Any Lawyers out there???

General banter about diving and why we love it.
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Tom Nic
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Re: Any Lawyers out there???

Post by Tom Nic » Sat Aug 09, 2014 9:04 am

fmerkel wrote:
Tom Nic wrote:What does the DM & Instructor insurance actually cover.


Excellent question. :popcorn:

I assume it covers your legal fees. That's how our agent describe the Umbrella Policy. Think of it as DM insurance but it covers us when our other insurances (home, car) do not.


And this would seem to make that insurance very much worth it, as I think about this whole mess.

fmerkel wrote:I agree that pondering this too long is frustrating and depressing. I did (because I had to as club Prez) for too long a time. Now, I simply don't think about it.


Ah yes, the ol' river in Egypt approach. I find that it works well. Until it doesn't.

I really appreciate your perspective and your participation in this thread.
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Re: Any Lawyers out there???

Post by coulterboy » Sat Aug 09, 2014 9:18 am

I just want to give a shout-out kudos and keep up the good work to my fellow DM's and the instructors we assist out there. As depressing as this thread may sound, if it weren't for scuba professionals who are willing to take the risk of being sued, for the love of teaching and diving, the diving world would be dead.
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Re: Any Lawyers out there???

Post by fmerkel » Sat Aug 09, 2014 10:19 am

There threat in this case is far far worse than the reality. There are few diver suits in the states. I did some pretty good looking around and could find no instance of a dive club being sued...ever.

When I say I don't think about it, that's not quite true. It's more like doing the prep to drive safely (insurance, seat belt, safe car, be alert, pay attention) then just go drive and don't fuss about the possibility of being in an accident. I try to use the same approach to diving.

I agree completely with coulterboy, this sport requires and is based on the dedication of all the folks that do the work to get us certified. But it's also the experienced folks that pick up where the instructors leave off and keep them diving and improving.
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Tom Nic
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Re: Any Lawyers out there???

Post by Tom Nic » Sat Aug 09, 2014 10:44 am

Tom Nic wrote:But it is threads like this that made me decide to suspend my dive master "instruction" halfway through. I decided that I actually like to dive and that there was nothing I was appreciably gaining by being a DM other than some potential gear discount (they certainly weren't teaching me to be a better diver) and an annual insurance bill and the potential headaches/real problems mentioned in this thread. PADI pushes people through the certification process (or at least many PADI dive shops and Instructors do) so I can be a newly minted instructor at 100 dives or so when I barely know how to dive.


Felt a little selfish then, feels a little selfish now, except that I dive with 100's of divers, new and old, and talk about what little I know with any who ask / want to listen.

I still contend that the economic realities push people into a process that is just there, not always optimum, and you don't know what you don't know.

Not sure if there is a viable alternative, however, which brings me to coulterboy's excellent post.

coulterboy wrote:I just want to give a shout-out kudos and keep up the good work to my fellow DM's and the instructors we assist out there. As depressing as this thread may sound, if it weren't for scuba professionals who are willing to take the risk of being sued, for the love of teaching and diving, the diving world would be dead.


True, true, and double true.

And I hope that the OP eventually gets an answer to his original questions.
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LCF
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Re: Any Lawyers out there???

Post by LCF » Sat Aug 09, 2014 5:25 pm

I'm not an attorney, but I have lived with one for 26 years.

The bottom line is that it is possible to file a suit against almost anyone for almost anything. However, many lawsuits of this type are done on contingency, and the attorneys are unlikely to take the case unless they think there is money to be made from it. That would require some kind of theory of liability, as well as some easily tapped resources on the part of the person you are suing. Insured DMs have the latter, but the former might be a bit difficult. Washington State recognizes diving (like sky diving, rock climbing, etc.) as a high risk activity, meaning that the onus is primarily on the individual engaging in the activity to ensure his own safety. If you could show something like the NAUI instructor who invited former students to do a 200 foot bounce dive with inadequate training and inadequate equipment, you'd be there. But simply being in the vicinity when an accident occurred? You'd have to show wilful disregard or a horribly botched rescue attempt. I think it's very unlikely that an attorney would take such a case, and as a practical matter, without an attorney, it's pretty difficult to proceed with a lawsuit.

