New level of insta-buddy trouble

[Darnold9999]

I render no opinion on that.

Not even a preliminary qualified opinion with lots of buts and ifs and only in this specific case and maybe's

 

[Meng_Tze]

The McDonald's coffee case is often cited--as it is here--as an example of the the courts absurdly throwing out any sense of personal responsibility, which scares the hell out of people and makes it seem like someone providing a service has no hope. I read an analysis of this case a while ago, though, that indicates that the verdict is not as scary as it seems. I cannot remember the details, but I think I can give a reasonably accurate summary of the key points.

1. The coffee was not just hot--it was really hot--hot beyond industry standards. It caused physical harm that would not have occurred had the temperature been where it should have been.
2. At some time in the past--and I believe more than once--inspectors had notified them that their coffee was dangerously hot, and they had been ordered to remedy the situation.
3. They had made no effort to implement the required remedy.

Maybe points 1,2 and 3 are true..... tphat person dropped the coffe in their own lap.... accident/stupidity or whatever. Issue is that blame for scolding is placed soemewhere else. Maybe my views are too simplistic.

Bottom line is that adults should have the moral fabric to assume responsibility and accountability for their acts. Should issues arise due to a product/service used not functioning as it should, then maybe there is a case to be made. Should you step into an activity/use a product/service that you are not 100% comforable with, or know the risks.... assume the responsibilities and accountability.

That is growing up, being an adult..

some traits that many cultures view as part of becoming/being an adult:
* Self-control - restraint, emotional control.
* Stability - stable personality, strength.
* Independence - ability to self-regulate.
* Seriousness - ability to deal with life in a serious manner.
* Responsibility - accountability, commitment and reliability.
* Method/Tact - ability to think ahead and plan for the future, patience.
* Endurance - ability and willingness to cope with difficulties that present themselves.
* Experience - breadth of mind, understanding.
* Objectivity - perspective and realism.

But thats enough for me on this thread.

 

[MXGratefulDiver]

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.

I do not believe that was the intent of the judgment.

I think the judge chose his words carefully when he said "the standard of care in the recreational dive industry" ... it is by those standards, which are taught by all of the major agencies and written in language that even a non-diver can understand, that he rendered his decision.

That same standard of care ... which stipulates that a dive buddy has no legal obligation to intervene in a rescue ... is what protects the recreational diver from the sort of liability that concerns you. Indeed that must be the case, or no one would want to dive with a buddy.

It may come to pass that some judge will impose a different standard ... but given the logic of the judgment in this case, I do not see it taking Tancredi as precedent. Such a conclusion would be self-defeating ... even an "arm-chair" lawyer would be able to blow holes in it.

... Bob (Grateful Diver)

 

[DiveBandit]

I don't ever see divers being held liable for their buddies perils. First, most dive charters would go under because people would stop diving with anybody they didn't know and insurance rates would skyrocket. Second, the good sam law has to fit in here somewhere. Third, you'd have to be given some way to limit liability, like a waiver or something. Fourth, by making your buddy your legal responsibility they open up the possibilty that you may forgo your own safety looking after your buddy (very unsafe). fifth, my defense would always be that I have a responsibility to myself to preserve my own life and safety before I can worry about my buddy. Foreinstance, I can't be expected to first find my buddy before I make a CESA. Of course then you could also argue that any two people ingaged in any risky activity together would be legally responsible for each others negligence. I just don't ever see this sort of thing happening and if it did I could certainly see appeals going straight to the US supreme court. But a great topic for debate none the less ItsBruce!!

 

[DivePartner1]

. . . the good sam law has to fit in here somewhere. . . . I just don't ever see this sort of thing happening and if it did I could certainly see appeals going straight to the US supreme court. But a great topic for debate none the less ItsBruce!!

You are right as far as Florida's Good Samaritan law goes:

"Any person, including those licensed to practice medicine who gratuitously and in good faith renders emergency care or treatment either in direct response to emergency situations related to and arising out of a state of emergency outside of a hospital… shall not be held liable for any civil damages as a result of such care or treatment where the person acts as an ordinary reasonably prudent person." Fla. Stat. Ann. §768.13

The fly in the annointment is that the buddy status could imply a duty, eliminating the 'gratuitously' factor. This could make the buddy's performance an issue of fact. If you have an issue of fact you probably go to trial. I agree that unlimited liability does divers little good, but that is not what the liability system feeds.

As to taking it 'directly' to the Supreme Court, it is virtually impossible to do this since the Supreme's choose what they want to hear. Arthur Anderson had more direct right of appeal than a diver would get and they went bust by the time the Supremes exonerated them.

A diver would have to go through a state appellate system first, and lose, then find a federal issue. Budget maybe a half million to lose the trial and 30K to 50K for each appeal and your on the toll road to justice! Of course you'd have to post a bond to stop collection pending appeal -- usually a letter of credit for the entire judgment plus interest. Part of the problem in that the US is that its the only system in the Western world where you don't get your fees back if you win.

And you live in a state that the US Chamber of Commerce dubs as one of the worst "judicial hellholes" in the US, but that is a different topic.

So where is this going? I won't stop diving or using a buddy, but my point is that need for tort reform is something that has real consequences for all of us.

