Buddy Liability in the Case of an Accident: Calling all Diving Lawyers

[divingchef]

This is pure conjecture and has no basis in reality (stems from a dream and i am curious).....

You go on a dive trip somewhere in the US.....the morning of your first dive, your usual and long-time buddy wakes up with a sinus infection....can´t dive, but insists you go ahead....you agree.....

You show up at the dive shop/resort/marina.......you inform the DM/instr/operator that you are a single and will be needing a buddy. As the other clients trickle in, you sit back and try to pick out other singles and sort of make little mental bets with yourself as to which one you´ll get.....instead of being pro-active, you wait for the DM to assign you your buddy....

Older gentleman (which is not a negative), a bit out of control on the boat...you saw him in the parking lot chain smoking before he entered the dive shop.....looks like he came straight from the bar.....you speak with him at length before gearing up to insure yourself that he is safe....you convince yourself he is (you REALLY want to dive) and proceed with the dive...

...80 feet, artificial reef (liberty ship)....DM forbids entry into the ship in the briefing and suggests that anyone entering the ship will not be allowed to enter the water on the second dive....

anyway to make a long story a bit shorter.....your "buddy" screws up. Make up this part of the story yourself .....he enters the ship, gets hung up, panics, heart attack.......or he embolizes......or ignores his compu and bends......anyway suffice it to say that your "buddy" either ends his life on this dive, or injures himself to the point that he will never dive again.

In review of the underwater situation, you probably could have helped him. You should have insisted NO when he began making his mistakes (because as we all know its neve one mistake, its a whole greasy chain of them) however, you considered yourself at risk and had convinced yourself that his abilities to "self-rescue" were ample or the DM would not have put him in the water (yeah right).....

to get to the just of this story......someone in your "buddy´s" family, decides its your fault and begins whatever mucky legal process they can dream up (involuntary manslaughter, civil suit wrongful death, whatever)

What are your liabilities as a diver? Is there an assumed liability when diving in this situation or does the Dive Operation assume full responsibility? Does anyone know the legalities of this situation? Has anyone heard about situations like this?

Once again, this was a dream I had and is 100% based in fiction and a wild imagination......it just kind of freaked me out and I wanted to get off my chest......

[dutchman]

I got good news and bad news. The good news is I am not a lawyer. The bad news is I hope your buddy and you signed that resort dive liability release. If not, you better have an umbrella insurance policy. In our litigious society you will most likely end up in court. This is just one reason, I believe, solo diving is becoming so popular. Some agency have started a certification process. As a buddy, you take on some reasonable responsibilities. It will be interesting to see if any lawyers step up to address this hypothetical situation.

[PlatypusMan]

Originally Posted by divingchef

This is pure conjecture and has no basis in reality (stems from a dream and i am curious).....

OOOOOoooooooooooo....this oughtta be good.

Originally Posted by divingchef

You go on a dive trip somewhere in the US.....the morning of your first dive, your usual and long-time buddy wakes up with a sinus infection....can´t dive, but insists you go ahead....you agree.....

Now I know you're dreaming....

Originally Posted by divingchef

You show up at the dive shop/resort/marina.......you inform the DM/instr/operator that you are a single and will be needing a buddy. As the other clients trickle in, you sit back and try to pick out other singles and sort of make little mental bets with yourself as to which one you´ll get.....instead of being pro-active, you wait for the DM to assign you your buddy....

Older gentleman (which is not a negative), a bit out of control on the boat...you saw him in the parking lot chain smoking before he entered the dive shop.....looks like he came straight from the bar.....you speak with him at length before gearing up to insure yourself that he is safe....you convince yourself he is (you REALLY want to dive) and proceed with the dive...

...80 feet, artificial reef (liberty ship)....DM forbids entry into the ship in the briefing and suggests that anyone entering the ship will not be allowed to enter the water on the second dive....

anyway to make a long story a bit shorter.....your "buddy" screws up. Make up this part of the story yourself .....he enters the ship, gets hung up, panics, heart attack.......or he embolizes......or ignores his compu and bends......anyway suffice it to say that your "buddy" either ends his life on this dive, or injures himself to the point that he will never dive again.

Okay, with you so far...

