indeed. I have provided legal reference to this in many previous posts.

The caveat is that if you identify yourself as a DM/instructor you could be saddled with "babysitting" if you don't firmly resist and if the passengers know it and are newbies you will be looked upon for advice and as an example regardless. Perhaps still not a problem but beware of accepting any perks or bennies from the crew for "helping out" as that might throw you into a "working" relationship.

 

[Teamcasa]

...FOR THE PURPOSES OF THIS THREAD, the Rasmussen case is as close to a slam dunk as you'll get in answering the OP's question -- YES, being a dive buddy DOES expose you to liability!

I agree with you Peter, being a buddy does expose you to liability. The question moves to what level of legal exposure does this equate to. In diving the risks seems pretty small based on the lack of cases brought before the courts.

This thread has brought to light many good points and mainly that we are exposed and should behave accordingly. Be a good buddy, make and follow the dive plan. Practice your skills and dive often.

Or like many of us, dive with your spouse!

 

[Gombessa]

Rasmussen in an excellent example and proves what I have been saying. It states that they must show that he caused the accident, not that he was required to do anything to prevent it once it happened.
"To hold a defendant liable for negligence, the plaintiff must show that the defendant proximately caused the plaintiff's injury."

Murdr, as Peter stated, this line in Rasmussen is merely stating a basic tort premise - duty, breach, causation (cause in fact and proximate) and harm - you need all of the above. You see this line in every tort opinion published (and if not, it's because it's patently obvious).

Peter, I'm also not aware of any special impact of spouses on the general duty to care in negligence, but I have heard that some states have spousal relationships falling into a "special relationship" as regarding the duty to rescue. That of course still wouldn't affect the general negligence claim. But just as a special gift to Teamcasa, if you live in one of those states, you'll be happy to know that diving with your spouse may expose you to even more liability than if you were diving with a stranger

 

[Doc Intrepid]

"Is it possible that an attorney can convince a jury that by being a "certified diver" has equipped you to insure the safety of your buddy and that failure to do so may constitute negligence our your part?"

Unlikely.

If this were the case, logically there would be no explanation for the existence of a "Rescue Diver" certification.

It would not be a "reasonable" conclusion for a jury to find that a newly 'certified' open water diver is universally capable of ensuring the safety of a diver in distress.