 

[Cacia]

The legal climate is pushing people out of all sorts of things, not just being "a dive professional". And while the intricacies of the legalities discussed here are interesting intellectual exercise, most working DM's are either very young and inexperienced and have no assets (and in many cases no insurance) or people who have another income source to protect, OR people just doing it for the love of diving who could make more money doing something else. Now, who is going to get worried and leave the "profession" paying 7 dollars an hour? I would like to see a solid assessment of the insurance situation. I am guessing 50% of the DM's here don't carry it and it is "overlooked". That means that when there is a poor outcome, they are coming after the guy on the boat that has something....even just an insurance pay-out, your house, your retirement, whatever is there to take.

And a good point is raised here. If I am using an operator that requires me to insta-buddy ...guess what? I am not using them anymore. Might be off topic for people who don't see the connection the legalities have to real life financial impact, or live in a socialist country, etc.

And part of the problem in that the US is that its the only system in the Western world where you don't get your fees back if you win. When you read about some business throwing a 'nuisance value' of a mil or so at a claim, this sometimes explains why.

major point...no disincentive for anyone to try and sue for anything....

this is all going to require some backlash to correct itself. I honestly believe if you are newly certified, go to 145 and run out of air and die, it is your fault and your problem.

 

[Storm]

I don't ever see divers being held liable for their buddies perils.... I just don't ever see this sort of thing happening and if it did I could certainly see appeals going straight to the US supreme court.

I had this same way of thinking before seeing the outcome of some of the more ridiculous liability cases I mentioned earlier that were a bit off topic. The point I was trying to make with some those case examples, is that before they were heard and decided upon, most would have said that some of those scenarios should never had made it court, but the fact is they did.

If a homeowner can be held liable for a drunk jumping off their balcony simply because a drunk was able to access the balcony, then it's not a large leap to hit a dive buddy for failure to render aid, or for abandoning their buddy and the buddy dies, etc. BTW, this balcony case is not far from the dive buddy scenario. A host of a party is responsible for their guests actions, and can be held responsible for any injuries that their guests may receive while on their property or as a result from actions taken at the homeowner's property (DUI) is an implied responsibilty.

When you agree to buddy up with a diver you are agreeing not only to stay with them but to provide them with a redundant air supply, knife for cutting out, physical assistance if necessary etc. This is the standard training mantra of all agencies. The entire basis of the OW course is how to use equipment, and how to use the buddy system to assit someone, or gain assistance for one's self.

It could be argued that, given the taining stresses the buddy system, (where the homeowner's responsibily is merely implied ) a diver buddy's responsibility to his/her buddy could be viewed as mandated.

I'm not saying this is going to happen in the near future, but I'd bet a good bottle of old single malt that within the next ten years you'll see some sort of action where a dive buddy IS held liable his/her buddy's death. Ive seen it happening more in recent years where the "we are our brother's keeper" attitude is becoming more prevelant "I am responsible for my own actions" in the court desicisions.

I have also seen this in other sports where they all said "ït will never happen in this sport " and it has.

I honestly believe if you are newly certified, go to 145 and run out of air and die, it is your fault and your problem.

Agreed.

Anyway that's my two cents on this one.

 

[andydiver06]

Some people can be really crazy. I recently heard that a DM took a DSD to 36 m dive in Koh tao. I also met quite a few divers with OW certification but logged several dives in the range of 20 to 40 m. Why study and work hard to get your DM if you don't wan't to take the responsibility.

 

[ItsBruce]

Another twist:

The judge goofed. He concluded that one of the acts of negligence was not assigning Tancredi a buddy. The judge said "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." I don't think so. To have given Tancredi air would have endangered the donor. To have gone right to the surface would have resulted in DCS. (This is evidenced by the fact the DM got bent doing so.) Tancredi was narced and apparently paniced. What is the chance of him doing a controled ascent? Two chances: Fat and Slim. What is the chance of him waiting through two deco stops? Again: Fat and Slim. And, that is assuming the donor had enough air for two people to do the ascent and deco stops. So, then, what's the chance of Tancredi giving up the donor's air supply at the first deco stop so he can head for the surface while the donor does his deco stops? Again: Fat and Slim. The net result is that for someone to have given him air, they were pretty certain to get bent, assuming they did not go OOA or embalize before even getting to the surface. I doubt a buddy would have helped him... unless it would have been to thumb the dive.

 

[Cacia]

yes, I must say that I am very reluctant to get close enough to share air at that depth if someone looked neurologically impaired and irrational. One of the most common ways to drown is when someone grabs you. If someone needs contact with me, they need to be under control or I reserve the right to not get close. I am just not confident all these subtleties would get fair play in court. When things go south, the "stop, breathe, think" sequence allows me to first assess if getting close is a good idea. It's my belief that a good majority of serious problems cannot be remedied by a buddy. I was with a woman once at Coki beach and she died. She was in thirty feet and just ripped all her gear off. Within a couple minutes, she was on the bottom and her lungs full of sea water. We resucitated her but later removed her from life support due to brain death. (I was on the dive, and was the RN in the ICU). I was just another diver, my BF the instructor...I never blamed myself because we were within 15 ft of her and did not see it happen. Last year someone I know had a certed diver go on a night dive, jumped in and when they found him, his weight belt was around his ankles and his inflator disconnected, and missing one fin. Who's fault was it? Everybody was right there, and no one saw it. His buddy was probably adjusting his own stuff, clearing his mask, getting oriented or something. Things happen and they happen when you least expect it and don't see it. Sometimes right under your nose. I am so very uncomfortable with the prospect of trying to assign "blame" or some moral short coming when bad things happen during basic thrill seeking adventure activities.

Is it even realistic that the judge in the above case should be able to think all the factors through, if he is a non-diver?.. and a jury would be even worse.

don't know where the smiley face came from...he is most inappropriate!