I honestly don't know what my DM insurance would do in such a case. I should look at the policy! I know I'm insured for activities I engage in while operating as a DM, with classes, or guiding. But whether the insurance would provide me anything for a lawsuit involving a simple recreational dive I went on that went wrong for someone, I don't know (and I ought to).
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Re: Any Lawyers out there???

Post by ArcticDiver » Sat Aug 09, 2014 6:22 pm

cofford wrote:I'm not sure how it works for a DM, but as an instructor, you have a duty to act. For instance, you aren't responsible for everyone on a boat charter, but if someone is doing something unsafe, you have a duty to inform that person of that fact. You aren't required to remedy the situation, but you must inform them. You also have a duty to attempt rescue. That's not to say you are responsible for everyone, but if someone runs out of air in front of you, and you do nothing, as an instructor you can incur liability. My instructor summed it up well in my instructor class: If you are ever in a situation where an incident occurs, whether you are acting as an instructor or not, you will need to justify the actions you took, or chose not to take.

An example: You're on a boat, and two new divers are assembling gear. One of them has a problem with their octo. A more experienced diver says "hey, you don't really need that, as you can buddy breathe. Just remove the reg and plug the port, and go on your dive." In that case, I would feel obligated to tell the divers that I thought that was an unsafe idea. I would not be obligated to prevent them from diving.


Interesting comment. If the other diver or divers are not your sfudents or have a contractual relationship with you, what imposes upon you a duty to act? By the same token, under that relationship what imposes any obligation on the other diver or divers to pay you any attention? Please post the legal cite that imposes such mutual obligation.

Mind you I'm not saying it isn't a humane and courteous thing to help out another diver. Nor, that it isn't a good thing to carefully consider advice from another, presumably more experienced diver. But, a "duty" just because one party has an instructor card in their pocket, even though they are not working?
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Re: Any Lawyers out there???

Post by spatman » Sat Aug 09, 2014 10:34 pm

LCF wrote:I'm not an attorney, but I have lived with one for 26 years.


My condolences. :)
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Mac
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Re: Any Lawyers out there???

Post by Mac » Mon Aug 11, 2014 1:52 am

My DM manual says that a legal relationship exists when a DM is formally supervising other divers, and the DM has a duty of care to those which he/she supervises. According to the book, the DM is expected to act as a reasonably prudent DM would act under similar circumstances, and failure to act in that manner could be cause for a negligence claim.

Unfortunately, I think we're in a gray-area here, and there probably isn't a definitive legal answer to the situation created by the OP because of the number of variables involved. What constitutes a "formal" event? Should the victim have expected that he was being supervised? What should a prudent DM have done in the same situation? What was the victim's responsibility as a trained & certified diver to keep him/herself safe? Should other certified divers in the group have been held to a duty of care as well?

If your dive buddy has an accident, your actions will be scrutinized whether you've had DM training or not. We all manage a certain amount of risk when we dive, and need to be smart about it. I've had some good training from my certifying agency, but some of my best training has been from just getting out and diving with kind folks who've been willing to take me under their wing and show me the ropes. We need people out there that are willing to keep paying that forward and not be paralyzed by the fear of being sued.

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Re: Any Lawyers out there???

Post by thefeve » Mon Aug 11, 2014 10:02 am

Mac wrote:If your dive buddy has an accident, your actions will be scrutinized whether you've had DM training or not. We all manage a certain amount of risk when we dive, and need to be smart about it. I've had some good training from my certifying agency, but some of my best training has been from just getting out and diving with kind folks who've been willing to take me under their wing and show me the ropes. We need people out there that are willing to keep paying that forward and not be paralyzed by the fear of being sued.


I have no idea about the legal ramifications of the OP, however I like this post. I'm incredibly thankful for those who have been willing to teach me/show me the ropes of diving and pass on lessons learned etc, even not as a formal DM/instructor. Its unfortunate that we live in such a litigious time when its always someone elses fault... always. Anywho - big thanks to all of you experienced divers out there, both DMs/instructors, and just the seasoned vets that enjoy taking newbies out and getting them on the right course.
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Re: Any Lawyers out there???

