Liability with buddies

[spacemanspiff1974]

Rasmussen v. Bendotti...

The divers were married to each other. Because they were married, there can be a legal duty. This is not the same as two strangers or friends being paired up for a dive.

 

[H2Andy]

please cite from the opinion where their marital status has anything to do with
the ruling. don't worry, you won't be able to find it, because it's not there.

that's simply irrelevant to the decision.

let me state this again, because it is important:

the fact that they were married was not at issue. what was at issue is
whether one owed the other a duty as a dive buddy.

the court found that yes, they owed each other such a duty as dive
buddies. their marital status is irrelevant.

read the entire case.

here are the conclusions that the appeals court upheld:

• "[A] scuba diver owes a duty to his buddy...." Conclusion of Law 2, CP at 562.

• "Because Gene and Bonny were dive buddies on November 2, 1996, Gene owed a duty to Bonny to act in the manner of a reasonably prudent diver." Conclusion of Law 3, CP at 562.

the decision has everything to do with the fact that they were dive buddies,
and nothing to do with their marital status.

 

[cowboyneal]

OK, I read the case, and they do state the duty existed, but did not find proximate cause so the plaintiff did not recover. The statement at best is dicta, because there aren't any facts to attach to the statement. The court also states that your own emergency could suspend the duty. Finally, it still leaves open the question of "what a reasonable buddy does." Not having other fact situations, it's hard to see how that all might come out in another case, and Washington is hardly the hotbed of scuba diving activity such that the case would be relied on by let's say a court in Florida. Obviously, you have to act like a reasonably prudent person in any situation where negligence might result in injury - this is not limited to scuba diving - however, the extent of the duty and under what specific fact situations it applies is still open to question. It looks like these divers were out on their own, and not part of a group. As I also said, anyone will sue anyone for anything if they think they can make money. I'm going off to draft my buddy waiver....

 

[H2Andy]

i presented the case to support the statement "some courts have found that a buddy has a duty to act as a reasonable buddy under the circumstances."

when you are dealing with legal issues, you have to keep things narrow or it's
all meaningless.

remember, the issue of duty is an issue of law. it is determine by case law
and the judge. there is case law that supports a duty on the part of a
dive buddy above and beyond that which ordinary people owe each other.

all other issues as to negligence (breach, causation, and damages) are issues
of fact to be determined by the fact finder.

you can't mix apples and oranges.

 

[minnesota01r6]

cowboyneal Also, a California appellate court held in an unreported decision that a scuba buddy owes a duty of care.

The existence and scope of a defendant's duty of care is a legal question "which depends on the nature of the sport or activity in question and on the parties' general relationship to the activity, and is an issue to be decided by the court, rather than the jury.

Yace v. Dushane WL 22953762 (2003) QUOTING Knight v. Jewett 3 Cal.4th 296 (1992).

what a reasonable diver would do is a question for the jury - it goes to the "breach" element of negligence (if you acted reasonably, you didn't breach your duty). The jury doesn't need to decide what action a reasonable buddy should take in a given situation, it should decide if the buddy's actions in the present case were reasonable (i.e. there can be more than one "reasonable action" in every situation).

I agree that it is difficult to predict what a court would do with a different set of facts, but so far it's 2 decisions finding a buddy owes a duty and none that I've found to the contrary.

The best advice is: plan a dive thoroughly, do a buddy check, stay close to your buddy, monitor both people's air supply, and don't panic. (congratulations, you just satisfied MY definition of a reasonably prudent diver, but I'm not sure about the other 5 people on your jury)

 

[PenguinAdLitem]

When you dive with someone as their buddy, you _do_ create a legal relationship (albeit a slight one). It is the same relationship as exists between a rescuer and a victim - because you agree to be responsible for the other diver, even if only in a small way, you keep other people from assuming that obligation.

