Legal requirements for divers

[8thElementDiver]

Peter Guy mentioned something interesting in a different thread. I wanted to discuss it, without having the original thread go off topic, so I'm posting it as a new thread.

Rather than hearing about everyone's opinion on this matter, I'd like to hear from attorneys who could shed some light on the issue.

Third and last, in many jurisdictions (Washington included) the level of training of the actors will be taken into consideration when determining the standard of care owed by one person to another. So merely by taking a DM course (or any other "higher level" training) you may be increasing your duty of care and thus subjecting yourself to a greater likelihood of liability.

Divers are legally required to *owe* care to their dive buddies in Washington State? Certainly, I would expect that of a dive professional (such as a class instructor or DM for the class), but it's also true for dive buddies? If I go hiking with some people, am I required to *owe* them medical care simply because I'm a CPR/1st aid instructor, even though I'm just their hiking buddy? I didn't think that anywhere in the US there was a duty to act to aid others, as long as I'm not being paid to do so. (If I encounter a cashier who's confused when I give her $5.03 to cover a $4.78 charge, am I--as a math teacher--required to help her understand I just want a quarter back?)

Also, where does such a duty of care begin? If I have one more dive than my buddy, does that make me more responsible for him than he is for me? What's the liability risks associated with Advanced Open Water divers, Rescue divers, Master Scuba divers, etc? Should people be concerned about getting those ratings, for fear of being sued?

I'm not an attorney, and I carry liability insurance, so this isn't much of an issue for me. I would, however, like some clarification for others who might otherwise be scared away from obtaining a DM certification because of liability issues. Thanks.

 

[don Francisco]

Todd, I can't speak for Washington state, but generally "civilians" have little or no duty to care. The situation varies greatly for professionals. For example in New York, an off duty EMT has no obligation to stop and help an injured victim he might happen upon. But in neighboring Connecticut, where EMT's are considered on duty 24/7, they have a duty to stop and assist in any emergency where they may be needed.

The real issue isn't the what the law might be, but what might be argued in a possible civil action, where the standards for bringing suit are rediculously low, and where only a tiny percentage of cases ever get anywhere near a courtroom. In these cases, what will be argued is what level of care someone had a reasonable basis to expect from you.

 

[polyrandom]

It is a bit weird to think about that. I had planned to get my dive master cert next year, not for teaching sb. in LDS but to improve my skill/safety on diving. If I pay to get on a boat and dive with some strangers, I may or may not try to rescue them if something happen by judging the risk to do the rescue. But I don't want to go to the courtroom just because I have the cert.

After reading those threads I changed my mind and try to stay "recreational". I might take the dive master classes but not to get the cert. To tell the truth, I am actually not sure if I took the classes, will the lawyer consider that I DO have the ability to rescue others though I don't have a cert and put me onto their list. Maybe I can put wrong answers on all paperworks so I can prove I am not capable for rescuing anyone. Mmm..., a good idea!

 

[Alex777]

I am an Attorney, but not an American one. As far as English law is concerned:

Peter Guy is entirely correct. You are confusing 2 different concepts: DUTY of care and STANDARD of care. You only acquire a duty of care by agreeing, implicitly or explicitly, to assume some obligation towards another diver. An Instructor teaching a course has explicitly assumed a duty of care towards his students. A buddy implicitly agrees to a duty of care towards his buddy. Just being on a dive boat as a diver does not, in and of itself, mean you have assumed a duty of care towards anyone.

Once you have assumed a duty of care towards someone, the next question is: what is the standard of care you must exercise? On this question, all of your training is relevant. If you are a DM, the expected standard of care is higher than if you are just an OWD. You are expected to use the training you have. However, your level of training has no bearing on the first question of whether you have assumed a duty of care.

 

[D_B]

This is a good question
*watching thread*

 

[Alex777]

Divers are legally required to *owe* care to their dive buddies in Washington State? Certainly, I would expect that of a dive professional (such as a class instructor or DM for the class), but it's also true for dive buddies?

If I go hiking with some people, am I required to *owe* them medical care simply because I'm a CPR/1st aid instructor, even though I'm just their hiking buddy?

If I have one more dive than my buddy, does that make me more responsible for him than he is for me?

What's the liability risks associated with Advanced Open Water divers, Rescue divers, Master Scuba divers, etc? Should people be concerned about getting those ratings, for fear of being sued?

So, to answer some of your questions (as far as English law is concerned):

Yes, you owe a duty of care to a dive buddy, just as he does to you.

In all probability, you have assumed an implicit duty of care towards your hiking "buddies".

The number of dives you have done is not very relevant unless there is a great disparity between your experience level and your buddy's.

At every certification level, a diver who has assumed a duty of care is expected to USE what he has been taught to do. I would hope that this is not a disincentive to advanced training - we really shouldn't let tort law rule our lives.

 

[don Francisco]

Alex has said it perfectly, and I have one minor point add.

It isn't whether one has the ability to lend assistance, but whether others have a reasonable expectation that he can and would, and to the extent they relied on that.

 

[Sinbad the Diver]

Not a lawyer at all, but common sense dictates (I understand that common sense rarely applies to these kinds of issues) that the potential for harm or danger to yourself has a bearing on what Alex77 refers to as Duty of Care. For example my buddy rockets to the surface from 80ft after a 30 mins of bottom time because of a heart attack my following him up obviously puts my life and safety in great danger. So if you take that out of the discussion, back to common sense, if you aren't going to do everything in your knowledge and ability to help your buddy in an emergency then you need to be diving solo because to me there is an unspoken agreement between buddies to do just that by nature of being a buddy.

 

[ScubaSteve]

.......if you aren't going to do everything in your knowledge and ability to help your buddy in an emergency then you need to be diving solo because to me there is an unspoken agreement between buddies to do just that by nature of being a buddy.

I agree with this however I believe the OP's concern was what legal ramifications can come about one way or the other. Someone said that we should not let this change our decisions to pursue further training or not. While I tend to agree, I have found myself in positions (non-diving related) where I was forced to ask myself,

"In today's society, what is the likelihood that some money hungry arse is going to take advantage of my good samaritan self by suing me fore some god foresaken and unknown circumstance?".

I personally have chosen a different path at times when asking this question. For helping a buddy out in the watwer, I will not put my life in extreme danger however I will do anything and everything to help a buddy (however maybe someday I will end up in jail becuase of it....who knows).

 

[PhilEllis]

I know of no cases brought in the United States against a dive master or instructor who was diving in the proximity of an accident STRICTLY BECAUSE HE HELD A DIVE MASTER CERTIFICATION. As DonF said previously, the tipping point relates to how the victim relied upon another's advanced skill. Now, there have been a few cases where a buddy was sued in civil court for what he or she did or did not do. I don't remember the outcome of those cases, but no matter what your level of skill or your level of training, you can find yourself involved in civil actions due to the "sue everyone and let the court sort it out" theory applied in many civil lawsuits.

Phil Ellis