Legal liability of dive buddy

[vladimir]

Check these threads on the topic for the benefit of Peter Guy's legal education and general clarity of thought:

http://www.scubaboard.com/forums/ba...es-being-dive-buddy-expose-you-liability.html

http://www.scubaboard.com/forums/basic-scuba-discussions/302427-how-accountable.html

 

[Eric Sedletzky]

ZKY, looking at your incident another way (and I recall when you recounted it), could you perhaps consider that taking this diver to 60 feet was an error of judgment?

I ask because, when I dive for the first time with someone who is novice and for whom I have no references, I don't even go that deep. We have a nice local site that maxes out at 40 feet, and that's if you can reach the far boundary. Anyone who can do that before turn pressure has passed a significant test of technique; the average new diver barely makes it out of the eelgrass region of the site. At that point, depth is never more than 20 feet, and I figure I can get anyone to the surface from there (and hope I can keep them breathing while I do it!) I don't take an unknown, novice diver to 60 very often, and only if I have a second experienced diver with a good gas supply to help me do the rodeo if required.

One thinker can mitigate most of the risks of diving, except panic . . . and the one time I almost scrubbed a dive with a novice was when I saw someone near panic because she fell down on entry. I went against my best judgment to go on to do the dive; it went fine, and the young woman in question developed into a very competent diver. If we all decide not to dive with such folks because of litigation risk, where will they be?

Lynne,
Looking back at it I should have not even dove with this guy from the start.
The problem is I kind of got sucked into the situation a few ways.
I knew the guy from working with him on jobs so he wasn't a total stranger, in fact we got along quite well so I automatically gave him the benefit of the doubt when he told me he dove and was trained by a guy I know in a round about way.
We also went up to the site in his truck.
I also have a habit of letting people run things to some degree and he wanted to spear fish which I should have not let him, but then looking back he probably would have blown off what I said and took his gun anyway.
The rules for that cove are you that if you have a speargun you have to surface swim outside of the cove before descending because the cove is a preserve, so that's why we were in deeper water.
Overall, big error on my part and entirely my fault, bad bad bad judgement and it has changed everything in my world just like post 911.

Lately, I do dive with new divers when we have a club dive, but I am soooo careful. They have to sign a club waiver to be able to dive so at least there is something.
When I dive with a newbie that I don't know there are no spearguns period, the focus is on being a buddy and seeing how they dive. 30 to 40 feet, that's it.
That is only on club dives though, and fairly rare. Normally there are others in the club that prefer to do those tasks.

When I go on my own there are no newbies, only seasoned divers that I know. We usually have a lot invested in a day of diving and I've had a day ruined way too many times over the years.

 

[jimmy71]

You know, I find this whole thread unbelievably sad. I work in a field where liability is a constant specter, looking over my shoulder. Worse, it's real; in my profession, the average is that you will be sued every 7 years. I've been lucky until recently.

In contrast, the NUMBER of suits filed against dive buddies, compared with the number of dives completed or even the number of incidents, is extremely low.

I go to work on a regular basis, knowing what the odds are against me. I also dive with all kinds of people, some of them highly skilled, and some barely out of OW (I have insurance for the ones who are IN open water!

) When you start letting the remote possibility of a lawsuit keep you from enjoying a pleasant dive with a buddy, that's tragic. If you have doubts about the capacity of an instabuddy, set parameters for the dive within which you feel you can manage most if not any issues. A friend dove as a mentor with a new diver a few weeks back -- the diver lost his primary regulator, could neither retrieve it nor remember where his secondary was, and would not accept a reg from my friend. As a consequence, he took the shell-shocked diver to the surface quickly, and no one was harmed. (My friend has rethought diving with beginners, though, which is sad.)

If you want to dive solo, do so. But please don't use legal liability to legitimize your choice.

TSandM and K ellis,

K I gather you are with police and TSandM I believe your are ER MD. Are you telling me that your choices and practice as an MD is not influenced by your desire to mitigate liability? The days of do your best and what you think is right is long gone. Yes I find it crazy sad and hate that it is true, but that does not change the reality. Defensive medicine is just reality. I find it hard to believe that you do not take liability into consideration when you make decisions. I am constantly being trained and lectured on the liability and risks that my decisions present on the job. We are often trained to evaluate our decisions and imagine how/if we could defend them in sued over them.

