Suit filed for Carbon Monoxide fatality - Washington state

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I hope this suit doesn't follow those principles, Frank. We have very, very few dive charter boats left in Puget Sound, and this is the practice on every one of them. The Bandito boat is generally top drawer -- Rick and his crew are universally liked, know their sites well, and take good care of their divers. Losing this charter would be a huge blow to all of us in the Seattle area.

I've seen dive boat skippers lose clients, lose divers, lose their minds, and lose at poker, but you'll never see one lose heart like they lose heart after they are sued, win or lose. In fact, I've never seen one come back after they were sued.

Richie Kohler is a friend of mine. He was a prolific instructor, treasure hunter extraordinaire, and fantastic story teller. Then he was sued for a fatality that wasn't his fault. The courts found that it wasn't his fault, then the appeals court found that it wasn't his fault. Somewhere in that 2 year process Richie lost his heart for teaching. He still comes and dives, and we still toast fallen comrades together, but his heart just isn't in it any more. Richie was never a boat captain, but he has all of the ego required to be one.

I hope for your's and Rick's sake that he sails through this with nary a scratch. I hope Rick doesn't take it personally, and understands that some billboard lawyer convinced the family that they could get some free money from this, and it isn't personal. Sadly, folks with egos like ours do take it personally. You are an ER doc. When you do your very best, and a higher power takes the final decision out of your hands, you agonize and then go on with life. When you get sued and you know you did all you could, and even looking back know all of your decisions were correct, well, it's a bit like getting kicked in the balls. You'll do anything to avoid getting kicked in the balls twice.
 
I've seen dive boat skippers lose clients, lose divers, lose their minds, and lose at poker, but you'll never see one lose heart like they lose heart after they are sued, win or lose. In fact, I've never seen one come back after they were sued.

Richie Kohler is a friend of mine. He was a prolific instructor, treasure hunter extraordinaire, and fantastic story teller. Then he was sued for a fatality that wasn't his fault. The courts found that it wasn't his fault, then the appeals court found that it wasn't his fault. Somewhere in that 2 year process Richie lost his heart for teaching. He still comes and dives, and we still toast fallen comrades together, but his heart just isn't in it any more. Richie was never a boat captain, but he has all of the ego required to be one.

I hope for your's and Rick's sake that he sails through this with nary a scratch. I hope Rick doesn't take it personally, and understands that some billboard lawyer convinced the family that they could get some free money from this, and it isn't personal. Sadly, folks with egos like ours do take it personally. You are an ER doc. When you do your very best, and a higher power takes the final decision out of your hands, you agonize and then go on with life. When you get sued and you know you did all you could, and even looking back know all of your decisions were correct, well, it's a bit like getting kicked in the balls. You'll do anything to avoid getting kicked in the balls twice.

Frank
This is one of the best posts I have ever read. Thank you!
Mark
 
If a big guy is paniking on the surface, I would be very wary of jumping into 50F water with no thermal protection, no scuba and maybe even no mask or fins. I don't think the success odds for this act would be very good.
 
No idea how they plan to drag SSI into it, but I guess we will find out.
Anyone who has followed recent lawsuits will be able to answer this one. It is part of a new strategy that is (IMO) troubling for the industry.

A few years ago a dive club in California chartered a boat like this one for a three tank dive. The club had two of its members, both DMs by certification, running the trip logistics. They called role after each of the three dives to be sure everyone had gotten back on board. Incredibly, they missed one of the divers after the first dive, and they repeated the mistake after each of the other two dives. The diver was found alive that afternoon by another boat, and he sued. The suit included PADI, which did not have the remotest connection to the incident, because the DMs were PADI certified. The suit's claim was that the DMs were "agents" of PADI and were thus acting under their control. As absurd as that claim may seem, it worked. The jury found PADI liable to the tune of $2 million.

With that precedent in place, PADI has made a number of changes. That includes adding wording to standard liability waivers requiring divers and students to acknowledge that the people with whom they are working are not agents of PADI. I have recently learned that SSI has done the same thing.

This precedent is troubling because if a certifying agency is automatically included in a lawsuit every time a professional screws up, and if that agency is automatically guilty if a jury determines that the individual is guilty I would think that agencies would have to go out of existence. It would be like a medical school being successfully sued for millions of dollars every time one of their graduates commits malpractice.

In a recent lawsuit in which an instructor seriously screwed up, PADI was included again. The language of the claim said that PADI was included because the instructor was an "agent" of PADI. PADI scrambled to get out of that situation. I assume the suit against SSI is for the same reason, and I would expect SSI to do everything it can to get out of it the way PADI did.

They are waiting for Brian Carney to do that for them. :wink:
For those who don't understand this reference, Brian Carney of SDI/TDI sent out a letter that was critical of PADI for its actions in that recent lawsuit. He said that his organization will stand by its instructors in such a situation. As a TDI instructor, I am wondering what this means. If I really, really screw up badly and have an obvious losing lawsuit on my hands, and if TDI is sued on the basis that I am an "agent" of TDI, will they really accept that position without fighting it? Will they really sit back and accept a multi-million dollar judgment without fighting it? More importantly, will the fact that they wrote that letter say in effect that we are indeed their agents? Will that prevent them from arguing otherwise?

