Legal liability of dive buddy

[jimmy71]

As if we need another reason to worry about instabuddies. Frankly, none of the suggestions will fully shield you. In the end, the purpose of a buddy is to help you out in a pinch -- everyone knows that. That is the job/duty of a buddy. If something happens there is always room to argue about whether it was done properly or at all. Signing a release isn't going to help -- what would it say, "I agree to be your buddy, but if I don't actually act as your buddy, you can't hold me responsible?" That's nonsensical. Negligent dive buddy insurance? First of all, I don't know where you would get it and second it just creates and incentive to sue because there's now a pot of money sitting there. Choose buddies wisely?! Will someone please explain how to do this? What if there are only two unpaired people on the boat? Unfortunately, the only reliable way I see to avoid this is to bring a trusted buddy with you, which is what I always do. I guess the good news is that accidents are rare and buddy lawsuits are even more rare, but I sure wouldn't want to be the one with the crosshairs on me.

What you are saying seems correct to me. By agreeing to be someones buddy, you seem to enter a duty contract, even if neither of your intend to follow it as Ricky says. Just because you and your buddy understand and accept the risks of pretend buddies, it does not mean your family is not crazy and can go after someone. It seems like to me the only solution is to avoid the duty by not having an official or assigned buddy. I have no problem paying the couple bucks for a solo card if it avoids an issue. Seems much cheaper than some sort of crazy insurance.

I do find it funny that the ONLY case in that paper I thought the buddy might be found liable (the one who "panicked" and refused to share air with his OOA buddy) was NOT found liable. crazy world.

JImmy
Jimmy

 

[nimoh]

I do find it funny that the ONLY case in that paper I thought the buddy might be found liable (the one who "panicked" and refused to share air with his OOA buddy) was NOT found liable. crazy world.

the "panic" plea in a scuba trial seems to be much like a "temporary insanity" plea in a murder trial

 

[jimmy71]

I do not care if the "flying spaghetti monster made me do it" defense works, I just need to remember to say it when i hit the surface............

 

[t-mac]

What you are saying seems correct to me. By agreeing to be someones buddy, you seem to enter a duty contract, even if neither of your intend to follow it as Ricky says. Just because you and your buddy understand and accept the risks of pretend buddies, it does not mean your family is not crazy and can go after someone. It seems like to me the only solution is to avoid the duty by not having an official or assigned buddy. I have no problem paying the couple bucks for a solo card if it avoids an issue. Seems much cheaper than some sort of crazy insurance.

I do find it funny that the ONLY case in that paper I thought the buddy might be found liable (the one who "panicked" and refused to share air with his OOA buddy) was NOT found liable. crazy world.

JImmy
Jimmy

First off, I should have acknowledged the solo point -- that of course is the other way to do it, but as you say that won't work everywhere. I'm fortunate to have a reliable dive buddy, but I'm thinking about doing solo training (or do we call it "self-reliant diver" training? ) as a back-up rather than facing this issue. Faced with the choice of relying on anyone I just met and my own pony, you know where I would put my cards.

Another amusing point is that the agencies push the buddy concept and except for the issues discussed in this thread it is a good idea. At the same time, though, they offer liability waiver forms to protect themselves and their shops, but at least looking at PADI's there's not any mention of shielding buddies. Thanks a lot. You tell me to do this as part of my training and then you leave me hanging out there while you protect yourselves and the shop! Again, even if this were changed, it wouldn't fix everything, but one more piece of documentation (that is already collected and just needs now to mention buddies) would give another thing for the jury to think about.


It is interesting that the one case did not find liability where you might think it would. I hope this is a general acknowledgement that we should be more personally accountable, especially in a "risky" sport like diving. Unfortunately, it was probably because of "inferior" lawyering. As you pointed out, these cases will all be decided by juries and a lawyer with a good story can get some pretty improbable results when dealing with a jury. I would not want my fate to depend on that dynamic.

