Does being a dive buddy expose you to liability?

[Rudebob]

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

 

[PhilEllis]

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

While others might disagree, I think there is no additional legal burden placed upon you as a dive buddy. There have been lawsuits against dive buddies, but if you look at those suits, EVERYONE was named in the cause of action.

When you are a dive buddy, you don't "lead" anyone anywhere. Now, you may go somewhere and they may "follow" you. But I don't see how that can increase your liability in any real sense.

You can get named in a cause of action simply by being on the dive boat with someone that gets hurt. Such tricks seldom survive summary dismissal.

Anyway, just my view.

Phil Ellis

 

[DivingPrincessE]

Regarding your story of the new diver, that is just nuts. I consider myself a very shy person, but you have to speak up once in a while. If something went wrong I would place ALL the blame on the girl, maybe a tiny bit on the dive operator for not asking how much experience everyone had...but no fault on the buddy.

When I was in FL in September I paid extra to have a DM as my buddy and made sure EVERYONE knew it was my first ocean dive. Then when I dove in Belize and Cozumel later that week I again made it known that I was a very new diver and was paired up with a group of 7 that included an instructor/shop owner and the rest were his DMs.

This will never happen in reality...but I think frivelous lawsuits because a diver CHOSE to do something stupid, got hurt, and is now suing should cause that person to lose his/her c-card. Of course this is different from people who really were injured because of a negligent dive op. I have a feeling there is more of the former than the latter though.

 

[Mack Diver]

I would tend to agree with Phil. You, not your buddy, are responsible for your own actions. As a diver, it is up to you and your buddy to develop a dive plan and stick to that plan. If your buddy wants to do something that exceeds your level of training, you can and should look for a different buddy.

As far as instructors not diving with others of less training, I do it on almost every recreational dive. If I am on a trip, I will usually not divulge my level of training. Instead, I may present my AOW or Rescue card. That is strictly so that I can enjoy the dive and not get roped into helping with the dive. If people that I'm diving with know that I am an instructor, it is understood that I am there for fun and not to teach or lead the dive. In fact, I usually let someone else lead the dive.

IMO, it is the responsibility of the Divemaster and the operator to provide a safe dive environment. It is up to the diver and their buddy to develop and execute a safe dive plan, which does not exceed their level of training.

 

[hansonian]

i know on more than one occasion i've been paired with someone with less experience than me. do i feel responsible for them if they do something to endanger their lives? the answer is no. will i assist them in anyway if i see them in danger? yes, without hesitation.

i hope it doesn't come to people suing each other because someone didn't pay attention when they dove. i like to think we as adults should take responsibility for our actions and not try to lay the blame on someone else. i'd be willing to bet sometime in the future this will be a legitimate concern though. which is why if i get paired with a less experienced diver i talk to them and see what they're comfortable/trained to dive to. and stick to that. i see no reason to risk someone's life (or my own) just to see a part of a reef/wreck or school of fish.

that's my .02

 

[Doc Intrepid]

From a heartbroken mother named Rosie Davies who posted this April 30, 2004:

farnsworth in memory of Michelle --

"Words can not express our sorrow, it will be one year May 17th since our daughter Michelle's death at Farnsworth. Her death ruled undetermined by the coroners office. Her buddie claimed she panicked therefore he left her. She died in the 1rst 2 minutes of her dive. I don't know much about diving and struggle daily with the thought that my daughter who was only 4'8" was left to die alone. I'm putting this post out in memorie of our daughter and in the hope that this will be a reminder to all divers to have a great time but never become complaisant." (sic)

From this thread by MHK:

http://www.scubaboard.com/forums/socal/27829-few-pieces-information-about-fatality-farnsworth.html

You may not incur legal liability from agreeing to be a dive buddy. I'm not a lawyer, and cannot say.

But as far as I'm concerned agreeing to be someone's buddy is not something to be taken lightly. It incurs at the least a moral and an ethical responsibility to look out for the other diver in the event that something occurs.

If you are unwilling to subject yourself to this level of responsibility, then do not agree to be someone's buddy.

