Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the acts of the plaintiff

This case was brought to my attention because of the suit for the ski buddy fatality in Canada in the news recently. (See Canadian suit would hold you liable for your ski buddy’s death.)Are you liable for your buddy’s death if you are participating in a sport together. The issue pivots on whether or not there is an expected responsibility (duty) on behalf of the buddies.

Rasmussen, et al., v. Bendotti, 107 Wn. App. 947; 29 P.3d 56; 2001 Wash. App. LEXIS 1962

Plaintiff: Cully, Adam, and Brandy Jo Rasmussen, children of the deceased and the estate of the deceased

Defendant: Eugene L. Bendotti, husband of the deceased

Plaintiff Claims: negligence

Defendant Defenses: there was no negligence

Holding: for the defendant

This is one of a few cases where a co-participant or in this case dive buddy is held liable for the injuries or deaths of the other participant. In this case, a husband and wife were diving together to recover a snowmobile 100’ deep in a lake. On the fourth dive of the day, the husband realized he had not attached his power inflator to his buoyance compensator. He dropped his weight belt and ascended, leaving his spouse, dive buddy, below.

The wife was found drowned after becoming entangled in a rope.

The buoyance compensator is a PFD (personal floatation device) designed for diving. It is inflated and deflated as you dive to keep your body at the level or depth in the water you want. Many divers will deflate and inflate the buoyance compensator (BC) several times during a dive as they descend, stay at a level and descend or ascend again.

A trial was held to the court which held that the husband did owe a duty to the spouse. However, that duty was terminated once the husband’s emergency occurred. The court also found that the husband’s failure to act as a proper dive buddy was too distant from the cause of death of the spouse to be the proximate cause of her death.

The plaintiff’s appealed.

In this case, the plaintiff’s appealed the errors; they felt the court made in its decision. Those are called “assignment of error(s).” The plaintiff argued that the court came to the incorrect conclusion in the determination of the facts and the application of the law.

Summary of the case

The court accepted several conclusions of fact and law from the trial court that are necessary to understand its analysis and, which are critical legal issues. The first was a dive buddy owes a duty of care to his or her dive buddy. Consequently, a failure to exercise this duty, which results in an injury to the dive buddy, can be negligent.

The existence of a duty is a question of law. Whether the defendant owed the plaintiff a duty, however, turns on the foreseeability of injury; that is, whether the risk embraced by the conduct exposes the plaintiff to injury. “The hazard that brought about or assisted in bringing about the result must be among the hazards to be perceived reasonably and with respect to which defendant’s conduct was negligent.”

The trial court found the defendant had not breached his duty because his personnel emergency ended any duty he owed to his dive buddy. The trial court labeled this as the emergency doctrine. However, the appellate court defined the emergency doctrine as:

The emergency doctrine was developed at common law and states the commonsense proposition that a person faced with an emergency should not be held to the same standards as someone given time for reflection and deliberation.

A defendant is entitled to the benefit of the emergency doctrine when he or she undertakes the best course of action given an emergency not of his or her own making.

The appellate court did not hold the emergency doctrine did not apply; however, its statements indicate such because it went on to discuss proximate cause.

Proximate cause is the term defined to relate the breach of the duty to the injury.

Proximate cause has two discreet elements. The first, cause in fact, requires some physical connection between the act (the failure to connect the power inflator) and the injury (Bonny’s death). The second element of proximate cause involves legal causation. Id. And that is a policy consideration for the court. The consideration is whether the ultimate result and the defendant’s acts are substantially connected, and not too remote to impose liability. Id. It is a legal question involving logic, common sense, justice, policy, and precedent.

The court ruled that the cause of the plaintiff’s death was the plaintiff’s own acts, not caused by the defendant. The court questioned, “…if Gene had properly connected his power inflator, would Bonny be alive today?” The trial court stated, and the appellate court accepted that the act of the defendant descending was not the cause of the plaintiff’s death.

An expert witness opined that the cause of the plaintiff’s death was her failure to have a dive knife with her.

There was too much between the ascension of the defendant and the entanglement which caused the drowning to be linked. The ascension was not the proximate cause of the plaintiff’s death.

So Now What?

The decision in the Canadian court on whether a ski buddy owes a duty of care to another skier will probably not end with the jury’s decision. See Canadian suit would hold you liable for your ski buddy’s death. Ski buddy meaning the guy you don’t know skiing next to you. However, here we have a definitive decision that a dive buddy in a scuba diving owes a duty to their dive buddy.

This is a very different legal relationship than found in competitive sports where someone may be injured due to another participant and the nature of the game. See Indiana adopts the higher standard of care between participants in sporting events in this Triathlon case. Here one participant in the sport is legal responsible, as defined by the sport or activity or sometimes the two people, for the other person.

