Liability with buddies

[Cacia]

aranoid: :book2: thanks.


so, do you all think this statement is reasonable? Am I close? Because where the rubber meets the road, I have to destill the concepts you have articulately described and actually apply it.

I would advise you to do the course if you are inclined. Then, as long as you do not "work" as a DM, I think your exposure is minimal. Once you are a DM, my advice is not to buddy randomly, it is just too dangerous. IF you are not a DM, insta-buddy is probably not too risky financially. Yes, I am a single parent and I just don't want to be on the hook, especially when I am asking for/ getting nothing in return.
__________________

Not looking for binding legal "legal advice"....but how about a sign? thumbs up or down.

or wink once for yes.

 

[minnesota01r6]

AOR and OOD are not complete defenses to negligence.

I believe you are wrong on this point - AOR for sure shifts the duty from defendant to plaintiff, and acts as a complete bar to recovery. While courts have narrowed what they consider AOR, they still construe properly worded AOR acknowledgements as barring recovery for scuba incidents in most jurisdictions (Hawaii being the most notable exception).

EDIT: I am talking about primary AOR here, not sure if you are or not.

Catherine - As long as you are certified as a DM but not "working" as a DM, you only have a duty to act as a reasonably prudent diver trained to your ability. If you choose to be trained to a higher level, you will be expected to respond to an emergency in the same manner as other people of your training level. The increased exposure to liability would be minimal in most cases.

I know everyone thinks lawyers are bloodsucking a-holes, but I would seriously recommend you consult a lawyer in the jurisdiction you will be diving in, in order to get the best advice possible.

JR (an aspiring bloodsucking lawyer)

 

[Storm]

I know everyone thinks lawyers are bloodsucking a-holes

HEY THERE, You just watch how go about insulting bloodsucking a-holes, even they have the right not to be called a lawyer!

Okay enought bad lawyer jokes...I just couldn't resist.

Thanks for all the advice it's been educational

 

[UGA]

I believe you are wrong on this point - AOR for sure shifts the duty from defendant to plaintiff, and acts as a complete bar to recovery. While courts have narrowed what they consider AOR, they still construe properly worded AOR acknowledgements as barring recovery for scuba incidents in most jurisdictions (Hawaii being the most notable exception).

Ha ha... I would bet you that fewer than 99% of attorneys know the difference between primary and secondary assumption of risk, and also that unless you're in a jurisdiction that has made a big distinction of it (and I'm not familiar with one that has) you'll probably never deal with it past first year torts.

By the way, at least based on Georgia law, you're correct; AOR is a complete defense.

 

[agilis]

How does assumption of risk work when a diver dies and the surviving spouse/children sue the divemaster? Something like this happened here in NJ not long ago. The deceased diver had signed all sorts of waivers including full assumption of risk. He was, btw, a lawyer. He drowned during a check-out dive in a quarry, and his survivors have bankrupted the small dive shop with just the initial legal costs.

I do get a little worked up on this topic because NJ is one of the worst states when it comes to legal abuses. Appeal courts here frequently reinstate cases that were initially dismissed for things like failure to state a claim, missing a filing deadline by more than a year, etc. I've never been victimized, but I know several unfortunates who have. My lawyer, a close friend since I taught a class he was enrolled in as an undergraduate 25 years ago, and an occasional dive companion, tells me there is no such thing as immunity from liability, except for statutory exemptions, as in the case of certain government organizations Even that kind of thing can be reversed, and the statute held to be invalid or unconstitutional.

Here in NJ we have a penalty for filing "frivolous" lawsuits, including paying the defendant's legal costs. This provision is invoked so infrequently that it is difficult to find examples. Years may pass, and not a single dismissed suit results in any penalties. Wealthy persons and powerful corporations know they can financially destroy someone by filing a continuous series of tort claims. Their lawyers are good enough to do so in a manner that avoids seeming too specious. Judges here are extremely reluctant to assess penalties, even in these flimsy, contrived situations. Doing so, they say, might have a "chilling effect" on persons with legitimate grievances, and discourage them from seeking damages.

I still say the whole thing stinks, and that those lawyers who use the system to seek riches through legal theft are loathsome vampires, and a blight on our society. I do not include all, or even most, lawyers in that category.
I vastly prefer the British system, where if you do sue and lose, you pay the other guy's costs. This does indeed make people think twice before pulling the trigger.

 

[H2Andy]

I believe you are wrong on this point - AOR for sure shifts the duty from defendant to plaintiff, and acts as a complete bar to recovery.

this is why it doesn't work like that in the real world (yes, we're talking primary now,
not secondary):

1. AOR as a complete bar only applies to inherently dangerous activities (check)

and

2. The specific risk causing the injury must have been known to and appreciated by the plaintiff in order for primary assumption of risk to apply.


and number 2 is where primaary AOR gets killed every single time by a competent lawyer. in today's jurisprudence, there just isn't such a thing as primary
AOR anymore, in practical terms (or, at the very least, it's extremely, extremely,
extremely rare).

(btw, in Florida, primary AOR has been scrapped and has been merged
with comparative negligence, except for the specific cases mentioned
by the opinion: Blackburn v. Dorta 348 So.2d 287 (Fla. 1977))

as to waivers:

better have them than not. there's new case law in NJ that a waiver can't keep
third parties (your dependents) from suing, but that's just a NJ case. cases
have been won on the basis of these waivers pretty much everywhere else.

The waiver actually moots AOR. Yes, I know that the AOR language is in there,
but it's ultimately unnecessary. You can waive negligence in a waiver and
never mention AOR and be ok. in fact, if i had to use AOR or waiver as
a defense, i'd pick waiver every single time.

How does assumption of risk work when a diver dies and the surviving spouse/children sue the divemaster?

yeah, this happened not too long ago. basically, the court said that the diver
couldn't waive the rights of other people (his wife and children), and
they still had the right to sue. the AOR defense would not apply as to the
wife and children since they didn't accept any risk at all.

if this catches on in other jurisdcitions, it could be the end of the waiver's
usefulness. Of course, you could send the diver home with a waiver for
the wife/husband and children to sign ....

ok as to the wife/husband, but can you waive the minor's right to sue? oy vey...

 

[Charlie59]

All of this is well and good except for the fact that it has to be as rare as hen's teeth to find a case where a dive buddy was sued for an accident while diving. There are only about 90 deaths worldwide reported and most of the time the dive buddy had little to nothing to do with it (except in the case where the husband is thought to have killed his dive buddy wife).

My point would be that while theoretically this is interesting it seems to have little basis in the "real world". Similarly, I doubt that a DM diving for fun is likely to be sued in this scenario.

If there are alot or even one case where this has been a problem I would like to know.

 

[H2Andy]

yeah, i said that quite a few posts back (post 11, as a matter of fact)

buddies are not often sued because they don't have a penny to their name.

as they say in the business, you can't get blood from a stone

however, if you have assets that a PI lawyer can go after, you are at risk

 

[Charlie59]

At risk, but probably more at risk if you drive a car, own a parking lot, have people work on your home, or even play softball in a league than for being a dive buddy.

Like I said way back, its the one you don't expect that will get you.

 

[H2Andy]

certainly driving a car is the big risk there, still, it does no good to cover
yourself for 99 risks and leave that 1 open that will get you in the end,
remote as the possibilty may be