Liability with buddies

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catherine96821:
hmm. interesting. Can I go "inactive" and "undo it", do you happen to know?

Catherine, I owe you an apology. The last time we were discussing this was in an ïnsta-buddy/solo diver thread when you mentioned wanting to avoid liability. At the time I thought you were being a bit of an alarmist, the fact that you are a DM totaly slipped my mind :11doh:.

I was thinking that in the long term I might head down the DM road, but now you've got me re-thinking that now. I dive with my wife as my primary buddy, so getting sued by her family (my step kids) is not really a worry. Does getting the DM certification really open one up to risk that much. I would have thought that you would have had to be actively engaged as a working DM on the dive in question to be exposed to this risk....Again something to think about.

Now I see why you would rather solo.

Cheers!
 
Storm, the funny thing is, I don't dive alone much. What I want to do, is dive with someone who won't sue me (if we both say we are solo...). I like to reserve the option to wander off if I see something I want to see or shoot. That is pretty much all I want.

Basically, from what I have seen, if there is a bad outcome, someone is sued.

If I am on the boat I will be a better target than most of the DM's on the boat. Like Andy says, it costs money to defend yourself. I was taken to court once by an illegal alien claiming 8 years of overtime. Perfectly legal for her to use my government (the labor board) to sue me even though she was illegal. I am not immpressd that the legal system works too well anymore. I have lost confidence that things work the way they are supposed to. That's okay, I can make adjustments.

I became a DM because I want to be able to call my own shots and not have an operator telling me how to dive. I go somewhere and say BTW, I am doing this and this, and they say fine. That is the DM rating value to me. I have led dives for fun in exchange for boat seats. Now that I am interested in photography, I don't really have any interest in diving without the camera and you really cannot do both, no matter what people say.

I would advise you to do the course if you are inclined. Then, as long as you do not "work" as a DM, I think your exposure is minimal. Once you are a DM, my advice is not to buddy randomly, it is just too dangerous. IF you are not a DM, insta-buddy is probably not too risky financially. Yes, I am a single parent and I just don't want to be on the hook, especially when I am asking for/ getting nothing in return.
 
As others have noted, there are both legal and practical aspects to any discussion of potential liability. As a legal matter, being proximate when someone gets dead is unlikely to trigger liability in itself. Like Andy said, you need to have a duty toward someone in order to be liable in tort. For the kind of stuff we're talking about, this is generally going to be a theory of negligence. To prove negligence, the injured diver is going to have to prove duty, breach, causation (actual and proximate,) and damages.

The duty in negligence is the duty to behave "reasonably." What it means to be reasonable changes with the circumstances. For instance, someone trained as a divemaster may have a different standard of what is reasonable than someone who is not trained as a divemaster. A general divebuddy standard of care probably means keeping an eye on your buddy, being aware of them generally, etc. - good buddy skills stuff, like they teach you in OW class.

You breach that duty by behaving unreasonably. No mystery there - fail to do what is reasonable and you have trouble.

Causation is complicated - first, plaintiff must prove "but for" (or "actual") causation. That means that they must prove that the breach of duty was one of the actual causes of the injury, that the injury wouldn't have happened if the breach of duty hadn't happened. Then they have to prove "proximate" causation. That usually means something like proving that the injury was the foreseeable result of the breach. For dive accidents, this is going to be a big part of the case. How do you prove that, but for your dive buddy's failure to stay within line of sight, you would not have panicked and swam 100' to the surface in 2 seconds, thereby subjecting yourself to DCS?

Finally, you have to prove injury. Again, this has already been discussed - the lung rupture or whatever is the injury.

After you get the prima facie case (the four parts I just talked about), you move to defenses. Assumption of the risk is still a defense in most states - basically, if the injured person assumed the risk of a dangerous activity, they can't blame someone else when the activity injures them. Comparative fault is a partial defense in some jurisdictions - to the degree that it was the injured person's fault that they got injured, they can't recover from you. In North Carolina (I believe it is the only remaining state,) contributory negligence is a complete defense - if they are partly at fault, they can't blame you _at all_.

In many jurisdictions, there are "Good Samaritan Laws." Most of these say something like - if you try to assist in an emergency, and do so to the best of your ability, there is no liability for injuries that result from your valiant efforts. Thus, in many jurisdictions the fact that you dragged your buddy to the surface too fast when it looked like he had a problem won't subject you to liability, if you were trying to assist in an emergency.

Contrary to popular opinion, I've found courts to be really receptive to motions to dismiss on truly stupid claims. And in some jurisdictions (blessedly, the one where I practice,) the courts put some really good teeth into the rules that require pleadings to have a factual basis. Thus, many lawyers won't risk taking stupid cases, because they'll get their rear-ends handed to them in fines and sanctions. As a practical matter, out of all of the dive accidents that occur in a year only a minute number result in any lawsuit, and many of those state an actual basis (although they may still be defensible).

