New level of insta-buddy trouble

[ItsBruce]

My original post was not to address the merits of how the dive operator planned the dive. It was clearly a blunder. My post was to alert people that there is something out there that could lead a court to say that you, as a buddy, have a duty to monitor and assist a buddy.

Here is why that is important: In the absence of a duty, there can be no liabiility, period. In the absence of a duty one does not get into questions as to the amount of care one exercised or as to whether the injury could have been prevented, etc.

As my article, if and when it is published, notes, “As a general rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative steps to assist or protect another unless there is some special relationship between them which gives rise to a duty to act.”

The Trancardii case could be read to say that as between buddies, even if "insta-buddies" there is a special relationship, and that it entails monitoring and assisting.

I am not suggesting that there are going to be a rash of lawsuits. However, once there is a duty, it opens the door. Thus, no matter how careful you are in monitoring or assisting a buddy, if your buddy is injured, he or she can at least get past the proverbial courthouse door. Again, I'm not particularly worried about my regular dive buddies. I'm not even particularly worried about their families. I am, however, worried about people I've never met and who are assigned as my buddy. And, I'm even more worried about their families.

I've gone on record as saying that I don't rely on my buddy and that I treat a buddy as a possible asset that I could use in the event I get in trouble, but that I act as if I am my buddy's keeper. (Since my regular buddy is my kid, that is certainly the case.) I will continue that way with all my buddies. However, when a court can be read as having held I have a specific duty to a buddy (whether accurate or not), I start to worry. I figure that it is better to know this going in than learning it later.

 

[Darnold9999]

Correct result - the charter company was negligent given the facts. So was the diver, but he has already paid the consequenses of that negligence.

Worrisome precedent, I assume not yet cited anywhere, but 12 years is not really that long - scuba accidents are reasonably rare so that another case with an appropriate fact situation may have not yet surfaced.

Re solo diving and a charter, would not surprise me to find that most charters would not let divers dive solo for exactly this reason. i.e. limit liability.

 

[The Horn]

I guess it is the way things are working today. I totally agree with you putting the dive company out of buisness or at the very least terminating the certification and banning those in a position of responsibility from diving. From the sounds of things others on the charter (the DM) were diving outside thier skill level.

I guess it is in my nature to assist people or err on the side of caution. People don't seem to realise how things can go for a ride in the fan fast. The diver who pointed Trancardi to the surface should have escorted him there. Although cutting his own dive short, ensuring the man's life was safe should have been a priority. I guess once again, this is thinking unselfishly....

To the weekend fast action drive by certification or the new divers who have this mental picture of being an underwater god deaths like this are bound to occur.

 

[Diver Dennis]

What happens if you do come to the aid of an "insta-buddy" and something bad happens for whatever reason and you are held liable for your actions in trying to help? Sort of like pulling someone from a burning motor vehicle accident only to be sued because your actions may have caused the victim to become paralyzed? Does the Good Samaritan Law cover U/W accidents?
Even if a lawsuit has no real merit but does "open the courtroom door", the time and expense could ruin you.

 

[MXGratefulDiver]

So Bob, you think more lawsuits will make the world a better place? Thats a load of you-know-what.

That's not at all what I'm saying ... I'm saying that charters have a responsibility to their clients to not put them in situations they are clearly not qualified to deal with. And if it takes lawsuits to prevent businesses from placing profits over safety, then so be it. Are you suggesting it's better to just let these guys take people out and kill themselves out of sheer ignorance?

We need divers who know how to dive before they get on the boat, not take the responsability off the people who issue the c-cards and onto the folks who are trying to provide a service.

Yeah ... we do need that. Do you see it happening anytime soon?

There's two worlds out there Dave ... the one we live in, and the one we should be living in. Which one do you think businesses should be selling their services to?

I doubt that this case revolved so much around the lack of a buddy as it did around the fact that this charter was negligent in taking this guy on board for a dive they knew (or should have) that he was unqualified to do.

I don't think the fact that the so-called "professional" on board also ran out of gas helped convince the judge that this was a responsible charter operation either. With that many mistakes occurring, it would be easy to convince me that these guys run an unsafe operation, and shouldn't be in the charter business.

... Bob (Grateful Diver)

 

[wedivebc]

Ok Bruce I think I understand what your saying but in Canada we have the good samaritan act which tells me if I act to assist someone and I do it to the best of my ability I am not liable for injuries caused during that act. I can also choose not to act if I feel I would be unable to provide effective assistance (ie. If I was not CPR trained) or if assisting them would put me in danger. I assumed buddy arrangement falls under the same guidelines Does not an assumption of risk waiver relieve the buddy of some duty of care to the diver?

Re solo diving and a charter, would not surprise me to find that most charters would not let divers dive solo for exactly this reason. i.e. limit liability.

Solo diving is a recognised form of the sport just like deep trimix and rebreather diving. If a solo diver is diving within the limits of their training and experience then the operator has no legitimate reason to prevent that. There is not greater liability than any other form of scuba diving.

 

[MXGratefulDiver]

What happens if you do come to the aid of an "insta-buddy" and something bad happens for whatever reason and you are held liable for your actions in trying to help? Sort of like pulling someone from a burning motor vehicle accident only to be sued because your actions may have caused the victim to become paralyzed? Does the Good Samaritan Law cover U/W accidents?
Even if a lawsuit has no real merit but does "open the courtroom door", the time and expense could ruin you.

I'm not sure about Canadian law, but in the USA the answer is simply this ... as a recreationally-trained diver, you have no duty whatsoever to come to the aid of anyone. But once you take an action to assist, you assume a duty to perform to the level of your training.

In the USA you can be sued by anyone, at any time, for any reason ... but in order to win on the grounds of negligence the plaintiff has to establish the following:

1. There existed a duty to act on the part of the defendant
2. That duty was not fulfilled
3. The circumstances that led to the breach were foreseeable
4. The breach of that duty was the cause of an actual injury to the victim

... Bob (Grateful Diver)

 

[MXGratefulDiver]

Re solo diving and a charter, would not surprise me to find that most charters would not let divers dive solo for exactly this reason. i.e. limit liability.

I don't really see that as the issue ... but this person did not come on board to solo dive. There was an expectation for a service that was not fulfilled. I think that's what the judgment involved in this particular case.

... Bob (Grateful Diver)

 

[Diver Dennis]

Thanks Bob. I know in Mexico and I'm sure a lot of other countries, an injured diver from another country would have a very difficult time even getting the authorities to look at anything but the most serious accident.

 

[ItsBruce]

I should probably have noted earlier, the diver who Trancardi approached to indicate low air had a buddy that she rightfully could not have abandoned. BTW: the profile called for decompression stops at 20 feet for three minutes and at 10 feet for eight minutes

I'm afraid to calculate the point at which the divers should have started their ascent. Lets see: Ascending at 30 feet per minute, that's 2.5 minutes to the surface with an average depth of 75 feet. Assuming an SAC of 1.0, that is around 8.75 cu ft of air. 20 feet for 3 minutes is around another 4.5 cu ft of air. 10 feet for 8 minutes is another 13 cu ft of air. That's around 26 cu ft just to reach the surface. And that does not take into account air for a buddy. Soo, on that dive, good gas management says the divers should have started their ascent at 50 cu ft. I make that at 2000 pounds of air! (Someone check my calcs ... I'm doing it on the fly.) Of course with a lower SAC, that is a bit different, but I don't see that the dive should have been made in the first instance.