Norris -- as I wrote earlier -- in order for liability to attach, there must be a duty of care towards the injured party. Whether there is a duty of care depends on the facts of the situation. When diving in a group, a duty of care MAY attach or it May NOT attach. What was said, done, etc. (i.e., the facts) are going to determine that.
Richard -- just finished a review of some Washington cases -- here goes:
1. HEWITT v. MILLER, 11 Wn. App. 72 (1974) -- A scuba class went bad and the student was never found -- family sued the instructor/shop. The student had signed a waiver of liability similar to what is now common place:
Absent some statute to the contrary, the generally accepted rule is that contracts against liability for negligence are valid except in those cases where a public interest is involved....
Even a cursory examination of the foregoing language contained in the release here in question reveals that it clearly is applicable to the accident which apparently resulted in Don Franklin Hewitt's death. The failure of a diver to surface is obviously an inherent danger of the sport of scuba diving. By signing the release, Hewitt acknowledged the possibility of his own death from the "inherent dangers" of scuba diving and agreed that the respondents are not to be deemed the guardians of his safety. Given such language, contrary to appellant's position, explicit reference to "negligence" was not necessary to protect respondents under the release. Based upon the undisputed facts in the record and upon our review of the law of this state, we hold that the release in question is valid....
2. Boyce v. West, 71 Wn. App. 657 (1993) -- Mr. Boyce took an AOW class from Gonzaga with Mr. West as the instructor. During the deep dive, another student got very low on gas so Mr. West started "buddy breathing" (actually don't know if it was buddy breathing or AAS ascent) and signaled for the other two students to ascend. Mr. Boyce embolized on the way up and died. He had, of course, signed a release prior to starting the class.
Here, [decedent] certainly had the option of not taking the class. There was no practical necessity that he do so. In view of the dangerous nature of this particular activity defendants could reasonably require the execution of the release as a condition of enrollment. [Decedent] entered into a private and voluntary transaction in which, in exchange for an enrollment in a class which he desired to take, he freely agreed to waive any claim against the defendants for a negligent act by them. This case involves no more a question of public interest than does motorcross racing, sky diving, or motorcycle dirtbike riding.
Absent a claim and facts of "gross negligence" the release was valid and was an absolute bar to the lawsuit.
3. Rasmussen v. Benedetti, 107 Wn. App. 947 (2001) -- This is the most interesting case for lots of reasons. The Ct of Appeals upholds the trial court's determination that a "buddy" owes a duty of care to the "buddy" by virtue of the standard training that diving is a "buddy sport" and the "buddy" is there for the other's safety. BUT, in this case, because there was an emergency on the part of the "buddy" (i.e., he had not properly hooked up his inflator and so had to abort the dive), he was not liable for the subsequent injury to the remaining buddy (who got tangled in a rope and died).
And on this question, the trial judge's conclusions of law, while a bit inconsistent, are nonetheless reconcilable.
First, and foremost, the court concluded unequivocally that:
• "[A] scuba diver owes a duty to his buddy . . . ." Conclusion of Law 2, CP at 562.
• "Because Gene and Bonny were dive buddies on November 2, 1996, Gene owed a duty to Bonny to act in the manner of a reasonably prudent diver." Conclusion of Law 3, CP at 562.
The court's conclusions are based on its unchallenged factual finding that: "Bonny and Gene received instruction to always dive with a buddy. One reason for this was safety, as a buddy can assist a diver who encounters difficulties underwater." Finding of Fact 8, CP at 546.
Breach of a Duty of Care
[10, 11] Whether a duty of care has been breached is a question of fact. Hertog, 138 Wn.2d at 275. And the court's findings of fact on this question are instructive. The court found that "[s]tandard diving practices include performing a buddy check and self equipment check prior to each dive. If these checks had been performed, any problem with Gene's power inflator would likely have been discovered." Finding of Fact 25, CP at 555. The court also found that Gene and Bonny did not perform a buddy check before the fourth and fatal dive. Findings of Fact 26 and 47.
Given the duty owed by one diver to his or her buddy and the court's unchallenged finding of fact that those duties were not performed, the legal conclusion that Gene breached his duty to Bonny is inescapable. See Williams, 96 Wn.2d at 221 ("Where findings necessarily imply one conclusion of law the question still remains whether the evidence justified that conclusion." (emphasis omitted)). Duties are not owed in the abstract. Nor are duties owed to oneself. Here, the duty owed was to that population intended to be protected by the buddy checks. And that population obviously includes a diver's buddy-here, Bonny.
It is clear from the case, had the one buddy merely abandoned the other, he would have breached his duty of care and would have been liable for the injury.