How accountable...

[fisheater]

Got a citation? I read the paper quite a bit and haven't seen anything out of the legislature in years! Non-medical efforts were never covered by immunity (as I read the decision).

Here's the operative portion of AB 83, which was enacted and signed into law on August 6, 2009, specifically to overturn the Van Horn v. Watson decision.


"The people of the State of California do enact as follows:

SECTION 1. Section 1799.102 of the Health and Safety Code is amended
to read:
1799.102. (a) No person who in good faith, and not for compensation,
renders emergency medical or nonmedical care at the scene of an emergency
shall be liable for any civil damages resulting from any act or omission.
The scene of an emergency shall not include emergency departments and
other places where medical care is usually offered. This subdivision applies
only to the medical, law enforcement, and emergency personnel specified
in this chapter.
(b) (1) It is the intent of the Legislature to encourage other individuals
to volunteer, without compensation, to assist others in need during an
emergency, while ensuring that those volunteers who provide care or
assistance act responsibly.
92
(2) Except for those persons specified in subdivision (a), no person who
in good faith, and not for compensation, renders emergency medical or
nonmedical care or assistance at the scene of an emergency shall be liable
for civil damages resulting from any act or omission other than an act or
omission constituting gross negligence or willful or wanton misconduct.
The scene of an emergency shall not include emergency departments and
other places where medical care is usually offered. This subdivision shall
not be construed to alter existing protections from liability for licensed
medical or other personnel specified in subdivision (a) or any other law.
(c) Nothing in this section shall be construed to change any existing legal
duties or obligations, nor does anything in this section in any way affect the
provisions in Section 1714.5 of the Civil Code, as proposed to be amended
by Senate Bill 39 of the 2009–10 Regular Session of the Legislature.
(d) The amendments to this section made by the act adding subdivisions
(b) and (c) shall apply exclusively to any legal action filed on or after the
effective date of that act."

Prior to the Van Horn v. Watson decision, the public and the bar widely considered the Good Samaritan law to cover all emergency care, whether strictly medical or otherwise. As soon as Van Horn was decided, the public and bar (yes, including us trial lawyers) took action to bring the law back to what it had always been thought to be.

Somehow I doubt this but I'm not a lawyer.


I have no control over how my buddy dives, I have no knowledge of their medical conditions, I don't know if or when they had their equipment serviced. Heck, I don't even know if they are a trained diver. It's not like we play c-card poker.

Why would anyone take any responsibility whatsoever for an 'insta-buddy'. Risk your home, pension, 401k's and financial future on some bozo on a boat? If this liability was fully disclosed there would be a lot more solo divers. In fact, on cattle-boats, I don't agree to be a dive buddy. I am assigned to be a buddy. Usually to the most incompetent diver on the boat. Been there, done that, wish I hadn't.

I'd like to see some case law on this. Something direct to the point. A diver with an 'insta-buddy'.

Richard

Generally, everyone has a duty of care to avoid causing an unreasonable risk of harm to others. (In Calif., this is codified in Civ.Code section 1714.) When you drive, you have a duty of care. When you walk down the street, you have a duty of care. When you own or rent real property, you have a duty of care. When you agree to be a dive buddy, you take on the duty of care to act as a reasonably prudent dive buddy of your training and experience would under like circumstances.

That doesn't mean that you guarantee his/her health and safety, or that you have to be a hero. You're not responsible for them obeying the rules. You're not responsible for their medical condition. However, you are responsible for acting as a reasonably prudent dive buddy. You can't simply abandon them, without just cause. You can't refuse to give aid that one would normally expect from a dive buddy (e.g., refusing access to your safe second), unless that would put you into unreasonable danger.

Sorry. But such are the responsibilities of being an adult.

 

[Doc Intrepid]

"...you are responsible for acting as a reasonably prudent dive buddy. You can't simply abandon them, without just cause. You can't refuse to give aid that one would normally expect from a dive buddy (e.g., refusing access to your safe second), unless that would put you into unreasonable danger"...

With respect, unless I am reading you incorrectly, I suspect you are mistaken.

It is my understanding that basic scuba training, do long as both participants are diving recreationally/avocationally - e.g. not being paid to do so - confers no "higher standard of care" requirements.

In other words, if you and I were diving together, LEGALLY we owe no different duties toward one another than we would if we were walking down the street side by side.

MORALLY, etc. may be a different matter.

But if you and I agree to be scuba buddies, there is no sudden set of LEGAL responsibilities that is mysteriously imposed upon us simply because we set out to pursue an avocational activity together. At least no moreso than if we went hiking together, riding motorcycles together, or fishing together.

(But I've been mistaken in the past...)

Doc

 

[fisheater]

You and I go diving. We agree to be buddies. We're more than two divers who happen to be in the same place at the same time. We owe each other a duty of care to be reasonably prudent dive buddies.

Your reg freezes up. You turn to me, your dive buddy and signal that you're OOA and want me to air share. Even though you're not panicking and I've got plenty of air and have been trained (and trained others) on air sharing, I flip you off and hightail it out of there. I'm negligent. I'm violating a legal (and moral) duty.

However, if you then swim over to another diver, and he does the same, he's a jerk, but not negligent. He didn't agree to be your buddy, as I had. All of the agencies teach that your dive buddy is your source of emergency air. That's part of the package you agree to when you buddy up. I agreed to take on that role for you. He didn't.

