Thumbing the Dive

[boulderjohn]

This thread is based on a raging debate in another forum. I wasn't sure what area to post it. The discussion started pretty much in the world of tech diving, but I am hoping to expand the base of the debate a bit. I am especially hoping some of our diving attorneys will chime in. The reason is that the original impetus for that raging discussion was an incident that resulted in a lawsuit. I don't want to focus on that lawsuit, so I will try to frame the issue in more generic terms.

In technical diving, and especially cave diving, there has long been a universally accepted rule that any diver can call any dive at any time for any reason without repercussions. No one argues that, and I hope that people outside the tech world have the same feeling. The issue that is being debated is precisely what should happen when someone thumbs the dive. Some people are arguing that when that happens, every member of the group must end the dive completely--everyone gets out of the water. Others have argued that there are situations when that might not be the case. For example, what if your group jumps in from a boat, and during the descent someone has a minor problem? Does that mean that everyone has to end the dive and get back on the boat, or is there a point where it is safe to leave that person?

Let me describe the legal ramifications. Let's say you have a group of 3-4 divers beginning a dive. You are no more than a minute or two into the dive, and a diver indicates a problem and wants to end the dive. Your whole group accompanies the diver to a point near the surface where everything looks to be OK, the diver ending the dive indicates he or she is OK to exit, and the rest of the group goes on with the dive. When your group is done and returns, you find that the diver was not OK but had in fact died before exiting the water. Should your group bear any responsibility for that death? Something like that happened to people I know. During a descent, one of the divers indicated a problem. His signals clearly told the rest of the group to go ahead while he surfaced. His body was never found. Do the people who did not accompany him to the surface have any responsibility for his death?

In this debate, some are arguing that such a responsibility does indeed exist, and if a person who thumbs a dive is not accompanied all the way to the dry ground, the rest of the team should be held accountable for anything that happens. They have argued that it is implied by the established rule that any diver can call any dive at any time. When they call the dive--they call the entire dive. As a part of that discussion, I have asked participants to identify any language in any agency that states that clearly. So far no one has found anything. Realizing that, one person has told me privately that he will make sure that requirement is stated clearly in the agency materials now being revised.

So what happens if such language is included in that revision? If an agency (and especially if all agencies) say that if one diver ends a dive, everyone ends the dive completely, will that create a legal burden upon all divers to follow that practice? Will it mean that in the instances cited above in which people in the beginning of a dive indicated they were OK to exit on their own but had some kind of accident during their exit, everyone who did not exit will be liable for that accident and potentially be sued? Will adding such language alter the legal issues at all?

 

[tomfcrist]

I think I understand your question, and will try to explain.

First of all, an agencies policy about aborting dives either as a team or individually in no way makes the policy law. As far as liability is concerned, you would have to prove that the surviving buddy had a duty, and the ability to intervene, and that the lack of intervention is the proximate cause of the injury/fatality.
The agencies policy does create liability if the surviving buddy is a dive pro certified under that agency, and in the act of teaching or guiding.

For what it's worth, any buddy team bigger than 2 should be subdivided into groups of two for this purpose. If one guy thumbs, his buddy goes with...not the whole group. That doesn't mean that 6 people can't dive together, but that those 6 should pre arrange the group into pairs that are capable of operating independently from the bigger group. It's just a simpler way to dive in large groups...less confusion about who is responsible to who.

 

[Dr. Lecter]

Let me describe the legal ramifications. Let's say you have a group of 3-4 divers beginning a dive. You are no more than a minute or two into the dive, and a diver indicates a problem and wants to end the dive. Your whole group accompanies the diver to a point near the surface where everything looks to be OK, the diver ending the dive indicates he or she is OK to exit, and the rest of the group goes on with the dive. When your group is done and returns, you find that the diver was not OK but had in fact died before exiting the water. Should your group bear any responsibility for that death? Something like that happened to people I know. During a descent, one of the divers indicated a problem. His signals clearly told the rest of the group to go ahead while he surfaced. His body was never found. Do the people who did not accompany him to the surface have any responsibility for his death?

Moral responsibility is irrelevant: opinions are like holes and that's all an expression of morality is. Onto legal responsibility.

Because of differences between countries, it's impossible to say what the legal responsibilities are as an absolute matter. But in the US, while state law variations exist, potential liability will only fall on those who have assumed a duty of care (which does not exist in daily life). Generally that's only paid dive pros like instructors and DMs working for the operator in question.n

One might argue that a buddy has taken on a duty of care by explicitly or implicitly causing the other diver to dive only because they were relying on the buddy's assistance. In that case, what the divers' training and pre-dive communications were will determine whether that's a viable argument. It's an excellent reason for those of us who prefer to be let alone to do our own things to make sure the rest of the boat hears us tell an instabuddy to not expect anything from us, including seeing us during the dive, and also hears some kind of assent from the instabuddy.

I'm not aware of any training or pre-dive communications that would make it reasonable for another diver to base their decision to dive that day on the presence and assistance of others in the group (outside buddy and pros).

Realizing that, one person has told me privately that he will make sure that requirement is stated clearly in the agency materials now being revised.

I would not want to be on a dive boat with someone holding a certification that involved such training, even if it's really my certification that matters for determining what a buddy can reasonably expect from me. I would never take any class again from an agency that included that kind of language anywhere in their published materials. You'd have to be insane to do so.

First of all, an agencies policy about aborting dives either as a team or individually in no way makes the policy law.

