Judge rules-Abandoned diver can sue charter company

[merxlin]

wouldnt this partly form the gross negligence claim

"At the second location, the boat staff noticed Carlock was gone, but called the U.S. Coast Guard to the second dive site to look for him, not the first site, where he had been abandoned, his suit states. "

they didnt even know where they lost him.... just that eventually they realized he was missing

which would imply staff overlooked his failure to return to the boat, didnt have a look out for divers on the surface, didnt log him back onto the boat, didnt notice his absense during the move to site #2 and didnt log him into the water at the beginning of dive #2

alot of failure points there that, well, simply failed

I'm not trying to justify leaving a diver. It shouldn't happen. But it's awfully easy to paint the picture that everything the boat did ws wrong. The assumption is that the article is factual and not just the verbiage of the plaintiff (notice the end of the sentence "....his suit states"). To play devil's advocate: The only failure points above are the failure to log him back on to the boat, and missing him at roll call. Both biggies. It was a foggy day, so looking for divers on the surface, espepcially when others may be bording the boat, would have been hit and miss. Why would the boat crew be responsible for noting he was missing during the move? Typically they are driving the boat, fixing a meal, and filling tanks once the boat is under way. I don't think we know that divers went into the water at site #2, and how do you log in someone who isn't there?

What if someone answered for the missing diver when roll was taken (that has happened before), the boat moves then discovers him missing. If its discovered that he is mising at the 2nd site, that is where the call to the Coast Guard would have been made, although not necessarily where they were dispatched to. Is it still gross neglegence and worthy of that kind of claim?

And one item that hasn't been discussed. Was he diving with a buddy? If so, why didn't he (the buddy) mention the missing diver or even notice he was missing?

 

[almitywife]

what is the boat setup? is everyone allocated a seat to attach a whip to for a airfill? do they take their tanks off and get new tanks? if they get new tanks wouldnt someone notice there is one left over? if its the whip then you have an empty seat

either way - maybe makes sense to make yourself noticable on a boat next time so people remember you

and yes - i wonder what happened to the buddy too

 

[Hetland]

Hetland, I sure hope the insurance company has a better contract than at $600/hour! Also, since trial is set for June and this may very well be the final pre-trial non-evidentiary motion, I'd be shocked, really shocked, if they haven't done ALL of the discovery already.

The one BIG question is: Is leaving a diver "gross" negligence or merely simple negligence? While I think it was probably negligent (although we certainly don't know what went on -- for example, did someone answer "here" for the missing diver?) to leave the diver, I don't think it should be gross negligence.

Doh! I missed that part somehow. You are correct.

$450-$600 an hour for California lawyers is not very unusual, but yes, contract work pays less than "standard" rates.

As for your question, yes, I think leaving a diver behind under these circumstances is gross negligence.

 

[merxlin]

what is the boat setup? is everyone allocated a seat to attach a whip to for a airfill? do they take their tanks off and get new tanks? if they get new tanks wouldnt someone notice there is one left over?

and yes - i wonder if what happened to the buddy too

The way it is set up today you get a tank (they have tanks on the boat) or you can bring your own. The tanks are on both sides of the stern. Everyone does not always return their tank to the same spot. Tanks are filled in place, but there are no seats where the tanks are. Depending on how organized the group on the boat was, there should have been an empty spot where his tank was. But I have been on the boat with a full load of 24, many with doubles, and you wouldn't know a tank was missing. They do count tanks now too.

 

[Thalassamania]

...

B. Thal wrote --
First, I must assume he didn't really think this statement all the way through. Thal, do you really believe it is "not...good public policy for someone to be absolved of responsibility for negligent acts they" did not commit? (If they didn't commit the acts (the ones they "may not" have committed) shouldn't they be absolved?)

Second, I'm glad your position is NOT the standard one. To the contrary, the position outlined in a Scuba wrongful death case here in Washington is MUCH the better public policy. Please read Boyce v. West for a pretty thorough discussion of why it is NOT a violation of "public policy" to permit people to assume the risk and waive liability for Scuba diving.
...

Thank you, I did not mean to get that second "not" in there. Indeed I do believe that it is not good public policy to permit enforceable waivers that cover the very items and duties that the student contracts with the instructor for. I strongly feel that a student has a right to expect to be returned to land safe and sound and that an instructor who fails to meet that duty (absent willful disobedience on the part of the student) should be held responsible for his actions or lack of action.

I think that the dive that Boyce died on was a classic CF and that West (who may be the nicest guy and earth and who might be the best instructor in the world on other days) was, at best, having a bad day. Like most diving accidents this dive features problem piled on problem, the identification of any one of which could well have saved Boyce's life, but West appears to not have had his head in the game that day. I would, frankly, have had no problem describing West's actions as, "Failure to use even the slightest amount of care in a way that shows Recklessness or willful disregard for the safety of others." An expert description that could have obviated the possibility of the motion for a directed verdict.