In other words, if you keep your head about you and you behave reasonably, you almost certainly will not get sued just for being a dive buddy.

If, on the other hand, you do get sued... I'm happy to refer you to a good lawyer. :)

Standard disclaimers apply - this isn't legal advice (that much should be obvious). I don't know the facts of your case. I don't know the law of your jurisdiction. Yada yada yada.
 
I was sued once for providing basic first aid at a car accident, even though california has a shield law. The plantiff brought suite against everyone involved, including the police and fire department. Anyone can file suit anytime.

The case was thrown out at the first hearing.
 
Question:

Must I have a contractual relationship (money exchanged) to have this "duty" to another diver?

Could a DM be liable for giving "advice" on a boat that was faulty and the cause of another diver having a bad outcome? (damages, injury)?

I need some very concrete answers or I am not confident about remaining DM.

(or is this where the disclaimer starts?) ... see my point?

and about that OJ thing...
 
I think i'm in the same boat as Catherine...the entire reason that I becoming a DivCon is so that I can do my own thing and dive without a buddy. There is no reason for me to go into the water without my camera. I have absolutely no interest in teaching or guiding or giving advice.

There is a boat dive....I sign up to go with no buddy....I talk to nobody (cant speak Chinese anyway).....i dont pay attention to the dive plan.....everybody goes into the water and heads north....I head south....dive over and somebody is dead on the boat....Do I get sued?
 
Hence why I dive with the same guys i have always dive with. And when the the PADI DM/Instructor (Dive God as I call him) dives with us, its a know rule. We all served in the military together and have know eachother for years. So its more of a gentlemans rule, there is not litigation we all take responsibility for ourselves.
So i am a fireman, the house next door cathches on fire, am I required to do anything? And if I do and somebody dies am i responsible? Ethics class I took asks this question, kinda fits.
 
catherine96821:
Must I have a contractual relationship (money exchanged) to have this "duty" to another diver?

Could a DM be liable for giving "advice" on a boat that was faulty and the cause of another diver having a bad outcome? (damages, injury)?

depends on the law of your jurisdiction and how the judge ultimately reads
that law (and if you appeal, how the appeals court reads the law)

be aware that a competent attorney will know exactly what to plead, and will
craft a complaint that will satisfy the legal requirements, if at all possible.

quick answers based on Florida law:

1. no, you don't have to have money change hands to have a duty. a buddy has a duty of care to another buddy. this duty is probably low, nothing close to the duty
a DM or Instructor owes a customer or student

(for example, as a driver, you have a duty of care to drive according to the laws of your State. if you breach that duty, and hurt someone, you have breached your duty of care, even though he's a total stranger).

2. can you be liable as a DM for bad advice? this is tricky, but the answer is
probalby yes. As a dive professional, you have a duty of care to others not to
give them advice that will hurt them. if you give bad advice, you've breached
that duty.

again, this is not inteded as legal advice. please consult an attorney licensed to
practice in your jurisdiction and familiar with this area of law.
 
Andy - some things for your consideration:

Your first point: A buddy has a duty to act as a reasonably prudent diver. A DM/Instructor has a duty to act as a reasonably prudent instructor/DM as well as any duties arising out of contractual relationships. As your training increases, so does the expectation that you will be able to provide competent assistance.

Assumption of Risk and Open and Obvious Danger seem to be the leading defenses to any lawsuit based on a scuba diving incident. These are almost always targeted at the dive professionals, and they are almost always defeated because of the Assumption of Risk and Liability Release that dive professionals insist you sign.

Second Point: Your bad advice still has to actually and proximately cause the injury to the diver. If you suggest they don't need to dive with a buddy and don't need an alternate air source, you could be liable, but if you suggest a specific charter boat to go out on and they get hurt, the actual cause of the incident will most likely be too attenuated from that advice and you will not be liable.

This all comes from my limited research into these issues, and I'd love to hear any modifications or corrections you have.

Also - this is not intended to be legal advice for any person or entity. Please consult a lawyer in your jurisdiction for legal advice.
 
one of the problems of anticipating legal outcomes is that
the facts are everything. everything depends on exactly what happened.

since we're giving opinions as to possibilities and all the facts are not gelled
yet, our opinions are by nature bound to be incomplete or overbroad.

AOR and OOD are not complete defenses to negligence. they just mitigate
the percentage of fault as to the Defendant (and increase that of
the Plaintiff), now that most states have gone to comparative negligence.
 
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