This is, as a matter of US tort law, not particularly accurate. As your next sentence gets partly right, the existance of a duty is prerequisite to liability, and in this case one could easily argue that the dead diver in the buddy pair only dove because of his counterpart's training in the buddy system. By holding yourself out as a buddy, you may induce another to dive with you and thereby assume a duty of care towards them that you would not normally have. What level of care is involved there would, in the case of a non-pro diver, be up for debate...but being present when you've both been trained to stay with your buddy would likely be part of it.

Following ItsBruce's suggestion, I'll mention the blindingly obvious fact that nothing posted here (or elsewhere) by me is legal advice, and the less blindingly obvious fact that I'm a lawyer admitted in New York and Hawaii.

 

[Tigerman]

Legal ramifications, which can vary wildly around the world, aside - I have waved my buddy goodbye and ascended on my own after comminicating for him/her to connect with another pair and they all verifying it and Ive done so more than once. I have also aborted WITH a buddy, more than once. What I have also done is wave the guide byebye and continued the dive according to the agreed pre-dive brief/plan when (s)he has had to abort with someone.
I expect nobody to "have liability for me" if I clearly communicate that I will ascend on my own or if I continue the dive on my own/with my buddy.
If there was NOT any communication that I was OK to continue/abort on my own however I can see myself being less than pleased with my buddies if it works out, and a potential ****storm if I where to pass away. I have a hard time seing others that are PAYING to be there getting into much trouble, although potentially a lot of hassle, but a professional that IS PAID to be there I can see having a potential issue on their hand depending on where in the world it happens...

 

[kelemvor]

I don't think that thumb rule is limited particularly to tech or cave. My NAUI OW instructor spent some time emphatically telling us about the thumb rule during class. He gave us a few examples of dives that he or others had thumbed. I think it was the first or second day. However, in OW diving I wouldn't expect the whole group to end the dive. I'd only expect the buddy pair involved to do so. I'm assuming in tech/cave you need the whole team and therefore the whole team bails.

As for the legal ramifications? Who knows? Many lawyers make a living doing shady ****. I don't think it should be a situation where you should be held liable. However, there are plenty of laws or "legal precedents" that I think are total crap.

 

[Basking Ridge Diver]

Good Samaritan Law comes to mind on this conversation. I do not want to be Legally Held Responsible for anyone at anytime when I am diving.
As said above - I may morally be induced to lend help or aid. But that help or aid is on my terms and my conditions - based on the incident, air reserves, depth and conditions of the water. I have helped in an OOA condition at 80 feet with a single regulator - I led the gal to the DM and transferred her to his octopus and continued my dive. Once the law gets involved I think I might become blind to any conditions I may not want to engage in - unless I am willing and able to take on the additional risk. What I dont know about I cant be held responsible for and will deny all knowledge of said incident.
This is not what I want this sport to become - I hope that nonsense is just that.

 

[ItsBruce]

Wow. This is quite the can of worms. I will become involved in the discussion, but it will take some thought – more than I can give at the moment. For the moment, let me state:

1. If one dives with an instabuddy, be a buddy. Don't tell the instabuddy that you are going off on your own. Don't go off on your own. If you don't want to be a dive buddy to the instabuddy, don't accept the instabuddy as a buddy, whether as an instabuddy or otherwise.

2. I have dived solo. I have dived with a buddy. I have occasionally dived with a buddy team of 3 divers. I have dived in a group of solo divers. Until now, I don't recall hearing of a buddy team of more than 3 divers. Except when special protocols are in place for such a team, with explicit *written* understandings, I would counsel against a buddy team of more than 3 divers.

I will consider liability issues and report later.

Also, I think it would be beneficial to the discussion if those who are lawyers or have legal training, mention that in their posts. This is not because anyone is or should be deemed or considered to be giving legal advice, but rather it will help give context to what the person may say. That being said ...

... I am an attorney licensed to practice in the State of California. However, as noted, I am not giving anyone legal advice here.

 

[boulderjohn]

I do want to point out that although I did not want to dwell on the details of the specific case, there has been at least one case in which the supposed duty to see a member of your dive team--not an instructional group--all the way to shore when a dive is thumbed has been the crux of the case.

 

[ItsBruce]

I'm still not ready to present my thoughts, but some new posts have been made since I started typing my last one.

Assuming that there is not already a duty of care because of some prior act or omission, the law in most English speaking jurisdictions is that even if one has no duty, once they undertake to act, they assume a duty to act with reasonable care. Thus, if I am sitting on the beach, I can legally watch someone in the water drown without lifting a finger to either help or call for help. (California law specifically says this.) However, once I lift a finger, I have a duty to act with reasonable care. Of course, my failure to act with reasonable care might not be a substantial factor (California's standard) in causing the injury, so there might still be no liability.

---------- Post added January 16th, 2014 at 06:22 PM ----------

Note that there is going to be a great deal of uncertainty in any "answers" that may be provided here. Very little is "certain" in the law. That, of course, the source of a lawyer's power.

 

[tphelps]

This is a great topic. As a tech diver myself, there have been a couple instances when one of the members of the team did not pass bubble checks and we, as a group, decided the dive could not be continued with that failure. We had a team of 3 so I guess it could have been possible for the 1 team mate to exit the dive while the two of us continued.
But when it comes down to it, I'm glad we didn't. Assuming that the 3rd team mate made it back safely and was fine, he would have had to twiddle his thumbs for 2 hours and then hear the torturous of how awesome our dive was!

I agree that the instance you mentioned is a rare one but I can see the legal ramifications. Personally as an instructor and charismatic dive buddy, I wouldn't feel comfortable until I physically saw the student/team mate get back safely on board.

I can certainly see a legal incident if the individual left alone was a STUDENT!