Would you give Toradol to a breast feeding mother? I have had more than one argument about this in the OR. It usually ends in a statement much like "YOU can do anything you want, I am not going to give it."


Why would you not weigh liability in the pros and cons of diving solo? It must be included in many dive decisions. Did you not consider it when you became a DM or instructor?

I repeat how SAD that this is a reality. I HATE defensive medicine and think it is a huge problem. While you may try to limit your liability, as you point out it does not mean you will not be sued. You accept that as many people do. When bad things happen, people try to blame someone (other than themselves). Your job and much of your practice is to be sure you are not the last person holding the potato when the music stops.

If you want to see it in a more noble light look at it this way, You believe that your practice is the best of all your colleagues (doesn't everyone). If would be a disservice to people if you had to stop practicing because you did not order a few simple tests that were not needed so that you might be able to defend yourself in court later because someone had bad outcomes. So the price of a few tests is well worth the cost. For the good of the people.

---------- Post added April 20th, 2012 at 10:45 AM ----------

I think what it boils down to is if you're not prepared to dive with someone, don't get in the water with him. All excuses and legitimate reasoning aside, if you're thinking of the dive as my dive rather than our dive, you're diving solo anyway ... regardless of who or where your dive buddy is. If that's the case, just make the commitment to dive without that person and be done with it. If you're not willing to make the commitment to have another person join you or your team, say so before the dive begins and be done with it. Because otherwise, you're setting an expectation that you're not really committed to ... and that's just increasing the potential for confusion and stress underwater ... and both of those are signficant factors to the very sort of incidents you're worried are going to happen. The best way to avoid that is to be upfront at the beginning ... before you put yourself in a place where it can happen.

A significant percentage of diving accidents occur because of decisions that were made before the diver(s) ever got in the water ... this is an example of one of those decisions. If you're going to get in the water with someone, then commit to the duties and responsibilities that implies. If you don't want to make that commitment, then don't get in the water with them. That, in a practical sense, is the best protection you can get ...

... Bob (Grateful Diver)

This is exactly my point. I know with many instabuddies, the relationship is in name only, but the responsibilities and duty are very real. Many people "buddy up" because the boat requires it. I used to accept that after a quick discussion with the new instabuddy on my planned dive and priorities. They were usually fine with this as they just wanted to get into the water and dive the dive they planned to. If they did not feel comfortable with this, they found a new group. It is my experience that people who do not feel comfortable diving solo or unbuddyed, make sure they bring a buddy or have a DM. Spear fishing is a great example. Those people scatter around like cockroaches. It is a loose interpretation on the buddy system and everyone who is diving accepts that. The problem is that their family might not and sue the crap out of you. The paper seems to point towards joint liability because you guys agreed to something neither had intentions of following. If you doing it anyway, why not make it official?

 

[TSandM]

Jimmy, of COURSE liability figures in my practice, and of COURSE I, like virtually all other American physicians, order tests and admit patients to the hospital out of liability fear, rather than a realistic risk assessment.

But to me, deciding to dive solo would be like deciding to stop practicing medicine. Instead of diving solo, I do what I described above, and do dives with unknown divers where I find the risk assessment is in my favor. This is akin to ordering too many tests; I haven't stopped doing what puts me at risk, but I've taken steps to reduce that risk wherever I can.

 

[jimmy71]

Jimmy, of COURSE liability figures in my practice, and of COURSE I, like virtually all other American physicians, order tests and admit patients to the hospital out of liability fear, rather than a realistic risk assessment.

But to me, deciding to dive solo would be like deciding to stop practicing medicine. Instead of diving solo, I do what I described above, and do dives with unknown divers where I find the risk assessment is in my favor. This is akin to ordering too many tests; I haven't stopped doing what puts me at risk, but I've taken steps to reduce that risk wherever I can.

So you are saying that that value/joy of diving is the ability to do it/share it with others. I had not seen it this way. I really enjoy the self reliance of diving and often solitude of being underwater. If I was the last person on earth, I would happily still dive. My daily life constantly requires me to be/feel responsible for other people and I take it very serious. It is hard to turn off. I imagine you know what I mean. It is hard to turn off the doctor in you. If you have found ways to do this, you are better than me.

