“Duty of Care” when taking others on personal vessel, to dive

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What’s up SB….

Quick question here. Does anyone have a clear-cut answer to what my “duty of care” requirements would be, when taking friends out to dive on my personal vessel? No money is being exchanged, just friends diving together. But I initiate the trip, bring the boat to the ramp, launch the boat — all by myself — and my buddies jump on prior to leaving the dock.
We need to separate criminal and civil (tort) requirements.

For a non-commercial trip, to run afoul of criminal law, a passenger would have to be injured through your grossly negligent or reckless actions. The exact wording depends on your own state laws. This would be hard to prove and most jurisdictions won't even try these sort of cases for recreational activities unless it's blatantly obvious. It would normally take something like abandoning the diver in the water, driving over a diver while drunk, or taking the boat out with known and dangerous deficiencies that directly cause the injury.

I suspect you are more interested in "how do I keep from getting sued if something goes wrong?" And the answer is that you can't keep from getting sued which is why you want liability insurance if you take anyone in or on your car/boat/plane/motorcycle/horse/pool/trampoline/?. That said, to win the suit, the basic question will be whether you acted reasonably based on what an average person would do in the same circumstances. For a boat owner, having a first aid kit on board is probably reasonable, and certainly if it is required by your local laws. If you have one, making it available to the injured person is reasonable. What they decide to do with it is not your responsibility. OTOH, emergency O2 is not something that an average boat owner would necessarily have on hand for a recreational dive. However for a technical dive, even a simple deco dive, I suspect a jury could be persuaded that not having it was unreasonable.

The bottom line is taking ordinary care is your best defense. Despite public perception to the contrary, US courts and juries are very reluctant to give out damage awards to people voluntarily participating in sports considered risky such as diving.

By the way, a properly written liability waiver won't keep you from getting sued. But it could absolutely help you get a speedy dismissal of the case as long as you didn't act with gross negligence.
 
We need to separate criminal and civil (tort) requirements.

For a non-commercial trip, to run afoul of criminal law, a passenger would have to be injured through your grossly negligent or reckless actions. The exact wording depends on your own state laws. This would be hard to prove and most jurisdictions won't even try these sort of cases for recreational activities unless it's blatantly obvious. It would normally take something like abandoning the diver in the water, driving over a diver while drunk, or taking the boat out with known and dangerous deficiencies that directly cause the injury.

I suspect you are more interested in "how do I keep from getting sued if something goes wrong?" And the answer is that you can't keep from getting sued which is why you want liability insurance if you take anyone in or on your car/boat/plane/motorcycle/horse/pool/trampoline/?. That said, to win the suit, the basic question will be whether you acted reasonably based on what an average person would do in the same circumstances. For a boat owner, having a first aid kit on board is probably reasonable, and certainly if it is required by your local laws. If you have one, making it available to the injured person is reasonable. What they decide to do with it is not your responsibility. OTOH, emergency O2 is not something that an average boat owner would necessarily have on hand for a recreational dive. However for a technical dive, even a simple deco dive, I suspect a jury could be persuaded that not having it was unreasonable.

The bottom line is taking ordinary care is your best defense. Despite public perception to the contrary, US courts and juries are very reluctant to give out damage awards to people voluntarily participating in sports considered risky such as diving.

By the way, a properly written liability waiver won't keep you from getting sued. But it could absolutely help you get a speedy dismissal of the case as long as you didn't act with gross negligence.
The bottom line is that all of these remedies require paying a lawyer to argue your case. Realistically, an individual cannot get dismissals on their own. There is no reasonable way for an individual to seek justice even when the complaint is absurd, and getting compensated for expenses after a frivolous suit is nearly impossible.
 
The bottom line is that all of these remedies require paying a lawyer to argue your case. Realistically, an individual cannot get dismissals on their own. There is no reasonable way for an individual to seek justice even when the complaint is absurd, and getting compensated for expenses after a frivolous suit is nearly impossible.
Twas always thus. And the invention of the automobile brought it to new heights a full century ago. This is why various forms of insurance against such claims were invented and why prudent persons of any means avails themselves of them.
 
I have the ability to admin 100% O2 to a long hose 2nd stage at 15ft for IWR if I feel that's the best option.
I'm curious if you have tried breathing from this at 15 ft. The second stage will not see the normal IP (~135 psi above ambient), but I don't know how much compensation a balanced second stage can provide. (I am assuming the tank & first stage is on the surface.)
 
Twas always thus. And the invention of the automobile brought it to new heights a full century ago. This is why various forms of insurance against such claims were invented and why prudent persons of any means avails themselves of them.
I wonder how many private boat owners carry liability insurance on their boats, and for those who do, how many policies exclude things like scuba diving from the boat.
 
I'm curious if you have tried breathing from this at 15 ft. The second stage will not see the normal IP (~135 psi above ambient), but I don't know how much compensation a balanced second stage can provide. (I am assuming the tank & first stage is on the surface.)
Yes.....tank and 1st are onboard. To be honest, I have not yet tried using it at depth, but have no reason to believe that it will breath any differently than any other "hanging" 2nd. If you've ever been to Little Cayman, all of their boats, once tied off with divers in the water have a long hose 2nd hanging at 15ft and it's connected to an onboard tank and a 1st stage. Not 100% O2...... I'm sure its 32% or air and it's there only if a diver at their SS is low on gas.

You make a good point that I should test it out.

Interestingly enough, I'll be back on Little Cayman in about 3 weeks so while there I plan to ask Reef Divers about this......and also will probably take a hit or two from their hanging 2nd to see how it breath's.
 
I wonder how many private boat owners carry liability insurance on their boats, and for those who do, how many policies exclude things like scuba diving from the boat.
It is likely to be covered under their homeowner's insurance policy and/or a personal umbrella liability policy for small boats. Larger ones may require a separate policy for the umbrella to cover it. Of course you would want to read the policy, especially the exclusions, carefully before relying on it.

In general, it's rare for non-commercial recreational activities to be specifically excluded from off the shelf liability policies.
 
Interestingly enough, I'll be back on Little Cayman in about 3 weeks so while there I plan to ask Reef Divers about this
Yeah, I wonder if they jack up the IP a bit. Although, at 15 ft, it would only take an increase of 20 psi, which is probably within the capabilities of a balanced second stage. Would love to hear your experience when you get back. :cheers:
 
My understanding is that it's not always completely an individual's choice to sue or not to sue. If they need to use their insurance for treatment, for example, the insurance might basically force their hand to sue. This is how you get apparently silly situations like family suing one another: Family Members Suing Family Members: The Triumph of Insurance Lobbying Efforts. - Kafoury McDougal The insurance company might also bring a lawsuit themselves with their subrogation rights.
 
My understanding is that it's not always completely an individual's choice to sue or not to sue. If they need to use their insurance for treatment, for example, the insurance might basically force their hand to sue. This is how you get apparently silly situations like family suing one another: Family Members Suing Family Members: The Triumph of Insurance Lobbying Efforts. - Kafoury McDougal The insurance company might also bring a lawsuit themselves with their subrogation rights.
That's just one of the many unpleasant side effects of our mostly private medical and insurance systems.

Which isn't to say that mostly public ones don't have their own unpleasant side effects.
 

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