---------- Post added December 4th, 2014 at 03:31 PM ----------

If a big guy is paniking on the surface, I would be very wary of jumping into 50F water with no thermal protection, no scuba and maybe even no mask or fins. I don't think the success odds for this act would be very good.

I hope I am remembering the same incident to which Frank is referring, and that I am remembering it correctly. I hope he will correct me if I am in error. In the case I was thinking of, there were several findings against the boat and its captain. Not only were the standard procedures not followed, the crew had not been trained to use the standard procedures, and the captain was not in position to supervise the entry procedures and rescue.

If you are a boat in which such a possible situation exists, then you have an obligation to have procedures that will work for that situation. You have to train your crew to use those procedures. If jumping into 50° F water without thermal protection, scuba, mask, and fins is not a smart move, then it sure as heck should not be a part of your standard procedures.
 
This precedent is troubling because if a certifying agency is automatically included in a lawsuit every time a professional screws up, and if that agency is automatically guilty if a jury determines that the individual is guilty I would think that agencies would have to go out of existence. It would be like a medical school being successfully sued for millions of dollars every time one of their graduates commits malpractice.

One obvious difference is a doctor is not required to maintain a professional membership and pay annual dues to his school.
 
One obvious difference is a doctor is not required to maintain a professional membership and pay annual dues to his school.
Do you pay annual dues to the school where you took your IDC or to PADI? I can't speak for doctors but I know as an accountant I had to join the AICPA and pay annual dues to them, not my school, in order to continue to practice every year. I bet other professions are similar.
 
Anyone who has followed recent lawsuits will be able to answer this one. It is part of a new strategy that is (IMO) troubling for the industry.

. . . The suit's claim was that the DMs were "agents" of PADI and were thus acting under their control. As absurd as that claim may seem, it worked. The jury found PADI liable to the tune of $2 million.

John,

It is possible that this is the reason the agency is named, but I think a more benign reason is more likely. The article states "He and several other student divers were aboard The Sampan, a dive boat operated by Bandito, when it left a dock near Gig Harbor that morning." This implies he was in a class, although I admit news reports on dive accidents have a history of incorrect statements.

If this was a class, as stated, I would fully expect the agency to be named in a suit, and I don't think it is a new strategy at all. A person sues hoping to find the party at fault. First up is the instructor, who will claim he was following standards, so was not negligent in the death. If you haven't named the agency, you are now stuck, and have to file another suit naming the agency with the apparently unsafe standards. As a plaintiff, it's easier to name everyone and sort it out later.

Another possibility for naming the agency is that agency was negligent in certifying the instructor in the first place.
 
John,
Another possibility for naming the agency is that agency was negligent in certifying the instructor in the first place.
That is dangerous territory, as no agency can ensure that an instructor/dive master follows proper procedures than ensure safety. They train to standards and cannot guarantee that standards are followed. They can only react to incidents where they don't and either re-train or ban.

I'll state up front I don't have the diving credentials as most of you here. I started in late June of 2013 and only have 114 dives. But I have dove Bandito, Oceanquest, Lu-Quest in the Puget Sound. All are great operations with great crews. I've also dove with Beachhopper II out of Monterey and with Porpoise Bay out of Egmont, BC. Only the Beach Hopper II had a dive master ready to go into the water.

While I was not there, I would have expected for someone to kit up in full gear and be ready to get into the water. Once the victim went under, someone should have been in the water within a minute and gone after the victim. This should not have happened, but with regards to fault, if there were any instructors/dive masters/rescue divers, just what were they doing/thinking? But again, I'm an armchair quarterback making statements without all the facts.
 
I've had bad air before and it tastes awful! His fins were loose? Who is to blame for that? Bandito isn't, nor is his buddy.

Air that tastes bad is always bad. Air that tastes good is not necessary good. CO is tasteless and odorless.

OTOH, for it to be a CO problem after just a few breaths on the first dive of the day the contamination would need to be massive. Unless the air has actually been analyzed, it sounds a lot like flinging brown stuff to see what sticks.

Also, regardless of what was offered or agreed to, I'm not sure it's actually legal for a dive boat to not assist a customer in distress, even if it's "Commonly done in the area". Possibly one of our friendly local attorneys would weigh in.

SSI has nothing to do with anything unless this was an SSI class.

flots.
 
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Interesting discussion. As I mentioned previously, in a large majority of the "incidents" that I have seen, the scenario is typically: tired/panicked-diver-at-the-surface-behind-the-boat. Throwing a floatation device on a line or jumping in with fins, mask and some exposure protection would seem to be a reasonable SOP for a commercial charter boat.

However, if the diver comes to the surface, yells for help and sinks, the scenario of getting a divemaster suited up very fast and having them dive solo, find the victim and rescue them would be very unlikely to be practical unless the water was calm, clear and not too deep. I think it would be impractical to expect an operation to be ready to mount this later type of response. It is unlikely to be needed and much less likely to be successful.

However snatching someone from the surface within 30 seconds as they enter into a drowning situation is logistically much simpler and vastly more likely to occur and much more likely to be successful. In my mind, this makes it a "reasonable" contingency to be prepared for.
 
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