Post by Norris » Mon Aug 11, 2014 10:15 am

I have received the information that I was looking for. Already had some pretty accurate assumptions as well.

Bottom line..

If I were a DM and joining a group dive, I think I would feel more comfortable stating for the record, "I am not an acting Dive Master for this dive."

Same for instructor...

As a "diver" I would do what I can to prevent someone from making a mistake that could place them or others in danger.

In closing, when I heard that some Dive Masters and/or Instructors were avoiding some fun dives due to feeling they were liable for each and every diver in the water, I wanted to poke around and hopefully find out some actual information in terms of their responsibility. I have a lawyer buddy I was able to talk to and the answer is pretty much what has been stated in this thread.

You can pretty much "attempt" to sue anyone for ANYTHING.

Many pieces need to be in place before it would even make it in front of a judge. Given the scenarios we have discussed the chances of a Dive Master or Instructor being sued JUST due to taking place in an "all are welcome" public, free, shore dive are very slim.

This is great to hear as it would be a shame that the very people that may be great buddies and have answers to some questions to the newer diver need not be afraid to join fun, group dives.

Thanks for everyone's input.
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Tom Nic
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Re: Any Lawyers out there???

Post by Tom Nic » Mon Aug 11, 2014 10:22 am

Norris wrote:I have received the information that I was looking for. Already had some pretty accurate assumptions as well.


Thanks for starting the thread. Good things to think about.

Norris wrote: ....I heard that some Dive Masters and/or Instructors were avoiding some fun dives due to feeling they were liable for each and every diver in the water....


And that is just plain sad.

For the same reason I hear many instructors who do not identify themselves as such when they are on "fun dives", particularly overseas, although there it isn't so much liability (I think) as it is the operation asking you to take an inexperienced diver "because you are an instructor", or DM, or some such.

All of life involves risk, and each of us decide how much to take on.

As others have said, I am grateful to all the professionals and dive shop owners who step up to share something that they love, and thus pass on the wonder of our underwater world to others.
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Re: Any Lawyers out there???

Post by CaptnJack » Mon Aug 11, 2014 10:42 am

Tom Nic wrote:For the same reason I hear many instructors who do not identify themselves as such when they are on "fun dives", particularly overseas, although there it isn't so much liability (I think) as it is the operation asking you to take an inexperienced diver "because you are an instructor", or DM, or some such.


I've had charters ask me to do this in the past. The first time its like "wow I must be a hot shit diver to get this awesome responsibility." Then you realize you've spent a vastly shortened bottom time of your vacation baby sitting on behalf of the charter who you're paying as well. And your enthusiasm for being an unpaid volunteer DM vaporizes (regardless of the "liability" issue). At least when I've spent real money to go someplace. As far as I'm concerned the charter can do what they were paid for and supervise as needed. Not my vacation job thank you very much...
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Re: Any Lawyers out there???

Post by Norris » Mon Aug 11, 2014 10:52 am

CaptnJack wrote:
Tom Nic wrote:For the same reason I hear many instructors who do not identify themselves as such when they are on "fun dives", particularly overseas, although there it isn't so much liability (I think) as it is the operation asking you to take an inexperienced diver "because you are an instructor", or DM, or some such.


I've had charters ask me to do this in the past. The first time its like "wow I must be a hot shit diver to get this awesome responsibility." Then you realize you've spent a vastly shortened bottom time of your vacation baby sitting on behalf of the charter who you're paying as well. And your enthusiasm for being an unpaid volunteer DM vaporizes (regardless of the "liability" issue). At least when I've spent real money to go someplace. As far as I'm concerned the charter can do what they were paid for and supervise as needed. Not my vacation job thank you very much...


Totally agree. I stayed at a dive resort in Jamaica and I TOO felt like a hotshot diver when they asked if I minded if they buddied me up with n00bs. Lasted 2 dives before I started picking my own buddies after talking to people before the dives. When paying for something, my generosity fades a bit.
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Re: Any Lawyers out there???

