New level of insta-buddy trouble

[MXGratefulDiver]

Well, I see we've strayed far afield from the original topic ... so to try to bring the discussion back to its original intent, I have some questions for those of you who feel that the Tancredi case represented a frivolous lawsuit ...

Do you think that it should be OK for a DM to lead an inexperienced OW diver on a dive exceeding recreational depths, take him into deco (by plan), and refuse to provide assistance when he runs out of air?

Do you believe that a dive professional who makes such decisions should not be held liable for those decisions, based on the fact that the injured (or in this case, dead) diver should have taken total responsibility for their own dive?

Do you believe that in this case, the actions of the DM were not a mitigating factor in this diver's death?

Because that's what the Tancredi case was really all about.

My own take is that if you are not willing to provide a reasonable level of service in terms of dive planning and execution to your clients ... and take some measure of responsibility for the safety of your clients through appropriate planning and execution .of the dive ... AND THAT INCLUDES MAKING SURE THAT YOU DO NOT, YOURSELF, RUN OUT OF GAS AT DEPTH AND HAVE TO RELY ON ONE OF YOUR CLIENTS TO ASSIST YOU TO THE SURFACE ... then you should not be working as a dive professional.

What it means to be a DM, or higher level of dive professional, is that you are held to a higher standard of responsibility than the non-professional diver will be. By virtue of your training and authority, you have a higher level of liability to conduct yourself responsibly. If accepting that liability makes you uncomfortable, then you should not choose to become, or to remain, a dive professional.

In an earlier reply to this thread I described the four requirements to prove negligence ... in reality it's a pretty high bar, and difficult to prove (despite the hyperbole and references to unrelated cases being discussed here). Based on those criteria, and the facts of the Tancredi case, it should be clear to anyone who is not predisposed otherwise that the DM and charter operation in this case were negligent in allowing this person to participate in a dive where they knew, in advance, they would be exceeding the diver's training and experience level. Yes, the diver shared responsibility in accepting those terms and conditions ... but that doesn't exonerate the person who planned and hosted this dive.

It's too easy for an inexperienced client to accept a DM's judgment that "you'll do fine" and try, based on that judgment, a dive they have no business doing. I've seen it happen ... and I'll bet a lot of you have too.

In any case, safety ... and not profit ... should be the overriding consideration on a dive charter. Those who do not follow that credo should not be in the business, and deserve to be sued if their irresponsible actions cause harm to a client.

I see nothing frivolous in saying so ... nor do I believe this was a frivolous case. The actions of the DM, and the fact that the dive charter even allowed this person to come on this dive, were clearly acts of negligence.

... Bob (Grateful Diver)

 

[Storm]

Well, I see we've strayed far afield from the original topic ... so to try to bring the discussion back to its original intent, I have some questions for those of you who feel that the Tancredi case represented a frivolous lawsuit ...

Do you think that it should be OK for a DM to lead an inexperienced OW diver on a dive exceeding recreational depths, take him into deco (by plan), and refuse to provide assistance when he runs out of air?

Do you believe that a dive professional who makes such decisions should not be held liable for those decisions, based on the fact that the injured (or in this case, dead) diver should have taken total responsibility for their own dive?

Do you believe that in this case, the actions of the DM were not a mitigating factor in this diver's death?

Because that's what the Tancredi case was really all about.

My own take is that if you are not willing to provide a reasonable level of service in terms of dive planning and execution to your clients ... and take some measure of responsibility for the safety of your clients through appropriate planning and execution .of the dive ... AND THAT INCLUDES MAKING SURE THAT YOU DO NOT, YOURSELF, RUN OUT OF GAS AT DEPTH AND HAVE TO RELY ON ONE OF YOUR CLIENTS TO ASSIST YOU TO THE SURFACE ... then you should not be working as a dive professional.

What it means to be a DM, or higher level of dive professional, is that you are held to a higher standard of responsibility than the non-professional diver will be. By virtue of your training and authority, you have a higher level of liability to conduct yourself responsibly. If accepting that liability makes you uncomfortable, then you should not choose to become, or to remain, a dive professional.

In an earlier reply to this thread I described the four requirements to prove negligence ... in reality it's a pretty high bar, and difficult to prove (despite the hyperbole and references to unrelated cases being discussed here). Based on those criteria, and the facts of the Tancredi case, it should be clear to anyone who is not predisposed otherwise that the DM and charter operation in this case were negligent in allowing this person to participate in a dive where they knew, in advance, they would be exceeding the diver's training and experience level. Yes, the diver shared responsibility in accepting those terms and conditions ... but that doesn't exonerate the person who planned and executed this dive.