If you agree to watch or take care of someone in a sport, you may be accepting liability for that person. Be aware.

What do you think? Leave a comment.

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Canadian judge holds “ski buddy” not liable for death of skier. Buddies assigned by guide in Helicopter on way out does not create a contract

The court found there was no contract between ski buddies, and the defendant skier met his duties to the deceased skier. A tree well is a risk of skiing, and no other skier could have done more than alert the guides when a skier was missing.

The deceased died in a tree well on a helicopter ski trip in Canada. His widow sued his ski buddy for his death claiming he was a“… contractually obligated to stay close to her husband, keep him in sight, and assist or alert guides and other skiers if he observed his buddy in need of assistance.”

The entire concept of a ski buddy is fraught with spatial issues.  Rarely do people ski side by side. If you are skiing side by side, both skiers can only occasionally glance downhill. Here, the facts and allegations of the plaintiff argue that the defendant should have skied behind the deceased to keep an eye on him. Would that have not placed the deceased in the same liability position with the defendant?

How do you ski through deep powder and trees and keep an eye on someone’s 100% of the time. Even if you do, how do two people do this for each other? It is physically impossible.

The next issue is normally one guide skis in front of the group and the second guide skis at the rear. No matter what, the time it would take to notify any guide either by waiting and hoping the second guide finds you or by skiing to the bottom guide, which did occur, is lengthy. The heli-ski operator told skiers to stop and yell if they got into trouble?

The most telling part of this article is the deceased was a successful personal injury attorney.

You can find the judge’s ruling dismissing the case here. The facts of the case as set out in the judge’s ruling led to the idea that there was no requirement to ski with a buddy at the time of the fatality. The buddy requirement ended when the group exited from the forest into a logged area. Everyone descended together at that point, and generally, no one tracks anyone else.

This is a Canadian legal decision and the decision, although well written was confusing because Canadian law is different from US law. My analysis may be incorrect in all aspects of the court’s decision. As an example, here is the court’s definition of standard of care in negligence.

Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances.

Rarely, in US law, is the phrase unreasonable risk of harm used to define negligence.

The court’s statement of the facts also shows a surprisingly quick search and location of the deceased. It took only 4 minutes, based on the radio log between when the search started and when the deceased was found.

The plaintiff argued that the defendant ski buddy owed a duty of care to the deceased by voluntarily taking on the responsibility to look out for the deceased. In order for a claim to be made under Canadian law, the person agreeing to accept the volunteer liability must have some control over the risks. Here the defendant had no control over the risks. Nor was there any evidence that the acceptance of the voluntary role of ski buddy was relied upon by the deceased.

The relationship created between ski buddies did not create a relationship where the volunteer assumed the responsibility over the deceased. Instead, the relationship between the parties was defined by the guides who created the relationship. That meant they ski buddies were to keep each other in visual and vocal contact in the forest and as outlined in a video everyone watched before skiing. The issue of the location of the responsibility, the forest was important. The parties had exited the forest into a logged area where it was generally understood the ski buddy relationship ended.

The ski buddies never spoke to each other so there was no understanding of their roles so no greater requirements were created between the ski buddies. The term ski buddy, as defined by the judge did not create a duty; in fact, the court found a ski buddy is to respect the autonomy of the other ski buddy. Meaning a ski buddy relationship does not mean you give up your skiing to watch the other, you still should enjoy your runs.

Besides the judge’s decision that the timeframe between when the deceased was discovered to not be with the group and when the guides were notified of the fact to not be negligent, the sole issue was contract.

The judge’s conclusions were as followed.

If there was a duty of care between the plaintiff and defendant as a ski buddy, then the defendant met it with his actions.

There was no contract between the parties. There was no contract or contract intention. Even if there was a contract, it ended once the parties exited the forest into the logged area where the accident occurred.

So?

The decision is not as definitive as one would have liked. The decision can also be appealed. However, it is still a great decision for skiers.

The saddest part is the heli-ski guide service created liability, which resulted in this lawsuit against one of its clients. By writing its release so that it not only protected the heli-ski operations but everyone else this would have been avoided.

Here are the articles I based this article on: ‘Ski buddy’ not liable for heli-ski death, court rules and Judge rules “ski buddy” not liable for death. The article describing the suit before the judge’s ruling is ‘Ski buddy’ sued in heli-ski death

What do you think? Leave a comment.

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Email: Rec-law@recreation-law.com

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By Recreation Law    Rec-law@recreation-law.com      James H. Moss         #Authorrank

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