Anyhow, here is some contrary authority (looking at several cases and distinguishing each by finding that they do not find a special duty): Barrett v. Ambient Pressure Diving, Case no. 04-CV-03550 at 22, n.40 (E.D.Pa. 2006). The cases distinguished are Kuntz v. Windjammer "Barefoot" Cruises, Ltd., 573 F.Supp. 1277, 1282
(W.D.Pa. 1983) (finding a duty to setup buddies, but not finding a special duty between buddies); Lyon v. The Ranger III, 858 F.2d 22, 24-25 (1st Cir. 1988) (finding a duty to develop a reasonable and not "seriously flawed" dive plan, but not a special duty between buddies).

I throw those out to play devil's advocate. The fact is the general duty to behave reasonably exists, whether above water or below it. The fact that some courts have not found a special duty between dive buddies does not mean that there is no duty, it means that the duty of care is no different than the duty you might have to someone you meet for drinks, or any other casual relationship. If the person starts choking on their tongue, a reasonable person might be expected to call for help. If they die and you failed to call for help, you may be on the hook. Don't do that - behave reasonably. Also, get enough indemnification that your insuror feels highly motivated to defend you.

Incidentally, on the question of what is "reasonable" - who knows? By amazing coincidence, every jury ever seated in a negligence action has discovered that _they_ are reasonable people, so what they would do in the situation is definitionally what a reasonable person would do. They almost never come back answering, "we can't tell what a reasonble person would do here."

 

[minnesota01r6]

PenguinAdLitem - Barrett v. Ambient Pressure only talks about the inability of joining the dive buddies in the lawsuit for lack of personal jurisdiction by the New Hampshire courts. The court states "we find that even if the dive buddies are necessary, they are not indispensable." - they make no findings for or against a duty owed by the dive buddies

- Kuntz v. Windjammer 573 F.Supp. 1277 doesn't involve a buddy at all.
"We find that plaintiff has established by a preponderance of the evidence that the open water dive on April 14, 1978, was negligently conducted, wrongfully supervised, and deficiently handled by Tom Miller, in the following particulars: ... In failing to institute a partner system and in failing to assign a partner or buddy to the decedent"
Id. at 1282.

The court cannot find a duty between the decedent and a party that never existed. The nonexistent dive buddy could well have been negligent in this case if he did, in fact, exist.

Lyon v. The Ranger III 858 F.2d 22 - The buddies necessarily had a duty to the deceased, or they would not have been parties to the case (motion to dismiss or summary judgment would have saved a lot of legal fees on their behalf). The dive team (including decedent) was found 45% liable, and the court held "We see nothing in the law that forbids the district court from assessing Lyon's fault at 45 percent despite the similar fault of his colleagues." Id. at 25.

If the person starts choking on their tongue, a reasonable person might be expected to call for help. If they die and you failed to call for help, you may be on the hook.

I think this is incorrect. Look at Rest. 2d. Torts Section 314 and 314A - what special relationship exists between 2 people who meet for drinks?

 

[cowboyneal]

It's all insanity -- Buddy Waiver here I come! In fact, screw that, I don't want any buddy on my dive - I'm with the DM -

 

[minnesota01r6]

cowboyneal
There is a good article about all of this in the April 2001 issue of Scuba Diving Magazine called "Solo Certification: It's Time"

Here's a link:
http://www.scubadiving.com/training/specialty_and_advanced/solo_certification:_it's_time/

 

[Puffer Fish]

It's all insanity -- Buddy Waiver here I come! In fact, screw that, I don't want any buddy on my dive - I'm with the DM -

Double edged sword, Cowboy - you first have to decide if the "event" is going to happen to you or the "buddy" If it is you, then you want the richest person in the group, if it is the "Buddy", then go for the DM.

It would also help to be the poor one in the group.

I am surprized that the differences between states has not been covered. Not all use the % responsible concept that California does. I'm sure some of our legal guys would be nice enough to cover which states do and which do not and how that effect the potential liability. You may need different waivers for different states.