It's too easy for an inexperienced client to accept a DM's judgment that "you'll do fine" and try, based on that judgment, a dive they have no business doing. I've seen it happen ... and I'll bet a lot of you have too.

In any case, safety ... and not profit ... should be the overriding consideration on a dive charter. Those who do not follow that credo should not be in the business, and deserve to be sued if their irresponsible actions cause harm to a client.

I see nothing frivolous in saying so ...

... Bob (Grateful Diver)

I apologize for getting off topic, so getting back to the topic at hand...

Is the Tancredi frivolous, In my opinion no. Should there be some sort of shared culpability, In my opinion yes. It is all well and good to say the DM and boat operator broke just about every safety rule in the book during this dive, and that the DM took an inexperienced diver into a very dangerous "trust me" dive, but that still does not negate the diver’s responsibility for his actions, or in this case inaction. He should have thumbed the dive.

I’m not speaking from the abstract here. I have personally been the inexperienced diver taken on a trust me dive that ended up going OOA at 95 feet. It took a few months of post dive evaluation before I came to realize that the dive professionals did in fact open the door to a dangerous situation, but I stepped through on my own, I was not pushed.

So in my opinion, unless the dive professionals forced the diver to dive, which I have never heard of, the decision still ultimately lies with the diver. If they are not certain of the dive plan, they should snub it.

Should the dive professional be held accountable, I believe so. But that case is a bit on the extreme side, with multiple points where the dive professionals acted negligently. In the case of the dive buddy being held accountable for the death of a diver, well that’s a horse of a different color.

A dive buddy is not necessarily a dive professional and is not acting in that capacity. The rescue and first response traning we take tell us not to place ourselves in the position of being a second victum. So in orderto prove dive buddy neglence would have to take a whole lot of speculation into acount and that is not the way courts work.

 

[Web Monkey]

Is the Tancredi frivolous, In my opinion no. Should there be some sort of shared culpability, In my opinion yes. It is all well and good to say the DM and boat operator broke just about every safety rule in the book during this dive, and that the DM took an inexperienced diver into a very dangerous "trust me" dive, but that still does not negate the diver’s responsibility for his actions, or in this case inaction. He should have thumbed the dive.

There's a difference.

"Trust me" at 95' has the potential for problems.

"Trust me" at 145' for 20 minutes is a guarantee of problems, since it's well into required-deco land, which means rec divers aren't qualified to even be there, since they don't have the training to execute the dive, or the equipment (gas) to do the deco.

Terry

 

[Walter]

Sorry, but I don't agree with you.

In theory ... yes, you are correct. But in practice, with the popularity of the week-end OW classes, new divers don't typically learn enough to make responsible decisions ... they are taught just enough to not drown while they follow a DM around and trust that he or she will take them where they are supposed to go ... including the surface ... when it is time to do so.

People pay a lot of money for these charters. They are assured by DM's, boat captains, and LDS employees that these dives are perfectly safe ... and they trust that those people know more than they do, so it must be OK.

That's the reality.

That's not an argument that the charter was responsible for the death, but rather the responsibility lies with the agency though which he holds an OW card for not having higher standards or with the instructor for not teaching to those higher standards if they do have them.

 

[MXGratefulDiver]

I agree on all counts ... but here is where (I believe) this discussion got off track ...

Should the dive professional be held accountable, I believe so. But that case is a bit on the extreme side, with multiple points where the dive professionals acted negligently. In the case of the dive buddy being held accountable for the death of a diver, well that’s a horse of a different color.

A dive buddy is not necessarily a dive professional and is not acting in that capacity. The rescue and first response traning we take tell us not to place ourselves in the position of being a second victum. So in orderto prove dive buddy neglence would have to take a whole lot of speculation into acount and that is not the way courts work.

At no point did the judge in this case say ... or even suggest ... that a dive buddy should be held accountable for the death of the diver. Here's what he said ...

“The evidence indicated that it is a breach of the standard of care in the recreational dive industry for a dive charter company to conduct a dive without assigning ‘buddy’ teams. A ‘buddy’ assumes the responsibility for monitoring and assisting the other member of the ‘buddy’ team at all times during a dive. The court finds that it is probable that an assigned ‘buddy’ would have assisted Tancredi by giving Tancredi additional air when he first indicated breathing difficulty and would have helped Tancredi to the surface at a time when his life could have been saved.”

Now, to my way of reading this, the judge is indicating that a failure to assign a dive buddy ... IN THIS CASE ... indicated a breach of "industry standards" on the part of the dive charter. That is, in fact, the case, given that all agencies teach buddy diving.

Saying that ... "A buddy assumes the responsibility for monitoring and assisting the 'buddy' team at all times during a dive" ... does not mandate liability on the buddy's part ... but rather affirms the standards of buddy diving as taught by virtually every agency. In effect, they are saying that the dive charter did not afford this diver the opportunity to dive within the limitations of his training.

