Horizon Charters San Diego Wins Defense Verdict in Lawsuit

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Wow, they have a really good lawyer. If they could not get an "ok" or response from either diver, isn't that supposed to be taken as they're not ok? The "ok" question is supposed to require a positive answer.

To begin searching 25 minutes after the first diver came back seems pretty laid back too.

I understand and believe in taking personal responsibility, but not taking action when an "ok" is not returned and then waiting a further 25 minutes after divers have separated and the first one has returned is not about taking personal responsibility. They had no idea what the problem was at the time. The DM's do not go in the water except in an emergency, and they did not establish whether there was an emergency or not.

Any chance of appeal?
You raise the issue that I had in mind, to wit: "If you signal "OK" and and "OK" is not returned, is that not, by definition, an emergency that should launch a DM into the water?

How much that contributed to the diver's demise, is not something that I have enough details to have an opinion on and, of course, is open to question.
 
I can't tell you how many times a DM has said to us in a dive briefing that if we do not give the big ok when we splash or they ask us if we are ok and we don't respond, they will "not be happy" to get their gear on and jump in to see what our emergency is.
The next part of that statement is usually that "If you don't have an emergency, you had better be having an emergency by the time I get there".

I have heard that pointed "joke" or a direct statement many times. A diver in distress would most likely not signal "ok" back. That's why a positive affirmation is necessary.
 
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"If you signal "OK" and and "OK" is not returned, is that not, by definition, an emergency that should launch a DM into the water?

Simple answer: No.

The flip side of that question is to ask, "Is every diver who gives an OK sign really OK?" I have seen people give an OK sign when they are struggling to get a reg in their mouth. They give the OK sign because they've been told that's what they're supposed to do, as opposed to making a connection between being OK and saying you're OK. Is the argument that once a diver has given an OK sign, a DM has no obligation to help them because they've said they're OK? Nonsense.

By the same token, those of us who have done this for a while have seen plenty of people who don't give an OK sign have absolutely no trouble making their way back to the boat. Are you suggesting that simply because they didn't give an OK sign we should jump in to go get them to make a point? Also nonsense. And what happens when you do that, and a REAL emergency arises, and you won't be able to respond because you're off in another direction. Good luck defending your actions on the stand.

The point I'm making is that DMs (using the term broadly to include all supervisory personnel) have to be constantly assessing what's going on. An OK sign from a diver (or lack thereof) is NOT the Holy Grail of how things are going. In fact, one of the early fatalities I investigated involved a guy surfacing a few hundred yards behind a boat, giving an OK sign, kicking back, giving another OK sign, kicking more, giving a third OK sign, the DMs just didn't think things looked right and started swimming out to him, and when they reached him the diver had had a heart attack and was unconscious. Although they were able to get him back to the boat quickly, he eventually died. But because they assessed what was going on and just didn't take the OK at face value, that diver had the best possible chance for survival.

So "OK" doesn't always mean "OK." Nor does lack of OK mean we need to launch a rescue attemtpt. Use some common sense.

- Ken
 
Ken, by your logic we should do away with the OK completely, yes?
 
I testified in this trial as a non-designated expert (paid - but not "working" for one side or the other). Interestingly, I was subpoenaed by the plaintiffs based primarily on the investigation and equipment testing I did for the LA County Coroner.

The plaintiffs position (in my view) was essentially that "Horizon should have saved him" and, in deposition, they generally were contending that all rescue attempts are successful and if only the rescue had been launched earlier, the guy wouldn't have died. I countered that that simply wasn't true, that there have to be reasons to launch a rescue attempt. They essentially said, "Well, Horizon should have known he was in trouble," and I replied, "We're not psychics."

There were also a number of other factors to consider:

1. Diver had around 1000psi in his tank. He was in 14-18 feet of water. Even if he couldn't get off the bottom, had he kept his reg in and just waited for help, he'd have likely been alive when the Horizon DM arrived on-site.

