Thumbing the Dive

[gcarter]

1. No one pays a lawyer in an injury case by the hour.

Which does not change the fact that if someone decides to sue you, you will still incur legal costs defending. The point is that requiring buddies to sign a waiver is in no way a guarantee that you will not be sued, nor it is a guarantee that you will not incur legal bills.

 

[Lorenzoid]

Respectfully, it might seem reasonable to you, but how about to a jury? Divers are taught to follow their training. Is it reasonable to disregard they're training vis-a-vis staying with their buddies?

Respectfully, Bruce, when I wrote that comment about what would seem reasonable to ME in the Dan-and-Sandra hypothetical, I was hoping readers would understand that I was speaking as though I were a juror. Maybe others picked that up. Nobody can predict what juries will think, but we can hope they would look at the whole picture--the totality of the circumstances if you prefer legalese--and decide whether under the circumstances it would be reasonable to leave a buddy at some point in a dive even if some expert testifies that that is not what is taught in dive training.

 

[ItsBruce]

1. The defendant does. (or at least their insurance company does)

2. Hopefully, the defendant's lawyer will. In fact, if the release isn't properly filled out and signed/witnessed, My insurance company specifically refuses to defend me.

Let me be more clear. I'm referring to lawyers representing plaintiffs.

BTW, there is a California case where a waiver was ruled to be inapplicable because it was in a section of the gear rental agreement entitled something like "Multi-day and Boat Rentals." The diver was renting the gear for one day, for a beach dive. The court said the waiver was not clear and conspicuous.

 

[danvolker]

Respectfully, it might seem reasonable to you, but how about to a jury? Divers are taught to follow their training. Is it reasonable to disregard they're training vis-a-vis staying with their buddies?

---------- Post added January 19th, 2014 at 07:30 AM ----------



1. Have you ridden at Boyette by Tampa. Even though there are no mountains (unlike SoCal), it is worth the trip.

2. Waivers and videos are there to minimize the risk to the landowner of being sued.

3. People may make fun of California, but we have a law that says if you are injured as the result of a risk inherent in the recreational activity, there is no liability. There is no DUTY to change the nature of the activity to make it safe.

4. Standards of conduct are set by the dive community. Juries if non-divers have to evaluate conflicting evidence about what those are and have to decide if conduct was within or outside of it.

5. As to the hot coffee case, the issue was whether the coffee was unreasonably hot, not whether it might spill. The evidence was that the vendor knowingly and intentionally kept it too hot for human consumption - so it would stay "fresh" in the vat longer.

6. How do you feel about dive-ops that don't test for CO in their fills?

...Closest to Boyette has been Alafia....For the distance, we like Santos......If time was no object, Id be riding Tsali in NC every weekend
# 5 is still an issue for Darwin, where those that get such an injury should have been removed from the population prior to this by wolves or some other predator.

California is beginning to look much better after this peek into it's governance


Your questions about the buddy responsibility are the right questions to ask.....When I pick a buddy, I am not looking for a BUDDY that would have to be threatened by Fear of Punishment to "live up to the verbal agreement". I pick a buddy that I believe thinks about things the way I do, and that feels an absolute responsibility --one that needs no enforcement beyond his own sense of Duty and morality. If a buddy was so lacking in moral fiber that you would need a legal contract to incentivize their behavior, this is the wrong person to choose for a buddy--and when the sh*t was hitting the fan, if it ever did, this would be the buddy that would break the agreement--not the one that felt the absolute DUTY.

This is why George Irvine and I always have said, that your most important gear choice ( this for tech or cave diving) is your buddy. This is why the idea of an "insta-buddy" is ridiculous.
Our buddies are absolutely going to have our back.....No legal contract could ever enforce such behavior ( where cowardice and dozens of other character defects render the poor buddy choice as impossible from the inception).

 

[dumpsterDiver]

So if an agency moves in the direct of specifying some sort of enhanced responsibility/liability etc...

Would it be binding upon all the millions of people who were trained prior to implementation of this new guideline?

Is it expected that the agency will recommend that buddies sign some kind of reciprocal agreement, because most divers would be unaware of this new policy?

 

[Lorenzoid]

This thread is getting surreal.