Post by pensacoladiver » Tue Aug 12, 2014 10:20 am

[quote="Tom Nic"]

For the same reason I hear many instructors who do not identify themselves as such when they are on "fun dives [\quote]

If not acting in the capacity, why identify yourself as such...

It's been my experience that those who do are looking for their "ego boost".

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Re: Any Lawyers out there???

Post by Tom Nic » Tue Aug 12, 2014 1:19 pm

pensacoladiver wrote:
Tom Nic wrote:
For the same reason I hear many instructors who do not identify themselves as such when they are on "fun dives [\quote]

If not acting in the capacity, why identify yourself as such...

It's been my experience that those who do are looking for their "ego boost".


Simply the card you choose to hand to the dive op.

One bad experience then use a different card.
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Re: Any Lawyers out there???

Post by CaptnJack » Tue Aug 12, 2014 1:56 pm

Put away your ego and don't show instructor/AI/DM cards unless you have too. Only show the card appropriate for the operator/charter. E.g. if its a North Carolina wreck trip then you are probably showing AOW and nitrox. On Blackbeards in the Bahamas on air, your AOW since many of their sites are ~100ft.

Some of the savy operators will interview you beforehand to gauge your experience level. In that case I would tell them the truth about all the certifications I had and relevant experience level (lying looks exceptionally bad should you end up in court later...) If they ask you to be an instabuddy, I might say yes if its a multiday trip and I will get in plenty of bottom-time anyway. If its a 2 tank charter I'd probably say no thanks.
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Re: Any Lawyers out there???

Post by Peter Guy » Tue Aug 12, 2014 10:08 pm

I love these threads. The OP asks a question -- any lawyers out there? -- and all the NON-lawyers chime in.

This is actually a pretty simple question in the Great State of Washington -- does a buddy have a duty of care towards her buddy? The answer is -- probably yes.

What does that mean? I don't know but I can guess -- such as, don't abandon your buddy; donate if requested/required; do a "reasonable" buddy check prior to entering the water; and on and on.

Tort law is pretty simple -- to establish liability one must:

A. Have a duty of care to the injured party -- and you, as a buddy, will have such a duty -- and your duty of care will depend on YOUR skill and training and the circumstances (that one is an "instructor" or "DM" may not be anywhere near as important as the actual skill and knowledge -- and whether you ID yourself as such is, well, probably irrelevant because it is your ACTUAL skill and knowledge, not merely what you say you have).

B. Violate that duty of care; and

C. As a result of the violation of duty of care, the person suffers an injury.

Waivers are important in that they can establish that regardless of your duty of care AND your violation of such, you are absolved of liability for negligence.

Now this is basic tort law and has been followed in the State of Washington.

BTW -- this "advice" is worth exactly what you paid for it.

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Re: Any Lawyers out there???

Post by CaptnJack » Wed Aug 13, 2014 12:00 am

Two friends or (non-friends or instabuddies) don't necessarily have a duty of care established between them. There is no contractual relationship by saying you will be someone's buddy. Even if that were considered an oral contract, the possible variations on that and the expectations are so broad you could drive a mack truck through there. That's probably why there's no (or very little) case law to support it. That and the pockets of any buddy are far too shallow compared to the pockets of an "insured" professional so few ambulance chasers are pursuing cases against casual buddies.
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Re: Any Lawyers out there???

Post by Peter Guy » Wed Aug 13, 2014 8:21 am

Captn Jack -- in Washington at least, I wouldn't be so sure that you don't have a duty of care towards your buddy -- insta or not -- professional or not. If you have agreed to be a "buddy" then you may well have to perform as a buddy (however that is defined). The agreement to be a buddy will probably be sufficient to establish that duty of care and the level of care will be established by one's skill, education and experience.

As far as whether one's pocket is deep enough, in most non-professional situations, if one has a general liability policy (home owners for example), the pocket will probably be deep enough AND you'll probably have funds to pay for those blood sucking defense attorneys.

YMMV

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Re: Any Lawyers out there???

Post by fmerkel » Wed Aug 13, 2014 8:30 am

Wouldn't need the blood sucking defense attorneys if we didn't have the casket chasing remorseless prosecuting attorneys. :stir: :tomnic:

That is said with the knowledge that in some cases both provided a valuable function. In the 'other cases' they are simply a greedy tool being used by grieving people. I ask where is their PERSONAL integrity?

