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March 2004 Vol. 19, No. 3   RSS Feed for Undercurrent Issues
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Diver Sued for Abandoning Buddy

is he liable for her death?

from the March, 2004 issue of Undercurrent   Subscribe Now

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.

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