Does being a dive buddy expose you to liability?

[Rudebob]

Thanks for the interesting responses. My question is not so much of a concern as to whether a case like this would have merit in court but how possible is it that a diver can end up in a costly and emotional defense of himself.

In a worse case scenario involving a fatality, the natural emotional anguish on the part of the family will almost always result in the seeking of a cause and potentially assessing blame. Since the dive buddy was there, potentially the last person to see the victim alive, naturally there will be all kinds of possible second guessing on the part of the family as whether the actions of the buddy could have caused the incident, could of prevented its occurrence, or if he/she could have acted on behalf of the victim to result in a more favorable outcome.

It does make you think about who you want to go diving with.

‘bob

 

[Teamcasa]

I’m not a lawyer. However, I keep close company to two very good lawyers and glean tidbits every now and then. The first rule as told to be and one I have witnessed first hand several times in court is, he who is best documented – wins. Failing copious documentation, who ever has the best lawyers win.

As for being sued by a buddy, I agree completely with Peter’s assessment. Your buddies lawyers would have to prove your were negligent in some way in order to prevail. But here in California, common sense and a rational judgment requires a rational jury’s understanding of the case. This is uncommon and certainly not to be relied upon. Refer to the first paragraph! One more reason I love diving with my lovely bride!

 

[Joe-Diver]

I'll buddy up with ya.....here, sign this liability release first......

 

[Gombessa]

I like Peter's response... like him I dig through the court cases but am not a lawyer

Actually, Peter's post says he IS a lawyer. I think he may pass on the libel claim this time though

I'm not a litigator, but my thoughts track his. You are exposed to additional liability mainly in that you and your buddy are placed in a more dangerous situation than usual (merely meaning that it increases the chances of an actionable incident occurring).

However, in layman's terms, one basic principle in tort law is that a person who engages in a sport willingly accepts the rigors customary in the sport. What that means exactly is a bit up in the air, but I imagine common accidents (getting tossed from a boat in high seas, having someone giant-stride on top of you) may have a higher threshold for liability...

 

[northen diver]

Reading some of the threads on this and other another site has got me thinking about this-especially in our litigious culture. Have there been incidents where a ‘dive buddy' has been sued for negligence because he led a dive into a dangerous scenario, beyond the experience level of the partner diver, or failed to act prudently in a adverse situation?

I have heard that some DM’s or instructors are reluctant to dive recreationally with others of less training for this reason if the variation in experience can create a perceived relationship by the ‘buddy’ as one of a teacher to student.

I have also witnessed a situation on a cattle boat where a new, and very shy diver finally spoke up as everyone was hitting the water that she was a single and in need of a buddy. The DM quickly assigned her to a more experienced diver. There was very little pre-dive discussion and, although the dive went without incident, she had later indicated that was her first dive since OW certification and that she followed her buddy to depths well beyond her experience level. At that time I had wondered if an incidence had occurred, could fault be attributed to the assigned dive buddy.

So is this a legitimate concern? Have you ever declined to dive with someone because you felt that the diver/situation may expose you to potential liability?

'bob

If you dont re-act in a situation, you can also be sued. Look up the "duty to act" law. This gets really interesting when you are a certified EMT, DM, or Instructor for that some states will have the good samaritain law protection for NON TRAINED bystanders and some states will have the "duty to act" law for the TRAINED bystanders (even if OFF duty). If you are really worried about the legalities, I would suggest to reach out to a lawyer in your state and seek the legal advise from a professional.



edit: Sorry Peter, I was typing this reply while you were posting your response.

 

[GrandpaScuba]

Does being a dive buddy expose you to liability?

Yes it does.

 

[AzAtty]

In 2004 we had a discussion on the board that touched upon the issue presented here. I posted some of my research in that thread. I've re-posted it below.

