Legal liability of dive buddy
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ItsBruce
Contributor
Sorry for coming to the party so late. I've missed a lot of opportunities to dance/comment and it is now too late to address certain points. However:
1. There is probably some real good reason that the agencies started off by teaching the buddy system and for continuing to do so. It may be that in the old days equipment was unreliable. Has that changed? For the number of divers who talk about carrying pony tanks, I'd guess that they don't think their equipment is reliable. Or, perhaps they don't trust their gas management skills. I'm going to guess that the implementation of the buddy system was in recognition of the safety margin it provided.
2. A buddy is like a piece of gear. If you forget to bring it on a dive, you may be able to borrow it from someone else. If that is the case, you must either overlook shortcomings in that piece of gear or sit out the dive.
3. I, like many others, enjoy having a companion on most of my dives. Yes, there are times that I like solitude, but I also like companionship. A buddy, even if an insta-buddy, provides that.
4. I have not yet read the article cited. However, my legal background gives me some insight on liability. A buddy is not a guarantor or insurer of the safety of the other buddy. Doctrines such as primary assumption of the risk will likely completely eliminate a buddy's duty of care relative to risks that are inherent in the activity, in appropriate jurisdictions. And, if there is no duty of care, there can be no liability for negligence. However, leaving defenses aside, a buddy's basic duty is to use reasonable care. Yet, from the posts I've read, it looks like many divers on this thread expressly decline not to use reasonable, or any, care. Just saying, "we are buddies in name only" or "we are just same-ocean divers" is an expression that one is going to exercise no care.
5. For those who are so fearful of being sued as a result of a dive accident, you might be better off with some other activity, perhaps chess. Or at least don't dive from a boat with other people.
6. Don't knock Australia over Watson serving time for being a bad buddy. He pled guilty to the charge and it looks to me like the judge had to take a position that facilitated that plea.
7. For non-professionals, in the event of a lawsuit, the liability coverage of most homeowners or renters insurance policies will likely cover it.
1. There is probably some real good reason that the agencies started off by teaching the buddy system and for continuing to do so. It may be that in the old days equipment was unreliable. Has that changed? For the number of divers who talk about carrying pony tanks, I'd guess that they don't think their equipment is reliable. Or, perhaps they don't trust their gas management skills. I'm going to guess that the implementation of the buddy system was in recognition of the safety margin it provided.
2. A buddy is like a piece of gear. If you forget to bring it on a dive, you may be able to borrow it from someone else. If that is the case, you must either overlook shortcomings in that piece of gear or sit out the dive.
3. I, like many others, enjoy having a companion on most of my dives. Yes, there are times that I like solitude, but I also like companionship. A buddy, even if an insta-buddy, provides that.
4. I have not yet read the article cited. However, my legal background gives me some insight on liability. A buddy is not a guarantor or insurer of the safety of the other buddy. Doctrines such as primary assumption of the risk will likely completely eliminate a buddy's duty of care relative to risks that are inherent in the activity, in appropriate jurisdictions. And, if there is no duty of care, there can be no liability for negligence. However, leaving defenses aside, a buddy's basic duty is to use reasonable care. Yet, from the posts I've read, it looks like many divers on this thread expressly decline not to use reasonable, or any, care. Just saying, "we are buddies in name only" or "we are just same-ocean divers" is an expression that one is going to exercise no care.
5. For those who are so fearful of being sued as a result of a dive accident, you might be better off with some other activity, perhaps chess. Or at least don't dive from a boat with other people.
6. Don't knock Australia over Watson serving time for being a bad buddy. He pled guilty to the charge and it looks to me like the judge had to take a position that facilitated that plea.
7. For non-professionals, in the event of a lawsuit, the liability coverage of most homeowners or renters insurance policies will likely cover it.
RIteen
Contributor
^Chess... you never know, those Rooks are mighty dangerous, they frequently maim unsuspecting players....
ItsBruce,
I was told a long time ago that YMCA, one of the first national agencies to provide scuba certification, borrowed the idea of the buddy system directly from its "Never Swim Without a Buddy" program (or whatever it was officially called)--not because of any explicit proof that the buddy system increased scuba safety.
I think the LA County scuba certification program is older, and I would like to learn what the old-timers here who were affiliated with that program in its early days recall about its adoption of the buddy system.
rx7diver
I would not say that they dont trust their skills. I have seen on at least 3 occasions the oring blow out at depth. I have seen divers swimming along and all the sudden look like a volcano on their back where its leaking gas. A pony would be nice if this happend at a significant depth with only say 1000 lbs left when they blew.
I have also heard once where there was a lady who had her gear serviced by an LDS and they did not have the correct parts so they "Improvised" and put parts not designed for the set up she had in it and it caused the 1st stage to lock up completely. No alternate no air gauge no nothing.