2. Diver never ditched his weights because he had put them into zipped pockets rather than using the ditchable BC weight pockets. So he never ditched weight. Likewise, he never ditched the entire BC and tried to free ascend, which would have had the same effect as ditching the weights alone.

3. Diver had pulled the inflator mechanism out of the corrugated hose. Likely this happened after he and the buddy surfaced, argued a bit about lobsters (the buddy described him as being very upset), and then descended. I believe that when he pulled the inflator out and pushed the button, he got no inflation in the BC, got bubbles in his face, panicked, spit the reg out, pushed the mask to his forehead, bolted for the surface, passed out on the way up, and then settled back down to the bottom. (His computer printout confirms this as a possible scenario.) And had he simply re-insterted the inflator mechansim back into the hose, which requires no tools or special skills, all likely would have been well and the BC would have worked properly.

4. Much was made of "splashing" that the DM had said in depo - but not in his original on-scene comments - that he observed. But the splashing was never definitely ideitified as being from divers. It was not continuous. It could have been the two divers descending head-first and their fins splashed (a little too bouyant) as they went down. It could have been a sea lion (they were near a large rookery). It could have been a pelican diving for fish. "Splashing" does not necessarily translate into "diver in distress."

5. The DM went in a skiff to the area where he thought the splashing occured. The visibility was fairly good and he could see bottom features. He couldn't see anyone on the bottom and couldn't see anyone on the surface in distress, nor could he see any bubbles nearby. What exactly was he supposed to respond to? That there may have divers there previously and they may or may not have had some trouble that may or may not still be happening? There was simply nothing to respond to.

6. As for the percevied delay in responding (mentioned previously), don't forget this was a lobster trip and there was a large kelp bed between where the buddy surfaced and where they two together had previously surfaced. The buddy notified the DM (who was nearby in a skiff) when the buddy surfaced. They (reasonably IMHO) thought the diver may have continued the dive to look for lobsters. They looked for bubbles but could see none in the area. That's when they went back to the boat and did a roll call.

7. There was also some confusion in the roll call because the missing diver had signed first/last name on the roster but he actually went by his middle name.

8. Once they determined he was in fact unaccounted for, the DM got suited up and went back in the skiff to the area where the splashing was seen. He found the diver on the bottom in about two-and-a-half minutes. The plaintiffs charactarized that as "immediately" but while it's quick, you can cover a lot of ground searching in that amount of time, so it's not like they pulled up right on top of where he was laying.

9. The plaintiffs tried to use the "quickness" of the recovery as proof that when the DM was previously/first at the site of the spalshing, had he jumped in then, the diver could have been saved. I said one had nothing to do with the other and that there's no proof (nor way to prove) that they were even in the same spot both times, let alone anywhere near where the victim was actually found.

However I think the most brilliant thing, and what helped carry the day, was Horizon attorney Steve Hewitt's closing argument. He talked about the buddy system and how important it was for diving and that these two had buddied up. One of the tenants of the buddy system is that if you lose your buddy, you search for a minute or so, then surface. Hewitt was able to show that the buddy took close to five minutes to get through the kelp bed before he surfaced. Hewitt argued that had the buddy followed the lost-buddy procedure, either he (the buddy) might have found the deceased diver, or at least he should have surfaced as much as four minutes earlier and alerted Horizon's DM, who was already either on-site or on his way. Had the buddy done that, there's a better chance the diver could have been saved but by not doing that, Horizon simply was acting on the best information they had available.

The other thing that did not come into play here was whether or not the equipment, which was rented from an Arizona dive shop, was defective. In my inspection, I noted that there was a tie-wrap missing from where the inflator attatched to the corrugated hose. There was one there but an indentation where #2 had been. I don't know if it wasn't there when rented or came out when the inflator dislodged. But there was a suspicion that there may have only been one tie-wrap holding the inflator in, and had their been a second one, it wouldn't have dislodged.

