13 year old diver dies - Oahu, Hawaii

[KevinNM]

Generally I understand that you can’t waiver gross negligence. You can waiver simple negligence. Or so I’ve been told. How accurate that is I don’t know.

 

[Wookie]

Does a waiver of any kind ever really protect someone found to be negligent? It's one thing to take on a risky activity and die doing it. It's another to die because someone else did something negligent while you were undertaking a risky activity.

Negligence is a funny term. Florida is a waiver state, meaning that waivers are typically upheld in court, as long as the waiver is properly written, with all of the correct clauses. California is often not.

So there is also the difference between negligence (someone caused a problem and didn't provide a prevention for the problem) and gross Negligence (Someone deliberately caused a problem that they knew better). Waivers almost never protect the operator from their own gross negligence. And that's what the lawsuit will delve into. Depending on who is named in the suit, questions will be asked like:

1) Did the instructor take the participants into conditions that were unsuitable for a DSD experience? (gross negligence, he knew better/had procedures that were ignored)
2) Did the boat set sail in conditions too rough for diving? (negligence, maybe, depending on what standards the shop has)
3) Did the participant complete the confined water and classroom portion of the training?
4) Did the certification agency allow a ratio of divers that is unmanageable unless conditions are perfect? (This is not the first or 3rd or manyeth time shops from this agency have done a DSD and lost divers in less than stellar conditions)

So the participant or/and his parents can waive negligence, but not gross negligence, and that's what the lawsuit is all about. Did the certified instructor know better than to take the participant in the water, or was it just bad luck that the diver got separated from the group and died?

 

[JackD342]

But he said they don't know what happened under water. So, at this point it seems we know as much as the lawyer. Which appears to be not much. An instructor with team members were on a dive with the boy. That's about it. Everything else in this thread so far is speculation.

I am not defending the operators, just trying to get to the bottom of what really happened. And when a lawyer is talking, I tend to put my lawyer hat on. He contradicted himself.

Some of the news articles say "diving with his family." Unless that is a grossly inaccurate statement, I would think the family has first hand knowledge of the process and ratios at least from observing on the surface, and probably more first hand knowledge from at least part of the dive itself. Lawyer's statements are likely based on directly related information from his clients.

 

[tursiops]

I did a couple of dives with Island Divers in January 1999, with my wife; I was OW (NAUI) at the tme, she was doing the DSD. The DSD was NOT done to standards....not at all...but I did not know that at the time. The equipment they gave her failed (BCD fell apart and lost its air) and they had to tow her back to the boat for a replacement. There was a Russian couple with us, the girl was sort of OK but the guy did not understand a word of English, so the briefings and explanations were useless to him. My wife and I were left on the bottom while the instructor went back to the surface to see why the Russian couple had not yet descended. The Russian guy was clearly terrified the entire time. It was a terrible experience....except that my wife saw a nurse shark, a green moray, a green sea turtle, and played with a small octopus. She was sold, has not looked back. now has 1500+ dives and is an instructor. Island Divers now appears to have different owners and staff, but it looks like their methods and attitude have not changed.

 

[CuzzA]

Some of the news articles say "diving with his family." Unless that is a grossly inaccurate statement, I would think the family has first hand knowledge of the process and ratios at least from observing on the surface, and probably more first hand knowledge from at least part of the dive itself. Lawyer's statements are likely based on directly related information from his clients.

Yes, you would think, but then you have to wonder why the lawyer said they don't know what happened underwater. Maybe each family member had a DM/Instructor. Maybe not. That is why I brought attention to his statements.

 

[tarponchik]

I did a couple of dives with Island Divers in January 1999, with my wife; I was OW (NAUI) at the tme, she was doing the DSD. The DSD was NOT done to standards....not at all...but I did not know that at the time. The equipment they gave her failed (BCD fell apart and lost its air) and they had to tow her back to the boat for a replacement. There was a Russian couple with us, the girl was sort of OK but the guy did not understand a word of English, so the briefings and explanations were useless to him. My wife and I were left on the bottom while the instructor went back to the surface to see why the Russian couple had not yet descended. The Russian guy was clearly terrified the entire time. It was a terrible experience....except that my wife saw a nurse shark, a green moray, a green sea turtle, and played with a small octopus. She was sold, has not looked back. now has 1500+ dives and is an instructor. Island Divers now appears to have different owners and staff, but it looks like their methods and attitude have not changed.

Where was this? Green morays and nurse sharks are not so common in Hawaii.

 

[tursiops]

Where was this? Green morays and nurse sharks are not so common in Hawaii.

Really? I've seen them there quite a bit....

It was in Turtle Cove, near Hawaii Kai, east of Honolulu.

 

[Ayisha]

Does a waiver of any kind ever really protect someone found to be negligent? It's one thing to take on a risky activity and die doing it. It's another to die because someone else did something negligent while you were undertaking a risky activity.

In Canada, you can't waive away gross negligence or the right of your heirs to sue. Dive shops/charters still sometimes put it in their waiver, but it apparently doesn't stand up here in court either.

 

[Wookie]

In Canada, you can't waive away gross negligence or the right of your heirs to sue. Dive shops/charters still sometimes put it in their waiver, but it apparently doesn't stand up here in court either.

It’s dangerous here, as in some courts, if one clause is found to be not enforceable, and the severability clause isn’t properly written, the whole release is tossed.

 

[tarponchik]

Really? I've seen them there quite a bit....

It was in Turtle Cove, near Hawaii Kai, east of Honolulu.

Tell John P. Hoover, he'll be excited.