Do I solo? Of course but I am wise enough to plan the dive around the what ifs and if its 1 in a million it could happen Id hate to be the 1.
t4e
Contributor
a moral obligation to your buddy? absolutely
legal liability? absolutely not
legal liability? absolutely not
OP
jimmy71
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WOW, those are fighting words and way off with regards to the equipment. Having an octo is far from having redundancy. I assume that all of my scuba equipment can fail at the "worst possible time." I also have little faith in the buddy system to provide back up air in an emergency. The simple answer is a pony or doubles/multiple tank system.
---------- Post added April 23rd, 2012 at 10:42 PM ----------
The US court system disagrees with your assessment of legal liability.
ItsBruce
Contributor
I read the article that started this thread. I'm impressed with how the author used the various court cases to support his points. I am not impressed with the validity of those points.
The author cites things that certain courts said in certain published cases. However, there is a difference between the actual holding of a case and a background comment. For example, if the issue is whether a liability waiver is valid, the court's comment about a buddy having a duty of care or of breaching that duty is not worth very much to another court.
Moreover, rulings by some courts are not as strong a precedent as rulings by other courts. A ruling by a trial court is not as strong as a ruling by an appellate court. In fact, a trial court ruling is not binding on another trial court. It may help the judge in another trial court or even an appellate court formulate his or her own analysis, but it is not binding.
Likewise, the ruling of a federal court in a given state is not binding on the state courts of that state. Further, rulings of courts from one state are not binding on the courts of another state. Again, the reasoning may provide guidance, but it is not precedent.
The main thing I got from the article, which is consistent with what I expected, is that a diver is likely to get sued when he or she is supposed to be a buddy and does not act like one, i.e. does not have a joint dive plan, disregards a pre-dive safety check, or goes off on his or her own dive.
I also note that winning a buddy versus buddy case is going to be tough for the plaintiff. Absent abandonment, primary assumption of the risk is a very formidable defense, especially in California. While being abandoned by a buddy is not an inherent part of diving, becoming separated is. So, too, are any number of other ways of being injured or of dying. The number of deaths in which all equipment is working properly and the diver has adequate air, proves this.
Apart form the primary assumption of the risk defense, there is going to be a significant problem with proving that the defendant buddy's acts or omissions were the proximate cause of the injury or death.
It is unlikely that any of the really good attorneys would take a buddy versus buddy case as there are many better, easier cases out there. The attorneys who would take such a case probably don't have the skill to win one.
BTW: The article is all wet regarding insurance.
The author cites things that certain courts said in certain published cases. However, there is a difference between the actual holding of a case and a background comment. For example, if the issue is whether a liability waiver is valid, the court's comment about a buddy having a duty of care or of breaching that duty is not worth very much to another court.
Moreover, rulings by some courts are not as strong a precedent as rulings by other courts. A ruling by a trial court is not as strong as a ruling by an appellate court. In fact, a trial court ruling is not binding on another trial court. It may help the judge in another trial court or even an appellate court formulate his or her own analysis, but it is not binding.
Likewise, the ruling of a federal court in a given state is not binding on the state courts of that state. Further, rulings of courts from one state are not binding on the courts of another state. Again, the reasoning may provide guidance, but it is not precedent.
The main thing I got from the article, which is consistent with what I expected, is that a diver is likely to get sued when he or she is supposed to be a buddy and does not act like one, i.e. does not have a joint dive plan, disregards a pre-dive safety check, or goes off on his or her own dive.
I also note that winning a buddy versus buddy case is going to be tough for the plaintiff. Absent abandonment, primary assumption of the risk is a very formidable defense, especially in California. While being abandoned by a buddy is not an inherent part of diving, becoming separated is. So, too, are any number of other ways of being injured or of dying. The number of deaths in which all equipment is working properly and the diver has adequate air, proves this.
Apart form the primary assumption of the risk defense, there is going to be a significant problem with proving that the defendant buddy's acts or omissions were the proximate cause of the injury or death.
It is unlikely that any of the really good attorneys would take a buddy versus buddy case as there are many better, easier cases out there. The attorneys who would take such a case probably don't have the skill to win one.
BTW: The article is all wet regarding insurance.
OP
jimmy71
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The paper/posts did a good job of making me realize the unnecessary and easily avoidable liability of the often practiced "buddy in name only" or "same dive, same ocean" mentality. Turns out it that not having lawsuits brought against you costs nothing and I have won every legal case that has NOT been filed against me. For 150 bucks I can get a solo card that boats may or may not accept and I will not accept an insta buddy to be added to my group. Simple solutions to a complex problem. The only guaranteed way to win a lawsuit is not to get sued.
That is really the end of the debate as I have not seem anyone disagree with this. If the system or laws need to be changed is way beyond my understanding or the ability of this board. Being educated the to the risks and responsibilities of your actions is exactly what this board does do!
That is really the end of the debate as I have not seem anyone disagree with this. If the system or laws need to be changed is way beyond my understanding or the ability of this board. Being educated the to the risks and responsibilities of your actions is exactly what this board does do!
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