During jury selection the prosecuting attorney asked if people thought there were too many frivolous law suits. There was almost an immediate and unanimous hands up among the 50 people being surveyed.

I think the greed on the prosecution side comes from settlements, or hope for settlements. In the Mountaineers case they made an unsolicited offer to pay all hospital and funeral costs (I learned this after the trial). The Director felt horrible about the incident. They were rejected. The lawsuit thrown at them was for 3 million $$. They offered a $100k settlement (what portion would the attorney get out of that?). Rejected > off to court. The prosecuting lawyer HAD to know they had a big probability of losing this case. They put a LOT of time and expense into this for nothing. I wonder if the client rejection was a surprise to them.
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Re: Any Lawyers out there???

Post by CaptnJack » Wed Aug 13, 2014 8:56 am

Peter Guy wrote:Captn Jack -- in Washington at least, I wouldn't be so sure that you don't have a duty of care towards your buddy -- insta or not -- professional or not. If you have agreed to be a "buddy" then you may well have to perform as a buddy (however that is defined). The agreement to be a buddy will probably be sufficient to establish that duty of care and the level of care will be established by one's skill, education and experience.


How about you find a case where its been defined, in diving or another sport with buddies, like rock climbing? Fritz found the sledding accident although its relevance is tenuous to your position. Preferably a case where the buddy wasn't grossly negligent, they just didn't perform up to their skill, training, and experience. Scuba diving is still considered by life insurance agencies as a high risk activity FWIW.

Part of the reason we don't see these cases is because they get settled by agency insurers with gag orders on the settlements. So I still believe my position about the plaintiffs aiming for big pockets stands as valid. I'm willing to be proven wrong on this point if you can find cases showing plaintiffs going after uninsured 'buddies' (any sport) and winning.
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Re: Any Lawyers out there???

Post by fmerkel » Wed Aug 13, 2014 10:22 am

I tend to thing the deep pockets thing applies. The survivors either are a$$holes going after money or just want to use money as the only bludgeon they have for retribution. The attorney most likely is only interested in one thing-money, unless the case really does have obvious 'gross negligence' that needs some justice applied.

In the Walla Walla case why would they implicate NAUI? From the Walla Walla Union Bulletin (whatever that is worth):
[The lawsuit alleges that training and materials used in the open-water course "were manifestly deficient in their creation, promulgation and application."]

They are going to have a hard time proving that. But NAUI has deep pockets, My cynical self things they are looking for a settlement.

Side note - On our jury panel we selected a newly minted (as in 2 weeks ago) lawyer as lead. She was female, young, and didn't know squat about ANY risk sports at all. She was terribly upset at the kid's death and totally sucked up all the prosecution's expert witness testimony even though the guy didn't know diddly about skiing, sledding, or snow activities. She also went a bit crazy as the votes on the side for the prosecution dwindled away. She would have NEVER changed her vote. She simply saw it from a different perspective.
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Re: Any Lawyers out there???

Post by Norris » Wed Aug 13, 2014 11:13 am

I am happy to read the debates and opinions on this subject.

Mind you that my initial question was aimed at the DM or instructor who is not even buddied with the person who had the fatal accident, just diving in the same GROUP.

I am interested in this other scenario as well though...


Carry on and thanks.
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Re: Any Lawyers out there???

Post by Peter Guy » Wed Aug 13, 2014 1:50 pm

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.

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CaptnJack
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Re: Any Lawyers out there???

Post by CaptnJack » Wed Aug 13, 2014 2:30 pm

The last one looks to be the only one relevant here since in the first two the buddy was acting in a paid professional capacity. I guess its fairly obvious if you are paying a shop/instructor that a duty has been established. In the last case its interesting that it didn't take much to break that buddy's responsibility. Other than the broken inflator, I wonder what other conditions might be sufficient? E.g. he was OOA but panicking so I left him to save my own life. Or I was narced and didn't see XYZ... Bottom line is that no non-paid casual buddy has been successfully sued.
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