If I am diving with someone, my happiness and enjoyment takes second place to theirs, and since I do not trust many people, that means I can not trust them to stay close and stay out of trouble. When diving, I do not want to be "on." That is unless you are paying me. Then my enjoyment of the dive is irrelevant and not a factor or expectation.

If the law or someones expectations say I am responsible or obligated to your safety, then the serious takes over and my enjoyment becomes a very distant priority. While I often dive this way, I do not like all my diving to be like this. I am sure I do not want to dive this way for an instabuddy on a boat if it can be avoided.

Jimmy

 

[rx7diver]

We all need to be a bit careful here: Drawing parallels between the liability risk suffered when working in a profession for which professional liability insurance is available and required, and the liability risk suffered when recreationally diving as a part of a dive buddy team, is spurious (at best).

rx7diver

 

[Doubler]

While not precedence in this country yet, precedence for bad buddy actions were set in the Tina Watson case. In Australia you can go to prison for being a bad buddy. So in addition to snakes, spiders and salt water crocs add bad buddy laws as another reason not to go to Oz.

 

[jimmy71]

While not precedence in this country yet, precedence for bad buddy actions were set in the Tina Watson case. In Australia you can go to prison for being a bad buddy. So in addition to snakes, spiders and salt water crocs add bad buddy laws as another reason not to go to Oz.

The paper I posted talks about a few cases in this country (one in your state) that the actions of a buddy have lead to financial/legal obligations. This is exactly the point.

---------- Post added April 20th, 2012 at 12:35 PM ----------

We all need to be a bit careful here: Drawing parallels between the liability risk suffered when working in a profession for which professional liability insurance is available and required, and the liability risk suffered when recreationally diving as a part of a dive buddy team, is spurious (at best).

rx7diver

When you enter into the buddy relationship of a recreational dive, the paper and courts seem to show that you are agreeing to the duties of a buddy. If you do not perform them and something bad happens, you have opened yourself up to liability that could be very heard to defend.

I guess the whole point of these posts can be summed up like this. I and many people I know have dove with people who were assigned to be my buddy or join me and my buddy in name only. Many of us describe our relationship as just being on the same dive in the same ocean. I would say that this is often the relationship between insta buddies. Maybe I am wrong. I hope that the same ocean, same dive idea is shared among all participants. I know it is with people I dive with. The problem lies with the fact that if they dive, it is their family that sues.

If I do not fully accept the responsibilities and am assigned an instabuddy to join my group/dive. I will not accept, even if they assure me it is name only, because this does not exist. If it takes a 150 dollar solo card to ensure I can refuse them. That is money well spent. This will be a change in how I practice/have practiced in the past.

Am I the only person who has allowed a person to be a buddy in name (as stated by the assigned person) only assigned to their group on a boat because the boat policy is for everyone to have a buddy and they do not have one? Guess I am just a sucker and that is why they stuck them with us. I just did not understand the liability to such actions and how easy it is to avoid.

jimmy

---------- Post added April 20th, 2012 at 12:44 PM ----------

Check these threads on the topic for the benefit of Peter Guy's legal education and general clarity of thought:

http://www.scubaboard.com/forums/ba...es-being-dive-buddy-expose-you-liability.html

http://www.scubaboard.com/forums/basic-scuba-discussions/302427-how-accountable.html

Thanks for the post. I have/had read through those. I have been taught that regardless of right of wrong out outcome, do not make yourself an easy target. As peter guy said, people will always sue, nothing will stop that. If there is an easier target, they will go after that person.

You do not have to swim faster than a shark, just faster than the person next to you..........................

 

[RIteen]

I must say this is a very interesting topic....

I don't dive (yet) but I do know a little something about law (I have a good memory for things like that...)

The one who said chances of dismissal are great, is right. This is akin to going for a walk with a mate; your mate steps out in front of a Greyhound... Your buddy assumed the risk of going for that walk, it wasn't your job to hold his hand. Similar is this: By entering the water you assume the risk of drowning, being eaten, etc. Your mate carries an octo, so he can provide assistance if required, however it isn't his responsibility to check your gauges and whatnot.

The possible liability comes in the form of negligence: If your friend got your attention, indicating an OOA situation, yet you instead gave him the finger instead of your octo, then you would be up the creek... The only exception to this I can see, is if you were both in trouble: If your friend was OOA, and you had maybe 200psi of air remaining, yet still had to ascend from 20m. In such a case the court would likely find in favour of you, because basic 1st Aid tells you that one should never compromise their own safety for the safety of another.
--Being a Recreational Diver, you do not have the same duty of care as an instructor or a Divemaster, and therefore are not held to the same liability as one. If an instructor takes you down, and drowns you, THEN he is liable!

