Get Your Dive Buddy Waiver Right Here! Red Hots! (ha)

[agilis]

Ah, spelling carelessness added to my heavy burden. I avoided pointing out to you things like Greateness (yours, supra. I at first thought "cheese"). There are others, of course; mine due to the flawed educational background I tried to conceal. I always thought it was "lawers". It's actually lawyers??? Your several lapses in syntax and spelling were probably caused by nothing more than a slip of the finger, a typo, or perhaps even a defective keyboard. None of your errors in any way affects your greateness.

Sadly, I check and recheck almost not at all. I mean, it's just a message board. I've learned my lesson, though. No more feigning acuity or epitomizing modesty for me.

Rutgers is correct. Was it NJ that tipped you off, or was it the shallowness associated with all state unavercitys?

Your penultimate sentence sounds more like a plea than an observation.

 

[cowboyneal]

...a plea for amnesty, perhaps...yes, my keyboard is missing the "u," "h" and "f" and the "d," "e" and "l" stick mercilessly...did I write "Greateness?" Ay! There's that eeeeeeeeeeeeeeeeeee again (seeeeeeeeeeeee, there it goeeeeeeeeees again!). My gratedness cannot be affected by mere spelling errors; you are correct. Just a guess at Rutgers from the New Jersey thing, although I left myself open to be chastened had it been Princeton, which I actually thought it could be despite the horrific speeeeeeeelling.

 

[agilis]

Princeton has no law school.

 

[Swan1172]

I am not sure I see the point in having a waiver, as I really don't see there being a liability issue to begin with. Since when does being a dive buddy mean you have a legal duty or obligation to do anything?

 

[spacemanspiff1974]

Lawyer here..

Granted I do intellectual property and not tort, and nothing that I say here should be considered legal advice etc etc etc.

At least in Texas, the Texas supreme court has allowed some waivers of negligence. Also if you sign a liability waiver, you are waiving the rights of your heirs/survivors in the case of a wrongful death suit. A wrongful death suit is a derivative type of suit. In other words the cause of action arises out of the wrong done to you - but since they don't allow you to sue as a dead person (except perhaps in a weekend at bernie's sequel) your estate sues instead.

Regarding legal liability for rescuing or aiding your buddy, this has been discussed on many different posts. The short of it is this, you have no requirement to rescue or come to the aid of your buddy unless there is a legal duty to do so. A legal duty can exist if you were the person who caused the peril (you cut your buddy's regulator hose) or if there is a preexisting legal duty. A preexisting legal duty might arise if you were actively instructing your student/buddy in your capacity as an instructor. It might also arise if your buddy was your spouse or minor child.

As far as a liability waiver barring a wrongful death suit, I believe this is the law in Texas. I cannot say for certain that it would be the law in New York for example.

 

[cowboyneal]

Here we go again...lol...that's right: Princeton does not have a law school! Amazing, leaving all that money on the table...

 

[minnesota01r6]

,,,,,,,,,,,,,,,,well reasoned legal stuff.................

You are correct - there are 2 different types of wrongful death statutes, and it all depends on the language in the statute and how that state interprets said language. I will term the two "survivorship" causes of action and "independent" causes of action. Survivorship causes of action (like Texas would seem to have) pass on any claims that the diver would have to their family, while independent causes of action (like new jersey) are treated as separate causes of action arising out of the death of the diver.

Survivorship causes of action can be barred by a waiver because since the diver had no claim on which to recover, there can be no claim passed to the survivors.

Independent causes of action cannot be barred in this way, since they are separate causes of action that originate in the survivors.

Express assumption of the risk and waiver can, in most jurisdictions, be raised as a complete defense to either independent or survivorship causes of action because, since the wrongful death arises out of a negligence claim, one can defeat the negligence by showing they owed no duty to the diver (assumption of risk and/or waiver effectively remove any duty owed).

