So the newsbot spits out this article from the Orange County (California) Register: "Diver's widow blames his 'buddy'" (free registration required). CDNN reprints it here. This is related to a dive fatality that occurred on a shore dive in Southern California in 2003.
Now one of the things I will not do on this blog is dive accident "analysis". I find it ghoulish and there's enough of that crap floating around on the different scuba discussion boards for those who are interested.
What I want to do however, is explore the concept of buddy liability. I would hate for the perceived potential for liability to cause someone to abandon the buddy system altogether. To my knowledge, there have been very few (if any) instances where a negligence suit has succeeded against a dive buddy.
I will begin with the caveat that I'm no lawyer and all this information is derived from public sources and the legal materials I have accumulated as a businessman and dive instructor. Unfortunately, the text of the lawsuit is not available online so I can only rely on the article to get an idea of the complaint. Both the plaintiff's husband and the defendant were members of the South Orange County Dive Club and a more detailed account of the accident can be found in their November 2003 newsletter (.pdf).
So the part of the article I want to explore is this:
The wrongful death lawsuit alleges that Shatz didn't die because of equipment malfunction or because he panicked after a medical problem. Feldman failed in his role of dive buddy, a "special relationship" that required him to come to the aid of his diving partner, the suit says.
But when the complaint gets into the following accusation, we get beyond the negligence scope I wish to explore and the tort becomes a willful harm (which has very different legal implications):
Palmer-Shatz believes Feldman removed some of Shatz's equipment so he would drown, the suit says. That would prevent Shatz from telling authorities about a hit-and-run that Feldman's daughter had been involved in, the lawsuit alleges.
Wow! Although there were no criminal charges filed, remember that the the standard for proof in a civil case is "a preponderance of the evidence" not "beyond a reasonable doubt" as in criminal cases. From the article, it really sounds like this is the main thrust of the complaint. But it could also be an instance of a journalist latching onto the "juiciest" tidbit.
Back to the negligence claim. From here, I devolve into the legalese....this might bore you to death. Please avoid operating heavy machinery while reading this...
In order to succeed in a negligence suit, the plaintiff must show that ALL of the following four conditions occurred:
1. The defendant had a duty to the victim.
Absent a legal duty (such as instructor-student, lessor-lessee, charter-passenger, etc.), negligence claims generally must show that a duty of care existed between the defendant and victim. This duty of care is generally defined as maintaining a level of conduct that a "reasonably prudent diver" would have done in the same circumstances. Interestingly, this duty (by itself) does not include an obligation to aid someone in distress. However, a duty to rescue does occur when the defendant's actions caused the victim's situation. And once a rescue is undertaken, a duty of care exists to not worsen the victim's circumstances (this is why so many states have "good samaritan laws"). The assertion by the plaintiff that the defendant's role as a dive buddy was "a 'special relationship' that required him to come to the aid of his diving partner" has generally not been supported in the courts as extending beyond the general duty of care. [But we're talking about California here! So who knows...]
2. That the duty was breached.
Once the duty has been defined, the next component of negligence is to prove that the duty was breached. This breach of duty can either be a negligent act that a reasonably prudent diver would not undertake or an omission of something that would be expected of a reasonably prudent diver. A violation of a law would automatically create a breach of duty. If the negligence claim becomes the primary thrust of this case, the plaintiff's attorney will spend a considerable amount of time on this component in order to build a shopping list of breaches.
3. That breach of duty was the proximate cause to the alleged harm
In simple terms, the harm to the victim must be shown to have been the natural and probable consequence of the breach of duty. Was the injury a reasonably forseeable consequence of the breach? There are so many variables possible for this component that the same set of facts can lead to vastly different outcomes, depending on the jurisdiction.
4. There must be legally recognizable damages.
Ummm....death qualifies.....so does physical injury....but pain and suffering depends on the jurisdiction.
The failure to meet ANY of these criteria means that legal tort of negligence did not occur.
What do you think? Hopefully this helps alleviate some concerns about buddy liability.
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