HOWEVER: If you do go on a commercial dive, and agree to an insta-buddy, yet then go off on your own, THEN you are royally screwed. Because that is gross negligence. By agreeing to such, you did place upon yourself a small duty of care to such an individual.

The duty of care in these situations is directly influenced by one's degree of certification. For example, If you and a Dive master go down, then he should have a handle on how you are doing. IF you panic, then he should know how to deal with such a situation. However, if two newbies go down, and newbie #2 panics, then such a duty of care does not befall newbie #1, as he has not been taught proper procedures for handling such a situation. As a matter of fact, it is probably extremely dangerous for him to try anything, as it may not only worsen the situation, but it could result in a double fatality, as opposed to a single.

Think of it like Skydiving. Both are extreme sports; Both sports have you doing things that are not natural! If your chute doesn't open, or if you panic and fail to pull the cord, your family could try and sue those who went with you. However they would be laughed out of the court room, because you ASSUMED THE RISKS. (Granted if your chute didn't open, they might have some luck with the packer...)

Again, I am no law student, but I am rather just going from my memory on such.

 

[jimmy71]

I must say this is a very interesting topic....

I don't dive (yet) but I do know a little something about law (I have a good memory for things like that...)

The one who said chances of dismissal are great, is right. This is akin to going for a walk with a mate; your mate steps out in front of a Greyhound... Your buddy assumed the risk of going for that walk, it wasn't your job to hold his hand. Similar is this: By entering the water you assume the risk of drowning, being eaten, etc. Your mate carries an octo, so he can provide assistance if required, however it isn't his responsibility to check your gauges and whatnot.

The possible liability comes in the form of negligence: If your friend got your attention, indicating an OOA situation, yet you instead gave him the finger instead of your octo, then you would be up the creek... The only exception to this I can see, is if you were both in trouble: If your friend was OOA, and you had maybe 200psi of air remaining, yet still had to ascend from 20m. In such a case the court would likely find in favour of you, because basic 1st Aid tells you that one should never compromise their own safety for the safety of another.
--Being a Recreational Diver, you do not have the same duty of care as an instructor or a Divemaster, and therefore are not held to the same liability as one. If an instructor takes you down, and drowns you, THEN he is liable!

HOWEVER: If you do go on a commercial dive, and agree to an insta-buddy, yet then go off on your own, THEN you are royally screwed. Because that is gross negligence. By agreeing to such, you did place upon yourself a small duty of care to such an individual.

The duty of care in these situations is directly influenced by one's degree of certification. For example, If you and a Dive master go down, then he should have a handle on how you are doing. IF you panic, then he should know how to deal with such a situation. However, if two newbies go down, and newbie #2 panics, then such a duty of care does not befall newbie #1, as he has not been taught proper procedures for handling such a situation. As a matter of fact, it is probably extremely dangerous for him to try anything, as it may not only worsen the situation, but it could result in a double fatality, as opposed to a single.

Again, I am no law student, but I am rather just going from my memory on such.

There are multiple responsibilities that a buddy assume when they are to be your buddy. Including check each others equipment, Helping in an entanglement, to not leave the immediate proximity of your buddy and provide redundancy to some systems among others. The paper I initially posted show the court cases associated with the obligation of a dive buddy.

The walk analogy does not fly and is very different than diving. It just does not work. You are agreeing to the duties of a buddy when you accept that title. It is not just a term, it is a taught concept with responsibility. When you do not perform those responsibilities, you can easily be found liable as the paper shows. Yes they are also found partly liable but they are dead and can/do not pay. I still do not want to pay 50% of a million dollar liability.

about your last point. ANY level of certified diver should be able to function in the capacity and duty required as a buddy.

"--Being a Recreational Diver, you do not have the same duty of care as an instructor or a Divemaster, and therefore are not held to the same liability as one. If an instructor takes you down, and drowns you, THEN he is liable!"
It is funny, when you are a DM or instructor, you have people who dive with you in a professional context sign a waiver. It does not absolve you of all liability, but it helps.

The cases in the paper are very interesting and surprising.