University of San Francisco Maritime Law Journal, Vol. 20, No. 1, p. 75, 2008

NSU Shepard Broad Law Center Research Paper No. 08-011

Phyllis G. Coleman

Nova Southeastern University - Shepard Broad College of Law

Abstract

A common misconception is that scuba diving is dangerous; the reality is that divers are more likely to be hurt in their cars driving to the dive site than in an underwater accident. Arguably one reason the sport is so safe is the widespread, and often mandatory, use of the buddy system.

A buddy expects his partner to perform a variety of tasks, which include assisting during an emergency. However, a glaring omission in the legal literature is the important issue of what happens when a diver's failure to act results in his buddy's death or serious injuries. This article explores whether a diver (or his heirs) can recover damages resulting from his buddy's negligence.

Part I provides a succinct discussion of scuba diving. It contains a very brief history, summarizes basic training courses, and then highlights the sport's growing popularity and safety concerns.

Part II focuses on buddies. It looks at who they are, obligations the buddy relationship creates, and solo diving as a possible alternative.

Part III analyzes the few existing appellate decisions and suggests three reasons for the scarcity of cases. First, the reality is that because buddies tend to be friends or even relatives, they are unlikely to sue one another. Second, a dive partner generally does not have deep pockets, so suing a buddy often seems pointless. A third hurdle is the legal doctrine that imputes the negligence of one joint venturer to all, preventing, or at least severely limiting, any damage award.

This section also reinforces the importance of a recreational diver having a competent buddy. One reason is that most participants never advance to a high level of proficiency. Further, because many divers wait years between dives, their skills decline and their need for an experienced partner increases. As ability generally improves with practice, the person who has logged a greater number of - as well as more recent - dives is likely to be better prepared to help if something goes wrong.

Finally, recognizing that these suits are probably going to become more frequent as society becomes more litigious, Part IV recommends steps divers can take to avoid potential liability while minimizing the likelihood of injuries to themselves and their buddies: (I) Obtain insurance; (2) Draft and sign specific liability releases; and (3) Carefully select qualified partners and always properly perform the obligations of a buddy.

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