The widow sued the dive shop as well but settled with them out-of-court. I'm aware that it was for what I consider to be - if the equipment truly was defective - an appalingly low amount, barely into five figures. It represented good lawyering on ther part of the shop's attorney, but I think a tactical error on the part of the plaintiff's attorneys. And once that horse had left the barn, I think plaintiffs ramped up their attack on Horizon because it was the only way to mitigate their lost opportunity.

Hopefully this gives you some better perspective in all of this. Things are not always as they seem on the surface. (Sort of like my whole "OK sign" comments above.) :D

One other note: I'm not sure why this press release came out now (through DiveNewsWire). I testified (imn San Diego where the trial was held) on October 19 and the verdict was rendered a week or two later. So this all went down roughly three months ago.

- Ken
 
If you are on the Spree and we ask if you are OK, you'd best respond. Otherwise we will. That's how I was taught. Flip side is, if you are obviously OK, we won't ask.

My insurance company has changed their policy regarding what they consider nuisance lawsuits. If they think the defendant (their client, me, in other words) is in the right, they will spend all of the insurance money to defend me. If we lose, I guess the plaintiff can have what's left over. I'm happy to give them the boat, it comes with lots of strings attached.

I'm glad to see that even in California, the good guys can win one too. Good on Horizon and their lawyers.
 
I agree that responding to an OK with an OK does not constitute all is well. It is all in context and a DM has to constantly assess the situation.

It sounds from the story that the diver was on the surface, gave no OK and then went back down. Was it in the dive plan to surface and then go back down? I think the DM(s) should have realized something was wrong and responded earlier (25 minutes seems a bit long).

However, I don't think that is enough to have the DM(s) shoulder the blame for the incident. I think the result is the correct one (based on the limited information that I have).

Myself, I don't dive with (easily) ditchable weights, and rely on my drysuit as a backup for my BC. I also practice ditching my gear on regular basis, and also dtiching some weight (I have 4 pounds that can be ditched, just not easily).

If this case went the other way, there would be no operator in California that would allow me to dive this way.
 
Ken, by your logic we should do away with the OK completely, yes?

I believe it not to be an absolute indicator of diver status. I think we have too many supervisory-level people who believe if they see an OK, that means OK. I think too many divers given it routinely, without stopping to think if they're really OK or not.

The other side of this - and one of my favorites - is when you give an OK sign and the DMs are looking the other way and don't see you. I got a lecture one time from a DM about not giving an OK sign on my kick in. I pointed out that I had, in fact, signaled the boat three different times on my kick in but never got an OK back. (Gee, maybe that should be interpreted as it's not OK to return to the boat???)

His comment to me was, "Well I never saw it." My comment to him was "So your inattention as to what's going on is somehow MY fault???"

- Ken
 
I believe it not to be an absolute indicator of diver status. I think we have too many supervisory-level people who believe if they see an OK, that means OK. I think too many divers given it routinely, without stopping to think if they're really OK or not.

The other side of this - and one of my favorites - is when you give an OK sign and the DMs are looking the other way and don't see you. I got a lecture one time from a DM about not giving an OK sign on my kick in. I pointed out that I had, in fact, signaled the boat three different times on my kick in but never got an OK back. (Gee, maybe that should be interpreted as it's not OK to return to the boat???)

His comment to me was, "Well I never saw it." My comment to him was "So your inattention as to what's going on is somehow MY fault???"

- Ken
I was not trying to say that the boat or the DM were "responsible" since I know little about the case. I was disturbed, only, by the lack of the kind of system that the Spree has:
If you are on the Spree and we ask if you are OK, you'd best respond. Otherwise we will. That's how I was taught. Flip side is, if you are obviously OK, we won't ask. ...
 
The Spree is a tight boat! Takes a while to cover the rules, but they are all well founded, and he is nice about it. Wish more were like him. :medal:
 

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