In New Jersey, however, the courts have reasoned that they cannot allow such an inconsistent result. Here are the pertinent parts of the decision:

In order for such a waiver to also apply to decedent's heirs, the agreement must manifest the unequivocal intention of such heirs to be so bound. The public policy underpinning the Wrongful Death Act requires that we narrowly construe any attempt to contractually limit or, as in this case, outright preclude recovery. Decedent's unilateral decision to contractually waive his right of recovery does not preclude his heirs, who were not parties to the agreement and received no benefit in exchange for such a waiver, from instituting and prosecuting a wrongful death action.

.............................................

[E]ven if decedent had the legal authority to bargain away the statutory right of his potential heirs, society's interest in assuring that a decedent's dependents may seek economic compensation in a wrongful death action outweighs decedent's freedom to contract.

Lesson: don't scuba dive in NJ without getting your buddy's heirs apparent from signing a release too!

EDIT: DISCLAIMER: I AM A 3rd YEAR LAW STUDENT. I AM NOT LICENSED TO PRACTICE LAW IN YOUR JURISDICTION. THIS IS NOT LEGAL ADVICE. PLEASE CONSULT A LAWYER IN YOUR JURISDICTION FOR LEGAL ADVICE.

SECOND EDIT: spaceman - some jurisdictions have held that a duty arises simply by being a buddy, since diving is a dangerous activity that is made safer by the use of a buddy. Since the agreement to be a buddy necessarily involves an agreement to aid each other in the event of emergency, one can be held to owe a duty to their buddy.

 

[cowboyneal]

...and thus, the buddy waiver was born...

 

[Cacia]

I still think the simplest solution is don't establish the relationship from the start.

You want to dive together? Meet at the bottom. Same ocean.

 

[Scuba]

This quote is from the second page of an article in Scubadiving.com entitled: Buddy Diving Legal Liabilities.
http://www.scubadiving.com/training/basic_skills/buddy_diving:_legal_liabilities/0/

So What Should a Buddy Do?
The courts so far have been much better at using the concept of negligence to determine, case by case, what a diving professional should do or not do than in establishing what a buddy should or should not do. Here are some of the actions that would likely result in a buddy being found liable for harm to another diver:


* Guilty: Taking an open-water certified diver who did not have the proper training, experience or equipment into a cave, wreck or under ice.

* Guilty: Taking an uncertified diver scuba diving.

* Guilty: Refusing to share air with a buddy, with no compelling reason for the refusal.

* Guilty: Taking an inexperienced certified diver into severe or extremely demanding conditions, such as heavy surf, strong current, polluted water, extreme depths or cold water without proper thermal protection.

* Guilty: Providing false or misleading information to a buddy about personal diving experience, environmental conditions, decompression status, gas available or equipment operation.

* Guilty: Ditching the weights of another diver when they should not have been ditched, therefore causing an air embolism, entrapment or being run down by a boat.

* Guilty: Refusing to return the primary regulator during buddy breathing.

* Guilty: Diving while under the influence of drugs or alcohol.

* Guilty: Playing underwater chicken games, such as going into caves, turning off lights, seeing who can go the deepest or who can hold his breath the longest.

* Guilty: Hitting, removing gear from another diver, holding a diver down, or otherwise sabotaging the diver's safety.

While some of this probably has yet to be legally tested, it's important to recognize that buddy diving does entail a mutual relationship of responsibility, unless it's all exempted. In which case you are really not buddy diving anymore. Irrespective of the legal ramifications, if you absolve your buddy of all normal, or stipulated, mutual responsibility from buddy diving, and/or refuse to abide by any such responsibility, diving with another diver may expose you to the negative risks associated with being in the proximity of another diver without providing any of the benefits. For me, that a loosing prosposition.

While I can't blame anyone for protecting their interests, let's not get the case of paranoia that some dive pro's have.

Another point I like to make regarding the negligence issue. There is negligence and there is gross negligence characterized as willful and wanton, from which a negligence waiver may not protect agrieving party. I’ll leave this for the lawyers to expand on.

Not to hijack this thread, but given the current state of affairs, more than a buddy waiver what is needed is a buddy contract. If you’re going to dive with another - you might as well put em to good use.