Your Liability as a Buddy

“Always dive with a buddy” — probably one of the first things you learned in your beginning scuba course. If you get in trouble, your buddy’s job is to rescue you. But what if he doesn’t? Can you, or your estate, sue?

Despite a paucity of judicial decisions, the question is more than hypothetical. Legal actions against buddies by divers or their heirs have been filed and sometimes settled for large, although undisclosed amounts. Courts have shown a willingness to entertain such claims.

So, is there anything you can do to ensure that putting on a wetsuit doesn’t lead to finding yourself on the wrong side of a lawsuit?

As is true in any tort or negligence action, to recover against a dive buddy, a plaintiff must prove: (1) duty, (2) breach of that duty, (3) proximate cause (which means the injury was a direct consequence of the buddy’s actions or omissions) and (4) damages.

Judges who have faced the issue conclude the buddy relationship itself establishes a legal duty. Litigation experts such as Robert K. Jenner (Silver Spring, Md.) caution that by agreeing to be a buddy, you take on a variety of roles: responsibility for (1) checking and monitoring equipment before and throughout the dive, (2) creating and diving a safe plan, (3) sharing air if needed, (4) staying close, (5) untangling a partner caught in debris and (6) getting both of you to the surface in case of an emergency. As a buddy, the person suing must prove that your negligence caused his injury.

The latest legal ruling

Rasmussen v. Bendotti, the first reported appellate opinion directly pertaining to buddy diving, was decided in August 2001. Although negligent, Eugene Bendotti escaped responsibility for his buddy’s death — who happened to be his wife. Her children from a previous marriage brought an action against their stepfather of five years.

Bendotti did neither a self nor buddy equipment check before their fourth dive of the day. As a result, he didn’t notice until he was in the water that his power inflator was not connected to his BC. He immediately surfaced . How ever, his wife, perhaps while ascending herself, got caught in a rope at 40 feet and was unable to disentangle herself and drowned.

Using a legal doctrine that relaxes the required standard of care for an individual faced with an emergency, Bendotti denied accountability. Yet the Washington court explained that this protection is not available to a person who, like Bendotti, created the dangerous situation himself. Therefore, the finding that he breached his duty was “ inescapable . ”

While responsible, Bendotti avoided liability because the connection between his mistake and his wife being trapped was “too attenuated.” Why was the connection insufficient? Expert testimony is frequently important and Jon Hardy, a widely published scuba professional, made three points: (1) no relationship existed between the error and Bonny Jo Bendotti’s entanglement, (2) the loss of buddy contact could not be tied to her death and (3) the proximate cause of her death was that she was not carrying a knife.

Further, the judges noted it was unknown how Mrs. Bendotti became entangled, why she was unable to free herself and whether a non negligent buddy could have saved her. The unknowns were inadequate to establish proximate cause.

Other lawsuits have reached similar results. For example, in 1998 Ta i Wilkerson, an experienced diver who had previously been as deep as 415 feet, died searching for the Spanish ship Juno and its millions in treasure off the Virginia coast. At 170 feet, Wilkerson was attaching a tether to the anchor line when his buddy, Mike Fantone noticed his partner was entangled in another line. “He was really breathing hard, oh Lord, and struggling with the line,” Fantone said.

After untangling Wilkerson, Fantone signaled to his friend to calm down, then noticed his regulator had come out of his mouth. Fantone replaced it. “He tried to take a couple of more breaths. But right after that, I looked in his eyes, and they got all dilated, and he stopped breathing. After that, the only thing left to do was to send him to the surface . ” There was no time to worry about the hazards of ascent without decompression, and after sending Wilkerson up, Fantone ignored the risk to his own life.

Despite attempts by crew members to revive Wilkerson, and the arrival of the Coast Guard, he died en route to the hospital. His widow sued Fantone, among others, claiming they were negligent.

The Norfolk medical examiner determined the 41-year-old airplane pilot, apparently in excellent health, had suffered a heart attack. When, without explanation, the plaintiff subsequently dropped her legal action, defendants’ attorneys asserted the dismissal proved their clients were blameless. “There was no settlement and no money changed hands . ”

Overseas courts also agree that buddies owe a duty to each other. However, a judge in England concluded losing contact is “a common hazard of diving.” Consequently, because “no more and no less than the taking of reasonable care” is required, Peter Milner was not at fault for his buddy’s death. In March 1995, the two — who had logged more than 100 dives together — were diving the wreck, SS Sevilla, off the English Coast. After 15 minutes, Dominic Rowbottom indicated the pair should return to the surface. But, when they cleared the wreck, Rowbottom cut his reel line and began a free ascent. At 10 feet, he suddenly descended rapidly, feet first. Despite having lost sight of Rowbottom due to poor visibility, Milner went back down in an unsuccessful attempt to affect a rescue.

The cause of death could not be established because the body had been in the water nine days when found, so the court looked to experttestimony. A diving expert said Milner should have guided Rowbottom to the surface in case he lost consciousness. He also criticized Milner for undergoing a full decompression, for failing to give a distress signal upon surfacing and for suggesting Rowbottom be given five more minutes to come up.

Another expert explained that because his buddy did not give a distress signal, Milner had no reason to suspect anything was amiss until Rowbottom began to sink. By then, it was too late. He also criticized Rowbottom, a relatively inexperienced diver, for attempting a 135- foot dive without building up to it and for using poorly functioning, unfamiliar equipment.

Acknowledging the difficulty of synchronizing a free ascent, the court denied the widow and childrens’ claims, but inexplicably ordered Milner to pay half the costs.

Opinions from related cases may shed more light. For example, in In re Adventure Bound Sports, a trio “formed a dangerous, three-person buddy team in which one diver was to separate from the other two, cont r a ry to PADI procedures.” As their own defective plan was “a significant contributing factor to their deaths,” the damage award received by the decendents’ estates against the M V Seahorse’s owner and charterer was reduced by the percentage of fault attributed to their negligence.

