Hypothetical case--a question for attorneys

[boulderjohn]

A recent situation got my mind spinning to a hypothetical situation, and I would be interested in the opinions of the fine attorneys who come to this forum from time to time. Because what I will write is hypothetical, please feel free to throw in your own hypothetical twists in your responses.

Situation:It is a typical resort area dive day. It could be a place like Cozumel, where diving with a DM is required by law, or it could be somewhere else where it is just customary. Before the dive, the DM gives a thorough briefing. If you don't have a buddy, one will be assigned to you. The maximum depth will be 80 feet. People stay in a group and follow the guide while maintaining appropriate buddy contact, etc. (My hypothetical case includes a briefing that leaves nothing out.)

Diver Bob has no buddy, and is assigned to buddy with Diver Jill.

The group descends to 80 feet, and the DM makes sure everyone is OK. He then begins to lead the dive. Diver Bob hangs at the very back of the group, with Diver Jill nearby. Diver Bob has no intention of diving the dive plan. He instead plans to set a personal record for depth. He sees the DM look back to check everyone, and the second the DM turns forward again, he starts to sprint downward. Startled, Diver Jill starts after him, using some sort of signaling device to try to get people's attention. The DM sprints down after him. Diver Bob is no slouch of a diver, though, and he has a head start. The DM catches him at 250 (or more) feet, grabs his tank valve, and stops the descent. It takes a while to get control. Diver Jill arrives about that time, and they begin their ascent together. Diver Bob knows he will get yelled at, but he is pleased. He got his depth record.

The ascent goes as well as it can, given that they only had AL 80s and burned a lot of air in the chase. They do not see the original group as they ascend, so they can get no assistance from them. Diver Jill, the least experienced, runs low on air first and shares with the DM. When all three are about out of air, they surface, long before they should have given the depth and time.

Imagine whatever outcome you want. The DM dies of DCS or is incapacitated to the extent that he can never work at his profession again. The same could be true for Diver Jill.

Does Diver Bob have any liability in this case? Can he be sued for blatantly and intentionally disregarding the dive plan and putting the others at risk, one of them a professional assigned to supervise him and the other just another diver assigned to be his buddy?

 

[flots am]

Does Diver Bob have any liability in this case? Can he be sued for blatantly and intentionally disregarding the dive plan and putting the others at risk, one of them a professional assigned to supervise him and the other just another diver assigned to be his buddy?

Mexico has much different standards and penalties than the US or Canada: Mexican Liability Exposure

In any case, I know you asked for lawyers and I'm certainly not a lawyer, but I'll toss in my 2 cents anyway:

Aside from the DM, these were all certified recreational divers and had no higher responsibility than self-preservation. The only thing they needed to do for Bob was wave goodbye as he descended. As a professional, even the DM had no responsibility to go after him, since the depth was unreasonably dangerous given the DM's equipment and training.

Bob was certainly selfish and uncaring, but in the end he has no responsibility to anybody but himself. The rest of the group was injured because of their own actions, not because of Bob.

flots.

 

[Peter Guy]

John, assuming you could prove the facts of your scenario (perhaps "Bob" put something on FB?), then I'd be quite happy suing Bob for intentionally endangering Jill and/or the DM -- including criminal liability. Bob knew, or should have known, that either or both his buddy and the DM would attempt to stop him AND that such an attempt would endanger all. This should be sufficient to create both the criminal intent and the civil intent needed.

Flots showed that he is correct -- he is NOT an attorney. I continue to wonder why people think they are qualified to respond to such questions under those circumstances. I know I don't know anything about a whole lot of issues (medicine and computers being two) so I refuse to respond to those questions.

Flots is also wrong when he writes "but in the end he has no responsibility to anybody but himself." That is just wrong -- as many attorneys have pointed out over and over again.

 

[flots am]

Bob knew, or should have known, that either or both his buddy and the DM would attempt to stop him AND that such an attempt would endanger all. This should be sufficient to create both the criminal intent and the civil intent needed.

So exactly how much death and injury are divers supposed to incur in an attempt to save someone else who is intentionally doing something unsafe?

I'm trained and certified to 130' I might chase somoene down to 140', since I have tables that cover it. Other than that, they'll have my best wishes for a safe trip.

Flots is also wrong when he writes "but in the end he has no responsibility to anybody but himself." That is just wrong -- as many attorneys have pointed out over and over again.

I would be fascinated to watch you argue that a diver who is trained and equipped for a maximum 130' dive has any responsibility to chase another diver down past 250'.

If that's OK, how about chasing after someone into a cave when you have no cave training? Into a wreck? Into a trash compactor? A running wood chipper?

AFAIK, there is no law in the US or Mexico that requires me to do something my training specifically prohibits and that I believe will injure or kill me.

If I'm wrong, I'd love to hear specifics.

flots.

 

[fisheater]

Flots. You're right that no law REQUIRES you to go after the hypothetical thrill seeker.

However, that's not the question raised. The question is whether that diver is legally liable for injuries / death incurred by rescuers, one having a professional duty of care and one a traditional duty of care.

I can see that a valid case could be made for liability to both a DM and a buddy who were injured / killed in trying the rescue.

