How accountable...

[rstofer]

b. The "proximate cause" of the injury must result from an act of the defendant;

So, my buddy runs out of air. It would seem to me that OOA is the proximate cause. Not the fact the we got separated (for whatever reason) and my alternate air isn't available to him.

There are no excuses for OOA but there are several reasons for separation. None really good but they exist. Different swimming speed. Trailing diver stops for a moment (exertion, gear issues). One diver stops to take a photograph, the other is bored.

If we try to make our separation as the proximate cause, we need to be tied together with a short rope.

Fortunately, none of this matters. I will never again dive with an 'insta-buddy'.

Richard

 

[meierdierck]

"We owe each other a duty of care to be reasonably prudent dive buddies."
within reason...nobody is legally required to put thier life on the line and are legally discouraged from putting themselves purposely in harms way, and yes you can be sued for rushing in and making my situation worse, mores o than not doing anything

"I flip you off and hightail it out of there. I'm negligent. I'm violating a legal (and moral) duty."1- why on earth would you do that? if you have enough air? in a non life threatening situation, that is nor ereasonable or within our training
2- what legal recourse do I have if you did do this? none whatsoever
3- if I have a deco obligation, am I MORALLY OBLIGATED to give you my lifeline and create 2 rescue situations, thus compounding the problem?
4-I owe it to you to act as a resonable and prudent person, surface safely, and get you the help that you need to the best of my ability, not rush in like John Wayne and create a bigger mess, if giving you my alt air is prudent, then that is what I should do, If it is too risky, then I am only compounding the problem, but the decision needs to be made at the moment, based on the circumstances and what is best for the victim, blanket statements that "I wont come out of the water without you, dude" are ridiculous,

is it better to preform CPR by yourself, or go and call 911 and get professionals on their way with the tools and support to really do some good, sometimes

 

[Thalassamania]

If you get accidentally separated and thus are not there to fulfill the duty, there will be arguments to be made on both sides. If you get separated because you are an inattentive butt-head and thus are not there to fulfill the duty, again, there will be arguments to be made on both sides. If you are there in a position to fulfill the duty, and you refuse, that's pretty clear cut, you are liable.

... blanket statements that "I wont come out of the water without you, dude" are ridiculous ...

I never say, "dude," but that is my approach, and my ethic, and for all of my diving career I have made damn sure that I am fully capable of fulfilling it.

I don't think that your refusal to do so makes you a cowardly weasel, you do what you have to do withing the confines you your skills and capacities, but acting in the manner that you avocate would make me a cowardly weasel.

By the time you cover your butt, surface safely, and go get help, you're way past the assist or rescue phase and are into the recovery phase.

 

[meierdierck]

(see Rassmussen v. Bendotti 107 Wn. App. 947 (2001))

.[/QUOTE]

i just did a search, and this case references limited landowner liability when they allow public use of their property, did I miss something?

 

[Thalassamania]

Here you go.

 

[meierdierck]

I never say, "dude," but that is my approach, and my ethic, and for all of my diving career I have made damn sure that I am fully capable of fulfilling it.

I don't think that your refusal to do so makes you a cowardly weasel, you do what you have to do withing the confines you your skills and capacities, but acting in the manner that you avocate would make me a cowardly weasel.

By the time you cover your butt, surface safely, and go get help, you're way past the assist or rescue phase and are into the recovery phase.

and you my friend are also being recovered

 

[Thalassamania]

Please, speak for yourself and evaluate your own capabilities, skills and knowledge ... I've lived by that ethic through over fifty years of diving, and I'm still here.

 

[meierdierck]

IS THIS WHAT YOUARE TALKING ABOUT? SEEMS TO SUPPORT MY ARGUEMANT

"he acted as a reasonably prudent diver when he ditched his weight belt and ascended."

"the court further reiterated that a diver's primary duty is to himself, or herself, and that Bonny became entangled only after Gene faced his own emergency. And Gene's duty to Bonny terminated once he faced his own emergency."

Gene owed a duty to Bonny to act in the manner of a reasonably prudent diver.' Conclusion of Law 3, CP at 562.

 

[meierdierck]

here is what PADI says

What three things should you consider before attempting an
inwater rescue of someone in the water?
a. Knowing how to help others in the water is important.
Always act safely to reduce the risk of becoming a victim
yourself.1. If a diver or person needs rescue, first consider
whether you need to enter the water at all. If you can
extend a line or pole to the person or aid via a boat,
that’s always better.
b. If inwater rescue is required, consider whether you have the equipment
and training necessary.
c. If inwater rescue is required, consider whether you can reasonably
expect to accomplish the rescue without getting into trouble yourself.

 

[fisheater]

You and I agree to go hear a concert together. We agree to drive in one car. We park in the parking lot, get out, and begin to walk to the door. We are two buddies who have agreed to go hear a concert together.

Suddenly a guy with a ballbat jumps up from between two parked cars and commences to whack you with the bat while loudly demanding you turn over your shoes. You look at me and say "Dude, I could use some help here"... I flip you off and run away.

I am certainly violating a moral duty to help my friend, and socially I'm a big coward and worthless human being.

But our agreeing to go see a concert together did not constitute a legally-enforceable contract that holds me subsequently liable for failing to come to your aid. I may have taken on various moral and societal responsibilities by agreeing to go together with you to the concert - but there is no valid, enforcible (in a court of law) legal contract between us.

To the best of my knowledge - and if you can provide a legal citation I will happily declare myself utterly wrong - it is the same with agreeing to be dive buddies.

Such an agreement does not constitute a valid, legally binding (in a court of law) contract between us that requires either of us to render aid to the other or be prosecuted for failing to live up to the terms of the contract. We are not held to any higher standard of duty or care, as might be the case if we were, say, police officers or medical professionals. For one thing, the court would need to examine the precise terms to which we contractually obligated each other. And my understanding of your obligations may be different than your understanding or anticipation of mine.

Again, I may be mistaken - but TTBOMK dive training traditionally identifies moral or professional ethical obligations to one another, but not legally valid and binding contracts between one another.

Doc

Be sure not to confuse contractual and tort concepts of duty. There are different criteria for a court finding that a tort duty of care exists, as opposed to a contractual duty. You (or your heirs) couldn't sue me for breaching a "contract to be dive buddies." (At least not without some pretty darned bizarre facts.) You (or your heirs) could sue me for failing to act as a reasonably prudent dive buddy would act under the circumstances. That duty arose from our relationship, not strictly from a contractual agreement.

Think of it in terms of driving. You hit a pedestrian, you're liable if you didn't act as a reasonably prudent driver would. (Heck. Maybe you had an unanticipated stroke, in which case, you would NOT be liable.) You wouldn't be sued for breaching any contractual relationship with the pedestrian.

Your duty to act with regard to your dive buddy does depend upon that person being your dive buddy, which comes about through an agreement, but the duty itself isn't contractual in nature.

As to your example, when we're walking down the road together, we don't have any expectation that that means that we'll come to each other's aid when attacked. (Of course, if we knew we were going into a rough neighborhood and I said "let's not" and you said "come with me, I'll protect you. These are my homies," then you would have breached a duty of care. One that you took upon yourself.

Virtually nothing in law is clear cut, so disputes about whether a certain act or omission is or is not the basis for liability keeps the court's open and lots of us attorneys employed.