Do Divers Owe A Legal Duty To Rescue Their Dive Buddies?
Does A Dive Buddy Owe A Legal Duty To Rescue His Buddy?
Recreational scuba divers are taught to always dive with a buddy for safety. A dive buddy is another scuba diver who presumably will stay nearby throughout the dive and be there at the diver’s side to help in the event of an equipment failure or other problem. Within the limits of a diver’s training and ability, it is also assumed the dive buddy will attempt to aid or rescue the other diver in the event of an emergency. Rescue techniques are the focus of numerous recreational diving courses, starting with the basic open water class, in which divers learn how to share their air supply with an out-of-air buddy, through more advanced courses devoted entirely to the subject of rescuing divers, whether they are buddies or strangers.
The entire system of recreational diving seems to be based on the assumption that a diver will come to the aid and rescue of his buddy. But what if a diver bails out on his buddy? Can a diver whose failure to aid his buddy contributes to the buddy’s death or injury be held legally responsible under Texas law?
The answer depends upon whether being a dive buddy constitutes a “special relationship” under Texas law. And the answer is not clear under the law. I would argue, however, that in general, no such legal duty should exist. The duty should be a moral duty, not a legal duty. There may be special factual circumstances in which a special relationship should be imposed on dive buddies, but in general, to do so would cause more harm than good to the sport and its safety.
Legal AnalysisTexas law imposes no general duty to come to the rescue of others who, through no fault of the would-be rescuer, are found to be in peril. For example, a motorist who happens to witnesses a pedestrian having a heart attack on the sidewalk is under no legal duty to stop and provide assistance. See Howell v. City Towing Associates, 717 S.W.2d 729, 733-34 (Tex. App. – San Antonio 1986, writ ref. n.r.e.), citing Section 314A of the Restatement (Second) of Torts.
This is true even if the person realizes that action is necessary on his part for another’s aid or protection, see Section 314A of the Restatement (Second) of Torts. The Restatement gives an illustration of a strong swimmer who sees another swimmer floundering in deep water and obviously unable to swim. The strong swimmer is under no duty to rescue, because the other swimmer has fallen into peril through no conduct of the strong swimmer. It would not even matter if the strong swimmer hated the other swimmer and failed to rescue him for that reason. If there is no duty to rescue, the reason for failing to rescue is irrelevant. Id.
Thus, it should be clear under Texas law that one diver does not owe a duty to rescue some other distressed diver who he happens to come upon who is not his buddy.
But the analysis does not end there. An exception to the no-duty-to-rescue doctrine is when there is a special relationship between the victim and would-be rescuer. See Howell v. City Towing Associates, 717 S.W.2d 729, 733-34 (Tex. App. – San Antonio 1986, writ ref. n.r.e.). A legal duty to provide aid to others can imposed by certain special relationships, such as the relationship between a common carrier and passenger, employer-employee, doctor-patient, attorney-client, parent-child, hirer-independent contractor, and parties to a contract. A person who fails to meet this duty can be sued for negligence if his failure causes harm to the other person.
In Howell, the court found that a tow truck operator had a legal duty to provide aid to a passenger whose car he was towing, because by transporting the passenger, he was acting as common-carrier, which is one of the special relationships recognized by the law. The court held the tow truck company could be sued for the driver’s failure to take the passenger to the nearest hospital when he suffered a heart attack while riding in the tow truck. Howell, 717 S.W.2d at 733-34. In other words, the tow truck driver had a duty to rescue his passenger because the tow truck was a common carrier.
So, we know if dive buddies have a special relationship, there is a duty to rescue. There are, however, no reported Texas decisions deciding whether the relationship between dive buddies constitutes a special relationship.
If this issue is ever presented to a Texas court, it will have to apply a risk versus utility test to determine if a special relationship exists. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). The court must balance several interrelated factors. It must weigh the risk, foreseeability, and likelihood of injury against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Id. Another factor is whether one party had superior knowledge of the risk or a right to control the actor who caused the harm. Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993).
Factors such as risk, foreseeability and the likelihood of injury weigh in favor of imposing a special relationship. The risks of failing to aid a dive buddy include serious injury or death, the serious injury or death is foreseeable, and the likelihood of injury or death from failing to aid or rescue is great. For example, a diver who refused his buddy to share air with a buddy who signaled he was out of air is surely aware that his refusal is risking his buddy’s death.
In contrast, factors such as the magnitude of the burden of guarding against injury and the consequences of placing the burden on the rescuer weigh against finding a special relationship. While some aid or rescue situations impose no real burden, other rescue situations, like that of a diver in panic, can place the would-be rescuer in real danger. Likewise, racing after a buddy who had descended too deeply, in an effort to stop his further ascent, can surely risk killing both divers.
The consequence of imposing a special relationship on dive buddies could be to discourage the practice of dive buddies altogether, which would destroy much of the camaraderie and social nature of the sport. Typically, in dive clubs and on dive boats, divers will readily pair up with other divers in order to form buddy groups as well as to be sociable. Fear of lawsuits could only discourage divers from being buddies, and would make it more difficult for less experienced or capable divers from finding a buddy at all.
The imposition of special relationship liability on dive buddies would tend to chill the social aspect and make it harder for divers to find buddies. This would tend to encourage more solo diving, which is regarded as an unsafe practice for most recreational divers, who lack the necessary experience, training and redundant equipment for solo diving.
Granted, fear of lawsuits might also discourage the practice of “same ocean” dive buddies. These are dive buddies who make no effort to stay near and monitor their buddy, and whose “same ocean” proximity defeats any real safety value. Imposing legal liability on such buddies might result in a small incremental improvement in dive safety, but the chilling effect on the social nature of the sport would outweigh this small incremental improvement.
The factor of superior knowledge is the one that poses the biggest dilemma. On the one hand, an experienced dive buddy would seem to owe a duty to look after the less experienced buddy. Indeed, in many recreational diving situations, inexperienced divers will be teamed with an experienced diver just for this reason, and worried family members on shore may even be counting on the experienced diver to keep a close eye on the inexperienced diver. In such circumstances, to abandon the inexperienced diver in a crisis would be reprehensible. On the other hand, imposing a special relationship simply because one diver was more experienced would tend to discourage experienced divers from taking the less experienced divers under their wings. That would reduce the overall safety of the sport and make the journey from inexperienced to experienced diver a more perilous and lonely journey.
There is one “buddy” situation in which the law is clear. Under both statutory law and the “marine rescue doctrine,” a diver who is also the operator or captain of a boat owes a duty to provide aid to a buddy who falls overboard or who is otherwise injured in a collision or casualty, if he can do so without serious danger to his vessel, crew or other passengers. Tex. Parks and Wildlife Code § 31.104; Ricardo N, Inc. v. de Argueta, 907 S.W.2d 423 (Tex. 1994). But this duty arises out of the diver’s status as a boat operator, and not out of his status as a dive buddy.
In conclusion, there is currently no answer to this question under Texas law. Should the question arise, the outcome will probably depend heavily on the facts of the case.
Copyright 2007 by Andy Simmons
Comments
I'd been looking into solo diving and the law, and stumbled across this article. Makes very interesting reading for any would be Buddy divers, who now may want their erstwhile partners to sign a buddy diving disclaimer before getting wet.
Thanks
Posted by: Paul Tomo | July 3, 2009 2:23 PM
Thanks for your comments, Paul. Recently I was speaking with another scuba-diving lawyer, and he informed me the general trend in some other states is to impose a legal duty on dive buddies. Whether Texas would follow the examples of other states is hard to say, but this does tend to change my analysis somewhat.
Posted by: Andy Simmons | August 12, 2009 7:16 PM