 

[Doc Intrepid]

You and I agree to go hear a concert together. We agree to drive in one car. We park in the parking lot, get out, and begin to walk to the door. We are two buddies who have agreed to go hear a concert together.

Suddenly a guy with a ballbat jumps up from between two parked cars and commences to whack you with the bat while loudly demanding you turn over your shoes. You look at me and say "Dude, I could use some help here"... I flip you off and run away.

I am certainly violating a moral duty to help my friend, and socially I'm a big coward and worthless human being.

But our agreeing to go see a concert together did not constitute a legally-enforceable contract that holds me subsequently liable for failing to come to your aid. I may have taken on various moral and societal responsibilities by agreeing to go together with you to the concert - but there is no valid, enforcible (in a court of law) legal contract between us.

To the best of my knowledge - and if you can provide a legal citation I will happily declare myself utterly wrong - it is the same with agreeing to be dive buddies.

Such an agreement does not constitute a valid, legally binding (in a court of law) contract between us that requires either of us to render aid to the other or be prosecuted for failing to live up to the terms of the contract. We are not held to any higher standard of duty or care, as might be the case if we were, say, police officers or medical professionals. For one thing, the court would need to examine the precise terms to which we contractually obligated each other. And my understanding of your obligations may be different than your understanding or anticipation of mine.

Again, I may be mistaken - but TTBOMK dive training traditionally identifies moral or professional ethical obligations to one another, but not legally valid and binding contracts between one another.

Doc

 

[Thalassamania]

I suspect that a reasonable case could be made that a buddy has responsibility to provide those buddy assists that are normally trained during a class, e.g., auxiliary air supply.

 

[Peter Guy]

In other words, if you and I were diving together, LEGALLY we owe no different duties toward one another than we would if we were walking down the street side by side.

NO, NO, A 1000 TIMES NO!

(BTW, this has been discussed numerous times and so why do so many SB "regulars" not get it?)

I will ignore the criminal side of this issue for many reasons, not the least of which is criminality requires something MUCH more than "mere negligence."

I will also ignore the Good Samaritan Laws of each jurisdiction if for no other reason than each one reads differently.

So, the rest of this will only concern general TORT liability in COMMON LAW JURISDICTIONS (that is, most of the English Speaking World, including the US (and yes, I am assuming what we speak is English)).

To have liability, several things must exist:

a. An injury;

b. The "proximate cause" of the injury must result from an act of the defendant;

c. The defendant had a "duty of care" to the injured party; and

d. The defendant failed in providing that duty of care through his act (or inaction).

Does a "buddy" have a duty of care to the buddy? Yes. (see Rassmussen v. Bendotti 107 Wn. App. 947 (2001))

People like Thal, who may be called as an expert witness, would testify that EVERY diver is trained, from the outset, to be "a good buddy." A good buddy does NOT abandon his buddy, is there as a redundant air source and a redundant brain, etc. THUS, IF you were to abandon your buddy AND as a result of that abandonment the buddy was injured, yes, you would (and should) face liability.

IF you had validly signed waivers between you and your buddy, you may be able to waive such liability, but that is a totally different set of issues.

No, I did NOT sleep in a Holiday Inn Express last night; yes, I did go to Law School WAY too many years ago to be good for much; and yes, I no longer practice law.

 

[rstofer]

I have a theoretical problem with this. It's theoretical because I only dive with family so the 'insta-buddy' thing doesn't enter into it. But...

I'm a photographer. I trying to get a shot and my buddy gets separated. Bored, no doubt! Swims off a ways. I don't notice because I am concentrating on what I came to do. Take photographs. Now my buddy is a long way away and has a problem. I don't notice and he can't swim to me. Somehow this is my problem?

Am I actually obliged to have eyes on my buddy at all times? Not just a good samaritan but also a shepard? Good thing this is all theoretical because, for an absolute certainty, it won't happen.

I hae no problem helping another diver, buddy or not. I will always do what I can. But I don't want to be held legally liable for the outcome. No more 'insta-buddies'. Solo diving has a lot fewer risks. I may live or I may die but I won't wind up under a bridge in my old age.

We need a release of liability form to use on 'insta-buddy' dives. "I agree to dive with you. I don't agree to rescue you. If you expect someone to rescue you, find another buddy." Everybody else has a release form!

Richard

 

[rstofer]

You and I go diving. We agree to be buddies. We're more than two divers who happen to be in the same place at the same time. We owe each other a duty of care to be reasonably prudent dive buddies.

We didn't agree to be dive buddies. We were assigned to be dive buddies by a 3rd party as a condition of getting wet. In my view, we really are two people in the same ocean on the same day. If things work out, great! If not, I'll send flowers.

But if your BC craps out and you sink below 100' still accelerating, you're on your own. I'm not coming after you.

Richard

 

[Doc Intrepid]

Peter, you are an oak.

I shall defer to your vastly greater knowledge of the law, and declare myself standing corrected!

Fisheater, may you always dive with a buddy who is not a jerk.

Richard, I often choose to dive solo, and commend it to your consideration!

 

[Thalassamania]

We didn't agree to be dive buddies. We were assigned to be dive buddies by a 3rd parts as a condition of getting wet. In my view, we really are two people in the same ocean on the same day. If things work out, great! If not, I'll send flowers.

But if your BC craps out and you sink below 100' still accelerating, you're on your own. I'm not coming after you.

Richard

Deny it all you want, you did agree to be buddies, and like it or not there is a duty incumbent upon a buddy. Just what that duty is, and what it's limits are, is not something that you get to decide; a court does that after the fact.