Just how strong a contract is
an agreement to buddy with someone?
If a diver gets injured or dies
and his buddy fail to help, is the
buddy liable? The Superior Court
in the County of Los Angeles was
asked to adjudicate that issue and
issued a ruling in December. Here
is a summary of that case.
* * * * *
Katherine Sentner died while
scuba diving 60 feet below the surface
at Big Rock near Santa Cruz
Island. Her children (collectively,
we'll call them Yace) sued Dennis
Dushane, who was diving with
Sentner at the time of the accident.
Yace alleged that Dushane
and Sentner agreed to be each
other's buddy. During their second
dive, Dushane separated from
Sentner to obtain his bearings,
leaving her at 60 feet. When
Dushane descended, he could not find Sentner until he felt her reach
for his regulator.
The complaint alleged that
Dushane "then negligently panicked
and abandoned the decedent,"
ascending to the surface
without sharing his air or assisting
her to the surface, as is required of
a dive buddy. Dushane had sufficient
air to share with Sentner, and
if he had not "negligently panicked"
and abandoned her, she
would not have drowned. Yace
argued that under the rules of
scuba diving, Dushane owed
Sentner a duty to share his air.
Dushane violated that duty, recklessly
increasing the risk of death
to Sentner.
The court said that a participant
in an active sport breaches a
duty of care to a coparticipant only
if he or she "intentionally injures
another player or engages in conduct that is so reckless as to be
totally outside the range of the
ordinary activity involved in the
sport." Thus, in general "it is
improper to hold a sports participant
liable to a coparticipant for
ordinary careless conduct committed
during the sport ..."
The Superior Court cited
examples of conduct to which liability
was properly applied, such as
a basketball player who wantonly
assaulted an opposing player or a
baseball catcher who deliberately
and without warning hit a batter in
the head with his fist. The cases
also cite the reasoning underlying
the application of a limited duty of
care in sports situations: "vigorous
participation in the sport likely
would be chilled, and, as a result,
the nature of the sport likely would
be altered, in the event legal liability
were to be imposed on a sports
participant for ordinary careless conduct." The court did not
decide whether a comparable limited
duty of care appropriately
should be applied to other less
active sports, such as archery or
golf. Being struck by a golf ball is
an inherent risk of the sport and
failure to yell "fore" is not reckless
or intentional conduct.
It is clear Dushane's conduct
-- his panicked ascent to the surface
without assisting Sentner --
did not breach a legal duty of care.
This is because a diver's panic is an
inherent risk of the sport of scuba
diving. Moreover, Dushane's conduct,
while unfortunate, cannot be characterized as careless, let alone
reckless or intentional.
The court said that it entertains
no doubt that the conduct
alleged to have caused Sentner's
death -- a diver's panicked ascent
to the surface instead of sharing
his air with a dive buddy in distress
-- is an inherent risk of scuba diving.
In scuba diving, the participant
is under water and is entirely
dependent upon her equipment
for a supply of air and upon her
fellow diver in an emergency.
Circumstances may arise in which
a diver's negligent acts might
"increase the risks to a participant over and above those inherent" in
scuba diving, thus giving rise to a
duty of due care. However, the
same cannot be said for conduct
during an underwater emergency,
such as occurred in this case.
Unlike most other sports, the possibility
of a life-threatening emergency
in scuba diving is apparent
and, indeed, anticipated. Just as an
emergency problem with an air
supply is an inherent risk of the
sport, so also is the reaction to that
emergency of one's diving buddy.
Yace argues that the abandonment
of Sentner by her diving
buddy "is not part of the sport of
scuba diving," and that Dushane's
conduct "increased the risks inherent"
in scuba diving. While these
statements may be literally correct,
they miss the point. The issue
posed by Yace's complaint is
whether Dushane's alleged conduct
-- that he "negligently panicked
and abandoned the decedent"
when he felt her reach for
his regulator -- is an inherent risk
of scuba diving.
It may not be appropriate to
describe a diver's running out of
air as an "ordinary activity"
involved in scuba diving.
Something out of the ordinary
obviously occurred, causing
Sentner's urgent need for air, and
there was no allegation that
Dushane in any way caused or contributed
to that peril. Instead, the
claim is that Dushane "negligently"
-- or recklessly -- panicked when
faced with the emergency.
As Yace points out, scuba diving
requires training and certification,
and the buddy-system rules
indicate that buddies provide general
assistance to each other in
putting on and checking equipment
before a dive, reminding
each other of depth and air supply
limits, and giving emergency assistance
in the unlikely event it is
needed.
A diver's panicked failure to
assist a dive buddy in trouble cannot
be characterized as either intentional or reckless. Panic is "a
sudden overpowering fright, a
sudden unreasoning terror often
accompanied by mass flight."
Conduct that is reckless, by contrast,
is "characterized by the creation
of a substantial and unjustifiable risk of harm to others and by
a conscious (and sometimes deliberate)
disregard for or indifference to that risk ..." The mere
conjunction of the words "negligence"
or "recklessness" with
"panic" suffices to demonstrate
that no liability can exist in this
case: we would have to say a scuba
diver has a duty to his dive buddy not to panic. That, of course, we
cannot do.
A diver's panicked ascent to the surface instead
of sharing his air with a buddy in distress is
an inherent risk of scuba diving. |
In sum, "panicked reaction to
an underwater emergency is an
inherent risk of scuba diving and
cannot be characterized as the
reckless or intentional conduct for
which liability may be imposed."
Accordingly, no legal duty of care
exists, and Yace's complaint was
rejected.
Brendan YACE et al., Plaintiffs
and Appellants, v. Dennis DUSHANE,
Defendant and Respondent. No.
B162789. (Los Angeles County Super.
Ct. No. BC272937) Dec. 16, 2003.