Originally Posted by divingchef

In review of the underwater situation, you probably could have helped him. You should have insisted NO when he began making his mistakes (because as we all know its never one mistake, its a whole greasy chain of them) however, you considered yourself at risk and had convinced yourself that his abilities to "self-rescue" were ample or the DM would not have put him in the water (yeah right).....

Still with you so far...

Originally Posted by divingchef

to get to the just of this story......someone in your "buddy´s" family, decides its your fault and begins whatever mucky legal process they can dream up (involuntary manslaughter, civil suit wrongful death, whatever)

What are your liabilities as a diver? Is there an assumed liability when diving in this situation or does the Dive Operation assume full responsibility? Does anyone know the legalities of this situation? Has anyone heard about situations like this?

Okay! Now we get down to the heart of your nightmare...

IANAL, nor do I play one on TV.

IMO, this all depends on the following:

What is the jurisdiction where this occurred? Laws vary from state-to-state and from country-to-country. What flies in one court's jurisdiction becomes a laughing matter in another.

Are you at the professional levels in SCUBA (DM, Assistant Instructor, Instructor, etc.)? If so, there is a requirement that you intervene to the best of your ability and training, whether you were diving recreationally or not, based on the professional cert and obligation of duty by having it.

In the USA, at least, anyone can be sued at any time for any reason. This is especially true if it's perceived that you have deep pockets (in some cases insurance) that can be picked by the courts.

Of these three, I suspect the answers to the first two items are the most important, with the second being used to establish a "duty to act" on your part. Remember, most lawsuits of the type you infer require the one bringing suit to establish:

1. Duty. You had the duty to keep the buddy from harm.*

2. Breach of Duty. You acted or failed to act in a manner that constituted a breach of your duty, as compared to the performance of a normal, prudent dive leader.*

3. Damages. The plaintiff sustained damages such as death, injury, maimed, temporary or permanent disability.*

4. Proximate Cause (and this is important). Your breach of duty was the proximate cause of the damages. IOW, your act or failure to act as required by your duty obligation created the damages incurred.*

Does this help you with your questions?




*--Source: NAUI Leadership and Instruction Course

[divingchef]

Thanks Platy-dude...

Im hoping this stays a dream.....but it was weird to have that scenario in my head. it was like watching a movie....I mean the I wasn´t in the dream.....it wasn´t me diving.....

anyway, your answers are good and well imformed, thanks....I thought it would be interesting to bounce this one back and forth.....sorry for adding the "dramatic effect"

[Zyxistal]

[Soonerwink]

This really gives divers something to think about. Mmmmm.

[navyhmc]

Playing the devil's advocate here.

Duty to act: As a dive buddy do you have a legal duty to act? Now as a paramedic on an emergency call, I do have a legal duty to act. As a dive buddy, do you? I won't argue a moral and ethical duty to act, but is it a legal duty to act?

Solve your own nightmare: Buddy wants to enter the wreck? Get in front of him and do the "No F'in Way" sign. If he still enters, you made the attempt to stop him and he didn't listen. I will way without the correct training, I ain't going after him. I will try my best to keep him in sight and maybe shine my light in the entrance, but not going to put myself in unneccessary danger due to his stupid act.

[divingchef]

In the end I think one must act in such a way that you will always be able to look in th proverberial mirror. I think as human beings we do have a moral duty to other humans, however contextual it may be. Ethics is always a slippery slope.....I mean if McDonalds can get sued for millions because a customer burns themselves with hot coffee, then what happens in this situation. If you act always in such a way to preserve your life and those around you, it will all "wash". Triage on the battlefield is not easy, but very necessary, no?

[RoadRacer1978]

Funny you bring up the McDonalds lawsuit. Most people do when they think of people beig able to be sued for any reason. There were however many factors that led up to the case and McDonalds losing the case. Here are a few facts about the case. It was more the total disregard for their customers safety that McDonalds's has than the fact that someone was burned with coffee.

McFacts abut the McDonalds Coffee Lawsuit

McDonalds coffee and the Liebeck lawsuit

[divingchef]

i knew there was more to the case, its just an easy "surface" argument to put ideas in context.....I think UW, in this situation, a diver would "react" more than "think". As a "prepared" diver you have drilled, training, practiced these sort of situations, but until confronted with them in reality, you never really know how you will react. Sorry if the McDonalds thing threw the thread "off course"