Diver's like Michelle will appreciate you not implying you will be there for them, and then not being there for them in the gravest extreme.

Regards,

Doc

 

[Peter Guy]

Disclaimers: I am an attorney and I have looked at court cases regarding diver liability in some jurisdictions -- BUT, I am NOT an expert on diver liability in all jurisdictions.

That said:

1. Could you be sued if your buddy got hurt? Yes -- it would be easy to come up with a legal theory would COULD impose liability upon you and thus you COULD be sued. I will make no statement as to whether you would eventually be held liable -- although the lawsuit itself could be quite expensive. That's one of the reasons you need liability insurance -- to pay for the defense against a lawsuit -- IF you have assets you care to protect.

2. How could such a lawsuit be successful? Typical tort law (which would cover this area) says IF you have a "duty of care" towards someone, and IF you violate that duty of care, and IF, as a result of that violation, the person is injured, THEN you are (may be) liable for all or part of the damages resulting from that injury.

So the key here, from a buddy's perspective, is -- What is the duty of care owed to a buddy?

I could make the argument that the Duty of Care owed to a buddy is:

a. Not to do anything to injure or endanger the buddy (for example, enticing an animal to bite the buddy, turning off the buddy's air supply, or perhaps, kicking up enough silt to disorient the buddy -- think about THAT one!);

b. Once you act, you do the act in a competent manner (you say "I know the site, I'll lead" -- then you must do so competently -- or, if you do an airshare, don't then rocket to the surface); and/or

c. This is the legally interesting one -- IF your buddy gets into trouble (say entangled in a line), do you have an obligation to assist? Maybe you do, maybe you don't -- THAT is a "fact" issue and would depend on the specific circumstances of the situation (your level of competency, over all dangerousness, etc.). I think that a "buddy" does have some (NOTE -- SOME!) level of obligation to your buddy -- what that is, who knows precisely.

BTW, I did NOT stay at a Holiday Inn Express last night!!!

 

[scubadobadoo]

And the answer is...It depends on what lawyer you hire. Now, will that legal action have any result? Maybe, but probably not in most cases.

Regarding Doc's post above...I add my belated condolences to the stated victim's family. Truly sad.

Diver's like Michelle will appreciate you not implying you will be there for them, and then not being there for them in the gravest extreme.

Doc[/QUOTE

That said, I'm not sure if it helps to imply that the victim's buddy "left her" and didn't try at all. In fact, the OP in this thread states that the buddy pair ascended together almost to the surface and then were separated. This statement implies that the buddy in this case DID try to help and didn't "leave" the victim. The thread Doc referred to certainly didn't clear up exactly what happened with any certainty and the buddy in this case didn't speak for himself.

It is likely that if the victim was truly in panic mode that his help could have easily resulted in two deaths and more mystery as has frequently been the case when a rescue attempt is made underwater. We may never know and that's my point so placing any blame or liability in that specific case isn't going to help. Having been in a state of panic myself while diving, I can say that if anyone would have gotten in my way, I would have taken them with me. If you have never panicked while diving, then you just can't imagine the narrowing of perception that takes place.

Again, I don't post this to argue or to be difficult but rather in a respectful way. I do agree that the buddy may have been able to do more and that one should try to do as much as possible when they decide to be a buddy. I believe that is primarily the point Doc was making. But, at some, point, you gotta just let that panicked diver go and try to recover them when they may not be in the position to kill you too.

 

[Codiak]

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

The key point is "Anyone can be sued, for anything" (US anyway). That doesn't mean you will be found libel in the end... but there are the lawyer fees.

While I hope we all take diving as an at your own risk sport. That doesn't equate to surviving families agreeing...

 

[Hockeynut]

http://www.scubaboard.com/forums/solo-divers/91940-why-does-solo-have-big-future.html

I started this thread many moons ago. I never heard how it turned out.Here was the scary part of the story;

The wrongful death lawsuit alleges that Shatz didn't die because of equipment malfunction or because he panicked after a medical problem. Feldman failed in his role of dive buddy, a "special relationship" that required him to come to the aid of his diving partner, the suit says.