Finally, you're absolutely right. You can agree all you want to be "fake" buddies, but when someone gets hurt it's the battle of the stories. Frankly, even if you have all the writing in the world I don't think you're protected. It may help, but depending on the facts I think you still could get nailed. This is extreme, but if you are OOA and I refuse to share (maybe I even have good reasons), do you think there isn't a good lawyer out there that would hesitate to go to a jury and tell them that you didn't sign that paper so I could murder you?! Do you think there isn't a jury that wouldn't buy it?

Sorry for the rant, but like many people on SB I'm saddened by the lack of accountability (and win-the-lottery mentality) in our society that drives lawsuits like this.

Cheers,

Tom

 

[nolatom]

What I took from the paper is that releases won't shield you from family claims after a death, therefore the protection is illusory.

"joint venture" negligence of a group of divers may impress a conservative jury/judge but not a liberal one, especially where "joint and several" liability under state law makes each diver 100% responsible for his 1/20th share of the boneheadedness of the collective group of 20. that's fair?

"assumption of risks inherent in the sport" becomes a crazy concept when "hey, buddies panic, that's the risk you took when you decided to dive with one" butts up against the concept of "buddies aren't supposed to panic, they're supposed to give you their octo (for example). Which concept wins? Refer to the "conservative/liberal court" comment above.

"Was (whatever) the 'proximate cause' of the accident?" is usually a tough call to make, but not always. Wasn't buddy failing to monitor pressure gauge the proximate cause of the OOA, rather than buddy failing to inquire periodically about victim's psi status?

(my) Conclusion: "It's complicated--do your best and hope for the best, there are no magic things you can do to protect yourself other than being a good diver and paying attention".

 

[jimmy71]

Yup yup and more yup. Only answer I see to this is to not buddy up. If boat allows SOLO and all that with the proper cards, you can refuse, they will just make a three person buddy group and move on. Thus it becomes someone else problem.

off topic, but anyone want to let me on their boat in Va beach?

---------- Post added April 18th, 2012 at 10:51 AM ----------

What I took from the paper is that releases won't shield you from family claims after a death, therefore the protection is illusory.

"joint venture" negligence of a group of divers may impress a conservative jury/judge but not a liberal one, especially where "joint and several" liability under state law makes each diver 100% responsible for his 1/20th share of the boneheadedness of the collective group of 20. that's fair?

"assumption of risks inherent in the sport" becomes a crazy concept when "hey, buddies panic, that's the risk you took when you decided to dive with one" butts up against the concept of "buddies aren't supposed to panic, they're supposed to give you their octo (for example). Which concept wins? Refer to the "conservative/liberal court" comment above.

"Was (whatever) the 'proximate cause' of the accident?" is usually a tough call to make, but not always. Wasn't buddy failing to monitor pressure gauge the proximate cause of the OOA, rather than buddy failing to inquire periodically about victim's psi status?

(my) Conclusion: "It's complicated--do your best and hope for the best, there are no magic things you can do to protect yourself other than being a good diver and paying attention".

Good points. The issue is that both people are responsible. During a buddy dive, who is responsible for ensuring the buddies stick together? If you believe that being close enough to me to use my air in an OOA emerg is important, then I recommend you stay close to me.

"Hoping for the best" goes against all the training I have received and how I dive. This is also why I assume NO ONE will rescue or keep me alive but myself.

It takes two people to lie. One to tell a lie and another to believe it.

Jimmy

 

[rx7diver]

How much of the blame for this liability/litigation morass is owed the scuba training agencies, themselves, I wonder!? If the agencies trained divers from the outset to be self-reliant, would we even be discussing any of this? I can think of no compelling reason why divers cannot be trained to dive solo from the outset. Why this continued *insistence* on the buddy system, which sometimes exposes a dive buddy to this sort of almost untenable liability risk?