I'll get you one step further. Once you've looked at Prosser to get an idea of the elements of different tort claims, go to the law library as DP suggested. Ask one of the reference librarians to direct you to the case reporters. Find the "Pacific Reporter," third series (the citation form we used is P.3d to mean Pacific Reporter, Third Series). Find volume 29. Turn to page 56 in volume 29, and you'll find a case entitled "Cully C. Rasmussen, as Personal Representative of Bonny Jo Bendotti, Deceased... v. Eugene L. Bendotti" (citation form "Rasmussen v. Bendotti"). The case is from Washington state and deals with a lawsuit against the buddy of a diver who drowned.

There is an unreported case from California called Yace v. Dushane. It deals a situation in which one diving buddy panicked and ascended to the surface and left the other buddy (who was low on air) behind. The buddy left behind died. Since it is not a reported case, it cannot be cited as authority on the point.

Rasmussen and Yace are the two cases dealing with the liability of a diving buddy about which I know. What you'll find is that courts borrow from other sports to determine liability. For instance, in Yace, the court looked to a case relating to voluntary participation in a school football program to determine that a voluntary participant in a sport assumes the risk of ordinary injuries. The court then determined that a buddy panicking is an ordinary risk of scuba diving. You might consider looking at cases where a couple people go out hiking, or biking, or skydiving, or boating and someone gets injured. Then, look at the general rules established by those cases and try to conceive how the rule might apply to a scuba diving case.

Good luck.

Bottom line is that there is the possibility of liability, but the duties of buddies to each other have not been well-defined yet. Rasmussen recognized a duty of a buddy to perform a check of one's own equipment and the buddy's equipment, but it did not go any further in defining duties.

 

[b1draper]

How about if you're diving for fun on say a charter boat and you show your DM/Instructor or even Master Diver card as your proof of certification. Keep in mind that you're not specifically leading a dive or even calling the shots in planning a dive. Do you automatically assume a higher liability because you have a "high" level of certification and training? For instance Master Divers, DMs and Instructors all have rescue training. How about a person that's taken a rescue specialty and certified; do they have a higher liability?

I know at least in Florida there's a Good Samaritan Law that protects people who do things like CPR and First Aid. I don't know if it applies to dive rescue.

 

[AzAtty]

How about if you're diving for fun on say a charter boat and you show your DM/Instructor or even Master Diver card as your proof of certification. Keep in mind that you're not specifically leading a dive or even calling the shots in planning a dive. Do you automatically assume a higher liability because you have a "high" level of certification and training? For instance Master Divers, DMs and Instructors all have rescue training. How about a person that's taken a rescue specialty and certified; do they have a higher liability?

The rescue topic has been beaten to death in other threads. The general rule IN THE UNITED STATES is that no bystander has a legal duty to rescue another person. Once a bystander chooses to become a rescuer, the rescuer has an obligation to exercise reasonable care in rendering aid. In such a case, the rescuer's higher level of competence/training will be considered in the equation when determining whether the rescuer acted negligently.

Good Samaritan shields have also been discussed in other threads. In general, some state statutes shield rescuers from liability when rendering emergency aid, but those laws vary in coverage and scope depending upon the state in question.

 

[murdrcycle]

Good Samaritan laws are definitely applicable in this case and will protect you. For instance, if you come across a car crash and there are some injuries, you are under no legal obligation to help (i.e. if you just keep on going, you can't be sued, contrary to the final episode of Seinfeld).

It also protects the other way. If you decide to stop and lend assistance, as long as #1 you aren't a professional, #2 you didn't do anything to CAUSE the accident, and #3 you don't do anything beyond your skill level and training (i.e. performing an emergency trach with a swiss army knife simply because you stayed at a Holiday Inn Express last night) then you also can't be sued.

Once a bystander chooses to become a rescuer, the rescuer has an obligation to exercise reasonable care in rendering aid.

Yes and no. They have an obligation to not do anything above their skill level.

While I am not a lawyer, I am very active in the motorcycle community and we hold First Responder courses a few times a year in many different states. I do know the legal implications of riding with a group of people, and I see very little difference between being a dive buddy and going motorcycle riding with someone.

I think that any lawyer worth his/her salt would go to the Good Samaritan laws in a second.