That's not to say that I am unmoved by the existence of waivers. I feel that it is perfectly reasonable for people to take on responsibility for their actions and decisions. The runner in Atlanta (Williams v. Cox Enterprises Inc.) is, I think, absurd.

I guess what it comes down to for me is that whenever a student dies as the result of something I think a competent instructor should have been foreseen and dealt with, I think that instructor should be held liable. The instructor did not do his or her job. I find repugnant the idea of a CYA codicil that says, "gee ... if I screw-up and kill you, sure, it's my fault ... but I don't have to take stand up like an adult and take responsibility for the duties that I contracted to provide to you."

Face it, it would be strange if we did not have different views on the subject, you are a lawyer and I am a university diving safety officer.

 

[Papa_Bear]

I'm not trying to justify leaving a diver. It shouldn't happen. But it's awfully easy to paint the picture that everything the boat did ws wrong. The assumption is that the article is factual and not just the verbiage of the plaintiff (notice the end of the sentence "....his suit states"). To play devil's advocate: The only failure points above are the failure to log him back on to the boat, and missing him at roll call. Both biggies. It was a foggy day, so looking for divers on the surface, espepcially when others may be bording the boat, would have been hit and miss. Why would the boat crew be responsible for noting he was missing during the move? Typically they are driving the boat, fixing a meal, and filling tanks once the boat is under way. I don't think we know that divers went into the water at site #2, and how do you log in someone who isn't there?

What if someone answered for the missing diver when roll was taken (that has happened before), the boat moves then discovers him missing. If its discovered that he is mising at the 2nd site, that is where the call to the Coast Guard would have been made, although not necessarily where they were dispatched to. Is it still gross neglegence and worthy of that kind of claim?

And one item that hasn't been discussed. Was he diving with a buddy? If so, why didn't he (the buddy) mention the missing diver or even notice he was missing?

The DM logged him in at the second site! The wreck of the Olympic.... One of the problems with the first site was that the boat does not tie off our anchor! The boat keeps station while the divers go in and get out.... The Captain must stay alert at the helm because of currents and traffic! This was a DM and Buddy deal, but the Captain lost his ticket because of poor choices by a DM provided by the Chartering Shop! This is when all involved wish there were do overs, the Captain should sue the DM and her trainer and maybe the shop to indemnify him and the boat! He was buddied with two other divers and they all got separated as soon as they entered!

 

[pir8]

I'm sorry but no excuses for the crew to not notice that they were missing someone at the first site , but then to log him into the second is criminal.

 

[Puffer Fish]

is anyone else getting threatening PMs about responding to this thread

if yes, please advise - pm will be fine

cheers

Nope... but then this is my first post..

Papa Bear's comments on the dive seem to be a fairly reasonable description of the events.

I happen to agree with you (and several others). The sole purpose of going on a dive boat is to dive. Assumed in that process is the getting on and eventually getting off the boat. It it the only reason for the whole thing to exist.

If, as the Captain, someone else messes up...should that make the Captain take a free walk? Don't think so.

If you sign a waver, does that or should that give up all responsibility for the boat to do their job correctly? Don't think so.

I've taken a lot of groups on dive boats... sometimes the captain decides to keep track of people, regardless of what I do, sometimes there is an expectation that I would do that accurately. I believe that it would be reasonable to expect the captain still has overall responsibility (although "legal" and rational don't always go together).

Regarding "Gross" versus not gross. Given the job, and what the reasonable expectation is... even if the mess up was due to someone else...it would be hard for it not to be "gross".

I do have a major issue with the Buddy and DM information presented. Not sure what the correct legal issue is... but there is clearly some responsibility here (but this is a far more debateable concept).

On a moral point of view... if you are diving with someone (even an insta-buddy) I believe you have a responsibility to communicate if they don't come back to the boat.

 

[fairybasslet]

is anyone else getting threatening PMs about responding to this thread

if yes, please advise - pm will be fine

cheers

You're joking, right? Unbelievable.

 

[jasondcrawford]

Not that being left alone in the ocean is ok, but the guy was only out there for four hours, not four days. Don't get me wrong, I would be plenty pissed off, scared,etc., but I can't say that I would sue all of these people. He claims skin cancer from THESE four hours of exposure, give me a break! California is the "sue capital" of the U.S.A. No wonder businesses can't afford insurance, workers compensation and the like. I hope all he gets is a free dive weekend out of this, and that it helps the dive industry to improve their safety standards so that things like this do not happen to other divers.

Amen. It indeed would have been a terrible experience, but $4,000,000 to float around for a few hours? In all seriousness and honesty, if he had died they'd be liable for much much less than that. How is it that if someone lives and sustains 'emotional trama' they think they're entitled to so much money that they'd never have to work another day in their life. This just isn't right and I hope loses bigtime.