In fact, that training also puts some limits on a dive buddy's responsibilities ... which do not include liability as long as the buddy acts within the standards of his or her own training. In other words, the only time liability would be a factor is when negligence could be proven as defined by the four conditions I described earlier.

This is all covered in a basic Rescue class ... which I assume many (if not most) of the people involved in this conversation have taken ... which is in part why I'm a bit surprised by the tone of some of the comments.

In a nutshell ... the greater your training, the more your risk of liability. Normal, recreationally-trained divers have no duty of care to their dive buddy or anyone else from a legal standpoint ... until or unless you take action to render assistance, at which point your standard of liability is what a judge determines a "reasonable and prudent" person at your level of training would be expected to do.

The complaints about our legal system are real ... anyone can be sued at any time for any reason ... but winning such a case takes a pretty high standard of proof of negligence. Unfortunately, even if you are exonerated, the costs of defending yourself can be catastrophic ... which is why dive professionals are required to carry such high liability limits on their insurance policies.

However, I think that's a topic for it's own thread ...

... Bob (Grateful Diver)

 

[TimAZ]

Most divemasters and instructors (that I know anyway) don't do it as a primary source of income, but because they enjoy doing it. Increased exposure to liability and/or increased insurance rates would drive them away from sharing the sport, harming both they and their potential students.

That said, while this post demonstrates the importance that o/w divers who intend to be active in the sport take the advanced (and preferrably stress/rescue) early on, isn't it a disservice to someone with less than 20 dives for the agency to label them "advanced?" (I admit I'm pulling a little off topic"

 

[Cacia]

(Bob)yes, I agree and that is why I am not going to do it anymore. I don't think the off topic stuff was off topic because the sentiments are relevant inless you operate in a vacume. My only point for all you proponents of excellence is you are not going to find this level of dive guide in a place where the mean house is 650,000 dollars. Now you want to add financial liabilty? Many of our DM's can't afford cars. I just don't think it is realistic to add all this to someone making seven dollars an hour. In utopia, it sounds very nice.

 

[ItsBruce]

I do not think anyone would contest that the DM in the Tancredi case was negligent in a whole host of ways. Nor do I think anyone would contest that Tancredi was also negligent in failing to follow what he presumably learned in OW, namely safe depth limits, determining your own no-deco limits, etc. Nor do I think anyone would contest that what some have called "drive-by certifications" really don't teach people enough to safely dive on their own.

Arguing liability or negligence is not really the point of this thread.

The point is that the language used by the court could be considered to open the door for dive buddy liability. It may well be that by agreeing to be someone's buddy, you assume a duty of care toward that person. I render no opinion on that. And regardless of a duty or not, *I* will always be the kind of buddy that someone else would want for a buddy.

Bob is right that the court in the Tancredi case did not hold that a buddy has a duty or that the buddy could be held liable. In fact, there is quite a bit of language that could protect either a buddy or DM from liability in a "normal" dive. My only point is that there was langauge that one might use in an effort to impose liability on a buddy.

As I think I said before, possible liability to a buddy is just another risk that must be factored into a dive plan and managed. Perhaps dive operators will change their liability waivers to also protect dive buddies. (BTW: Preliminary research suggests that a good waiver will work in all but the most egregious situations. More on that later.

I don't mean to deter anyone from doing that which they enjoy. I simply want that they have some idea of where they stand when they do.

 

[Darnold9999]

... Normal, recreationally-trained divers have no duty of care to their dive buddy or anyone else from a legal standpoint ... until or unless you take action to render assistance, at which point your standard of liability is what a judge determines a "reasonable and prudent" person at your level of training would be expected to do.

Bob - as usual well said.

However, this one point is actually the issue that ItsBruce started this with, there in fact may be a "duty of care to [your] dive buddy" as an OW diver. Not as many think only if you "take action to render assistance". The mere acceptance of this role may be enough to take you out of the role of "passerby" and impose a duty to act within your training as a reasonable person.

Not necessarily a bad thing, but it is not what most dive professionals believe and teach, and it opens up a can of worms re what exactly is the "standard of care".

I am pretty sure that in the right case the courts will find that the "buddy diver" does have a duty of care and impose liability. The standard of care will likely be set very very low however.

It will be a case where the buddy diver did not do something that would have obviously saved their partner at no risk to themselves for example refusing to share air and swimming away (and there being someone close enough to witness it and far enough away to not be able to render assistance). Pretty rare IMHO

 

[Cacia]

Bruce, I am really thankful and "got it" the first time I read it. It is very useful information. Unfortunately, here in Hawaii, we have very weak liabilty release laws from what PADI legal told me.