Why not train a diver from the outset to be self-reliant, perhaps insisting that he or she be required to dive provisionally as a "trainee" or "candidate" with a qualified/sanctioned individual for a certain period of time before he or she can undergo final evaluation for certification? You know, like driver education. Or pilot education?

rx7diver

 

[nimoh]

How much of the blame for this liability/litigation morass is owed the scuba training agencies, themselves, I wonder!? If the agencies trained divers from the outset to be self-reliant, would we even be discussing any of this? I can think of no compelling reason why divers cannot be trained to dive solo from the outset. Why this continued *insistence* on the buddy system, which sometimes exposes a dive buddy to this sort of almost untenable liability risk?

Why not train a diver from the outset to be self-reliant, perhaps insisting that he or she be required to dive provisionally as a "trainee" or "candidate" with a qualified/sanctioned individual for a certain period of time before he or she can undergo final evaluation for certification? You know, like driver education. Or pilot education?

rx7diver

On the surface, I like that idea, seems like it would solve a lot of problems. However, I think there would still be some legal responsibility if I were in the water with other divers, something went wrong, and I didn't act.

 

[k ellis]

One thing about liability is a person can be sued at any time for any thing. Even if there is zero chance to win a person can still sue. With this in mind a person can walk in front of your house and trip over a crack in the street and sue you because it was in front of your house and you knew about it. There is almost no chance of this winning but the mere fact is that it is possible.

As far as diving goes your potential liability will increase with more diving experience. 2 brand new divers go out and one runs out of air its kind of hard to say your buddy should have known better when he barely knows enough to watch his own air. Now on the other hand a diver with thousands of logged dives would be more likely (Though I would still say very slim chance) of being held liable for not watching out for his buddy.

Though lawyers may chime in here and say I am wrong the most important thing to remember is cases that should have never went where they did have won big dollars for people. Cases such as someone ordering coffee and spilling it on themselves. The arguement was it did not need to be as hot as it was but the reality is everyone who buys coffee usually expects it to be hot so there should be a reasonable expectation of it being hot.

There are times when people willingly take their kids to the park knowing swings hold the potential to hurt a child if they fall out but instead let the child do what they want while they are on the cell phone looking away and then expect the city to pay for their childs medical bills (And often win) when they are injured.

Lawyers often opt to take these to jury trials so they can get people who dont see the overall picture and feel sorry for the victim and therefore win the case.

 

[jimmy71]

One thing about liability is a person can be sued at any time for any thing. Even if there is zero chance to win a person can still sue. With this in mind a person can walk in front of your house and trip over a crack in the street and sue you because it was in front of your house and you knew about it. There is almost no chance of this winning but the mere fact is that it is possible.

As far as diving goes your potential liability will increase with more diving experience. 2 brand new divers go out and one runs out of air its kind of hard to say your buddy should have known better when he barely knows enough to watch his own air. Now on the other hand a diver with thousands of logged dives would be more likely (Though I would still say very slim chance) of being held liable for not watching out for his buddy.

Though lawyers may chime in here and say I am wrong the most important thing to remember is cases that should have never went where they did have won big dollars for people. Cases such as someone ordering coffee and spilling it on themselves. The arguement was it did not need to be as hot as it was but the reality is everyone who buys coffee usually expects it to be hot so there should be a reasonable expectation of it being hot.

There are times when people willingly take their kids to the park knowing swings hold the potential to hurt a child if they fall out but instead let the child do what they want while they are on the cell phone looking away and then expect the city to pay for their childs medical bills (And often win) when they are injured.

Lawyers often opt to take these to jury trials so they can get people who dont see the overall picture and feel sorry for the victim and therefore win the case.

While I understand what you are saying, The paper I posted show that there is a degree of liability assumed when you accept to be someones dive buddy. EVen if you are accepting it in name only. WHat that other person says makes some sense, what if the buddy system was never taught or expected. We were all expected to be self sufficent. Interesting.