The thrill seeker breached his duty of care to the DM and the buddy by intentionally abandoning them and going off on his own race to the depths without advising either of them. This action invited a rescue response. The actions of the DM and buddy were both reasonably foreseeable, as were the resultant injuries or death.

Were you the defense attorney, you'd - no doubt - argue that the rescuers were fools for risking their lives and good health in attempting to save your client.

The result would be up to a jury. A jury that would have great sympathy for the rescuers and contempt for the reckless selfishness of your client.

 

[flots am]

Flots. You're right that no law REQUIRES you to go after the hypothetical thrill seeker.

However, that's not the question raised. The question is whether that diver is legally liable for injuries / death incurred by rescuers, one having a professional duty of care and one a traditional duty of care.

I don't beleive he is.

The first responsibility of an OW diver is to keep himself safe. A buddy rescue is only recommended if the diver feels it's reasonably safe and is confident in his capabilities. 250' is far beyond anything recreational divers are trained for.

While a pro is responsible for the people he's been given, even professionals are taught that one victim is better than two and would not (or at least should not) not chase anybody far beyond certification limits because without additional training and enough gas, it's almost certain to cause injury or death.

Following agency recommendations make the entire situation moot, since nobody would have followed the "deep diver" and nobody except the deep diver would have been hurt. If everybody followed their training, there wouldn't be a lawsuit against the thrill seeker because there wouldn't be any injuries.

In fact, the "thrill seeker" could easily have been counting on well trained divers to not put themselves in great risk.

flots.

 

[vladimir]

Flots showed that he is correct -- he is NOT an attorney. I continue to wonder why people think they are qualified to respond to such questions under those circumstances.

Think of the repercussions. Hypothetical cases could end up snarled in hypothetical malpractice suits because hypothetical attorneys practiced with hypothetical licenses. Glad you nipped that in the bud.

 

[Necklinsberg]

Can we argue a couple of alternatives?

a) DM starts to descend after Diver Bob but either can't catch him, or aborts. Bob dies. DM liability for 'stopping a rescue'?

b) Diver Jill is injured or dies when she follows the buddy that DM assigned to her (& it was stressed in the dive briefing) to stay with your buddy.

c) While DM is heroically saving Diver Bob, divers Ralph, Sue, Joyce and Sam realize that they have been abandoned in open ocean. They panic & drown.

 

[demed]

The divers both signed a safe diving practices and liability release agreements.

Diver Bob most likely was in breach of contract, the safe diving agreement that obligated him to follow the Divemaster dive plan and instructions.
This breach could make him liable for the costs incurred in getting to rescue or recover him. And he's responsible for his own damages. not responsible for people risking their lives to go after him nor his buddy.

Diver Jill is out of luck, she went beyond her level of training and disattented the divemaster plan and instructions. she was supposed to stop at 60/100/130 ft turn around and go to the surface, she didn't and she was on her own.
she's responsible for her own damages.

Divemaster engaged in an activity for which he was not prepared, trained or equipped. he should have followed within margins of safety then taken care of diver Jill. however, she was out of boundary as well, so he's responsible only for his own damages.

 

[Silver_Diver]

There are a lot of issues here, specifically:
Duty of care - The divemaster has a duty of care to his divers via their payment for leading the dive. The divers also have a duty of care to the divemaster via their signing of the standard liability release form. Jill and Bob share a traditional duty of care based on whatever safe diving practices are enforced by their organization.

In court one could argue that, if Jill was trained in an organization that stresses staying with a buddy at all times and does not mention not putting oneself in danger, the training instructor or organization could be held liable.

Bob could also be held liable to Jill for his traditional duty of care based on the contract he signed acknowledging that he has been trained and understands safe diving practies and agrees to abide by the DM profile.

Bob likely also owes the DM a duty of care for the same reason. The point is that a duty of care is established, and Bob's actions are reasonably foreseeable given that Jill, not being a trained rescuer, did not understand that she had no obligation to her buddy to see to his safety beyond recreational limits. The DM, on the other hand, has been trained not to endanger themselves in order to rescue someone. Once an unreasonable depth was reached (the recreational limits) the divemaster should have stopped. At that point it can be argued that the divemaster is liable for at least some portion of his own injuries. If that portion is determined by a jury to be less than 50-51% of the cause usually Bob can be charged for damages.

In this instance what ideally should have happened was that the DM should have had the group surface (they are all trained divers capable of making an open water dive), signalled Jill to ascend, do a safety stop for extra time if she is very very deep, and join the group. The captain, once he learned of the situation, would probably radio for help, get his divers on oxygen, and possibly drop a staged tank down for Bob or the DM to use to decompress. The divemaster also should have stopped before 140 feet since he is not a tec deep expert and has no business exceeding his own training limits.

One other thing: if the other divers are killed while the DM is rescuing Bob it can be argued that the DM is not liable because the dive was NOT a TRAINING exercise. As an open water diver you are trained to conduct dives safely within the recreational limits, and you have indicated such by signing the release. The DM was unlikely to foresee the circumstance, so negligence is unlikely to be established, meaning that the DM is not liable for them. Bob, on the other hand, may or may not be liable depending on a lot of interpretations.