Similarly, in Lyon v. Ranger III, a federal case decided under general maritime law, the court found that Thomas Lyon surfaced way beyond the statutory maximum distance from his dive flag and contributed, along with his two partners, to their “seriously flawed” plan. In Massachusetts waters, another boat struck and killed Lyon. As a result, he was found 45 percent responsible for his own death. The court suggested that, because Lyon didn’t control the others, and, was required to do more to protect himself, his “negligence vis-a-vis his own safety ... exceeds theirs.” Moreover, the judges concluded that even if they were wrong about decedent’s own responsibility, the negligence of the other divers should be attributed to Lyon because of the “common control of the diving plan.”

Suing buddies

The scarcity of reported cases against buddies is not surprising. Most buddies simply don’t have enough money to justify the costs. Generally, course providers, boat operators, shop owners and equipment manufacturers have the “deep pockets,” making them more likely targets.

In addition, buddies are usually just that — friends or even relatives of the injured or deceased diver — people you wouldn’t expect to sue. (Of course, there can be exceptions when children or an estate steps in.)

Courts may also reject these cases based on the legal theory of assumption of the risk (e.g., by participating in certain ventures you accept responsibility for known hazards typically associated with such endeavors). Thus, in Dao v. Shipway, an unpublished decision, a California judge granted summary judgment to a buddy because the friends were “engaged in a voluntary, active sport with inherent risks” of which the victim was aware. Although Doug Shipway (1) had been diving with his partner for years knowing he was not certified, (2) provided him tanks, (3) failed to follow the buddy system and (4) did not go back under water to search and waited an hour to call for emergency assistance, he was not responsible for his buddy’s death.

Another explanation is that lawyers are reluctant to take these cases. “Juries just don’t want to hold buddies liable,” says Alton J. Hall, Jr., an attorney who specializes in diving litigation. This is especially true if the buddy tried to do anything to help, “no matter how stupid.”

Johnson v. Northwest Sport s Divers, Inc. is illustrative. Tw o friends, who learned to dive in the same course, dove to 80 feet, exceeding their basic open water certification. They neither conducted an equipment check nor monitored each other’s air supp l y. At some point, Russell Johnson indicated he was out of air. He and William Feely attempted to buddy breathe but, contrary to their training, they did not hold on to each other as they ascended. After the decedent dropped the regulator, rather than retrieve it as he had been taught, Feely panicked and shot to the surface. Johnson drowned. Despite his actions falling “below the standard of practice for certified recreational scuba divers,” when Johnson’s estate sued, Feely was not named as a defendant.

Rick Lesser, a PADI board member and attorney whose practice consists of diver negligence cases, warns that although the definitive list of buddy legal obligations has yet to be written and there are few cases so far, in today ’s litigious society, negligent divers run the risk of being sued. He advises the best way to protect yourself is “if you agree to be a buddy, be a buddy. ”

Finally, while uncertainty about the probability of someone filing a buddy lawsuit exists, everyone seems to agree that gross negligence, or egregious violations of the standard of care, mean you could be facing a large verdict .

What can divers do?

• When you agree to be a buddy, you must act as a reasonably prudent, certified diver. Be conscientious yourself and choose your buddy carefully.

• If you find yourself on a boat being pressured to accept a partner you neither know nor want, don’t give in. Vessel operators may push to make sure every one is paired because, as a federal court in Hawaii explained in Tancredi v. Dive Makai Charters, “it is a breach of the standard of care in the recreational dive industry for a dive charter company to conduct a dive without assigning ‘buddy’ teams.” Similarl , in Kuntz v. Windjammer“ Barefoot” Cruises, Ltd., although the deceased was negligent in drinking and taking drugs the night before the accident, the court held the cruise line liable for her death because if their employee “had instituted and maintained a partner system during the deep dive, as required by the practice and standards of the scuba-diving instructors and [NAUI] ... this mishap would not have occurred.” Notably, however, in Madison v. Superior Court, a broadly worded release relieved an instructor and training course from liability for their “failure to follow the ‘buddy system’ rule.” Possibly signing such a waiver would convince a boat operator to allow you to dive solo. If not, it could be a serious mistake to agree to the buddy he gives you. Your moral and legal responsibility to a stranger will probably be the same as to a close friend or even a family member, but a person who doesn’t know you is much more likely to sue if something goes wrong .

• It is important to recognize that a buddy who is not competent endangers your life as well as your bank account. In one survey of approximately 200 divers, 15 percent of the respondents said their greatest fear was a “bad buddy. ” Indeed, some experienced divers, unwilling to assume the responsibility and potential liability, have turned to solo diving. While this might sound blasphemous, one group, Scuba Diving International, is currently offering a certification allowing graduates, who must first satisfy stringent requirements, to dive alone. And some folks say most people are really solo divers — “they are just in the same ocean at the same time.” For example, one study recently reported in Undercurrent revealed that in 80 of 100 fatal cases, the victim was not with another diver at the time of thUndercurrent e accident. However, in only 21 of these was the diver deliberately solo.

• If you truly want protection, purchase personal liability insurance. Assuming you decide to take that step, a suggestion: first check your homeowners policy. It might provide coverage. Apparently homeowner insurance policies are used to paying settlements. But acautionary note: people with insurance are more likely to be sued. In other words, by having coverage, you become a deep pocket.

Phyllis Coleman, Professor of Law, Nova Southeastern University, Ft. Lauderdale, Fl., is an active diver. She is the coauthor of Sports Law: Cases and Materials ( American Case book series). Last year she wrote for Underc u rrent on the legality of releases divers must sign before diving.