 

[Omisson]

Your legal obligations vary by state- in NY liability would attach by violating an express directive (presumptive liability) - in a certifying organization IF you were conducting an activity under their auspices... And all participants are members/students. It gets murky with tag-alongside for a variety of reasons. Even more so if they are from different certifying orgs with different standards/riles.



Since the rule creates a presumption, you would have to refute the presumption in order not to be found liable - the DEGREE of liability depends on the source of the directive, it's intention, and context. It also depends on whether your state is a comparative fault state (joint and several liability or comparative negligence for example).



The directives of a private organization would be considered normative IF they reflect "industry standards" conflicting industry standards would also cloud the issue.



A I mentioned in another thread - cave diving falls into the ultra hazardous category because it is a sub discipline of Tec diving. Regular ow scuba is considered a hazardous activity. It sets a higher bar on the "victim" (comparative fault) in showing fault in third parties.



There aren't too many lawyers I know versed in this area of law, because of the small niche market- most are on the payroll of the major agencies or insurance carriers.

 

[danvolker]

Part of the nonsense of this legal side.....
There is no way some ridiculous legal contract, is going to make a coward or even an "average" man, act Heroically like a Navy SEAL would...the words on paper cease to exist in the heat of battle, and the true nature of the man defines his actions....In a potentially catastrophic Diving scenario, all the same elements are in play....If you have chosen well, your buddy will BE the man or woman you need them to be, when the chips are down....If you have chosen poorly, as in expecting a written contract - to turn a coward into a hero....then you may never make a mistake again.

---------- Post added January 20th, 2014 at 10:53 AM ----------

And another thing.... I have always said that diving is NOT for EVERYONE. There are "Never-evers" ( people that can-not be trained), and many people that just make lousy divers. Maybe divers today account for 5% of the total US population ( probably less). Of this 5%, probably less than one in one hundred, of the 5% ..... have anything close to the ADVENTURE SPIRIT and the HEROIC POTENTIAL required to "BE" the buddy you would want to have in a Catastrophic scenario. This is why your choice of buddy is your most important gear choice, and why so much screening and in-water testing of this choice, is required for you to KNOW that you have the right buddy.....and this is why you need to cultivate good buddy relationships, and make these people important and part of, your daily life.

The divers that THINK they are too busy to develop strong buddy relationships, and who would instead hope to compel a stranger to ACT like a HERO or a Buddy -- by a quick stroke of a pen on a written contract---these divers are seriously deluded, and bad for the sport--as well as being divers that dive with the protection of paper tigers--they think they have backup plans, but in reality they do not.

 

[Bob DBF]

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?

I would like to know if the agency is going to now train for team diving rather than buddy (singular) diving which has been the norm until this time? And as far as that goes, I never have had or seen any training for groups of three for that matter during an OW class. Will we all get recall notices to be retrained to the new standard?

Over the years I have worked out my own procedures for these situations, however I also solo dive and it gives me a bit more flexibility in my planning. In the event my buddy thumbed the dive, regardless of how many other divers were in the water with us, I would get him back on the boat and attempt continue my dive solo, with or without the group, depending.

Occasionally these threads point out how much free time we have to waste.



Bob
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That's my point, people, by and large, are not taught that diving can be deadly, they are taught how safe it is, and they are not equipped with the skills, taught and trained to the level required to be useful in an emergency.

 

[boulderjohn]

I would like to know if the agency is going to now train for team diving rather than buddy (singular) diving which has been the norm until this time? ... Will we all get recall notices to be retrained to the new standard?

I think you are replying to the portion you quoted in which I said I know of an agency that is planning to include specific language saying that if a diver needs to exit the dive, the entire team must exit all the way to shore. Since then, I have been told that those instructions will be limited to instructional situations. In that case, I replied, I didn't see any difference, because it has always been my understanding that an instructor has to be in close contact students in the water at all times. I don't see any retraining in the issue, to be honest. However, if NEARLY ALL agencies were to adopt that policy, I suppose it will become part of accepted practice that could impact you in legal situations.

And as far as that goes, I never have had or seen any training for groups of three for that matter during an OW class.

I do agree that this is generally lacking. I did not get any training in that until I took technical classes, at which point we spent a lot of time with that. I created a Distinctive Specialty for Advanced Dive Planning with that in it, and it is approved by PADI. Not many people take it.