Calgarian suing diver training organization

[Omisson]

PADI is telling divers to check for a tasteless, oderless gas that can be fatal, by tasting and smelling.

I would expect a successful lawsuit.

And I expect a dismissal for lack of jurisdiction.

 

[flots am]

And I expect a dismissal for lack of jurisdiction.

In Mexico? The dive op could have shot the victim, set her on fire, pushed her out of a skyscraper window into the path of an oncoming train all while being filmed by CNN and nothing would have happened.

However PADI isn't based in MX and the obviously incorrect training wasn't either.

 

[Omisson]

In Mexico? The dive op could have shot the victim, set her on fire, pushed her out of a skyscraper window into the path of an oncoming train all while being filmed by CNN and nothing would have happened.

However PADI isn't based in MX and the obviously incorrect training wasn't either.

The lawsuit was brought in California for a death in Mexico, suing a training organization for what amounts to a defective product sold in a foreign country....

The case in CALIFORNIA isn't likely to survive on subject matter or locus jurisdiction.......

---------- Post added February 15th, 2014 at 12:10 AM ----------

There is of course also the $7 solution:

http://www.scubatoys.com/store/detail.asp?PRODUCT_ID=CoPro

 

[DandyDon]

There is of course also the $7 solution:

CO-PRO Carbon Monoxide Tester discounts on sale ScubaToys

Which will give you an estimate, after a lengthy wait - but you can rent an Analox unit for less for a trip.

 

[Dr. Lecter]

I expect survival of the MTD/MSJ phase and a nuisance value settlement where PADI still refuses to make any changes.


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[swamp diver]

And I expect a dismissal for lack of jurisdiction.

I'm not a lawyer but if Sunshine Charters is American owned and appears to have an office in California, but has a dive shop in Mexico how does that affect the case? I seem to recall this was the case with the Roatan double CO fatality whereby the PADI 5 star dive resort was a US registered business doing business in Honduras.

From post #48

7. Plaintiff Cross is informed and believes, and based thereon alleges that Defendant Sunshine Dive and Charter (Sunshine) [also possibly known as “Dive Cabo”] is a business of unknown form located in Cabo San Lucas, Baja California Sur, Mexico, and is doing business in San Diego County, California. Plaintiff Cross is further informed and believes, and based thereon alleges that Sunshine has its office in San Juan Capistrano, California. Plaintiff Cross is further informed and believes that at all relevant times, Defendant Sunshine held itself out to be PADI certified as to diving tank filling and maintenance. Plaintiff Cross is further informed and believes, and based thereon alleges that Sunshine is American owned. Plaintiff Cross is further informed and believes, and based thereon alleges that Sunshine is a franchisee of PADI, in that PADI controls and enforces the use of its name, logo, and brand, and Sunshine uses that name, logo, and brand with the consent of PADI.

 

[flots am]

I'm not a lawyer but if Sunshine Charters is American owned and appears to have an office in California, but has a dive shop in Mexico how does that affect the case? I seem to recall this was the case with the Roatan double CO fatality whereby the PADI 5 star dive resort was a US registered business doing business in Honduras.

That's interesting.

I've used several Caribbean dive operations that wanted to be paid to a US person/company, in US dollars, even though the actually dive operation was somewhere else.

 

[swamp diver]

That's interesting.

I've used several Caribbean dive operations that wanted to be paid to a US person/company, in US dollars, even though the actually dive operation was somewhere else.

Agreed I can name several Cozumel dive operations which are like that. Dive in Cozumel but pay into US domiciled account.

So we possibly have a US registered company operating in Mexico.

 

[Omisson]

I'm not a lawyer but if Sunshine Charters is American owned and appears to have an office in California, but has a dive shop in Mexico how does that affect the case? I seem to recall this was the case with the Roatan double CO fatality whereby the PADI 5 star dive resort was a US registered business doing business in Honduras.

From post #48

7. Plaintiff Cross is informed and believes, and based thereon alleges that Defendant Sunshine Dive and Charter (Sunshine) [also possibly known as “Dive Cabo”] is a business of unknown form located in Cabo San Lucas, Baja California Sur, Mexico, and is doing business in San Diego County, California. Plaintiff Cross is further informed and believes, and based thereon alleges that Sunshine has its office in San Juan Capistrano, California. Plaintiff Cross is further informed and believes that at all relevant times, Defendant Sunshine held itself out to be PADI certified as to diving tank filling and maintenance. Plaintiff Cross is further informed and believes, and based thereon alleges that Sunshine is American owned. Plaintiff Cross is further informed and believes, and based thereon alleges that Sunshine is a franchisee of PADI, in that PADI controls and enforces the use of its name, logo, and brand, and Sunshine uses that name, logo, and brand with the consent of PADI.

A) would not change the liability deficiency in naming PADI

B) could potentially give in rem jurisdiction if there are any assets or property in the US


BUT..... Often the booking agent is for the trip itself- NOT the particular dive shop being used. Unless there is a unity of ownership or contractual relation the liability is unlikely to attach...

---------- Post added February 15th, 2014 at 08:36 PM ----------

Agreed I can name several Cozumel dive operations which are like that. Dive in Cozumel but pay into US domiciled account.

So we possibly have a US registered company operating in Mexico.

No what we have is wild speculation. You notice it was NOT plead with specificity- but rather "upon information and belief" - which means they have no legally sufficient basis to plead that information properly.

They MAY obtain it- or it MAY NOT even exist. It is a tell that either:

A) the lawyer didn't do his pre-suit due diligence to confirm this info

Or

B) he knows it isn't the case but wanted to push the suit forward anyway but not be held liable for a frivolous action

Or

Some combo of the two.

The situs of the accident and it's proximate cause are still in MEXICO not the US.


And speaking of PADI's non-liability, the case law I've examined does not indicate a bad air death can be proximately caused by bad scuba training- it seems to sound solely in faulty goods delivery- on the shoulders of the direct supplier.

---------- Post added February 15th, 2014 at 09:26 PM ----------

On December 23, the court agreed to full submission without argument on the motion to dismiss this case... I'd say its about done.

---------- Post added February 15th, 2014 at 09:37 PM ----------

In other words all discovery and practice related to this case was suspended until the issuance of the order to dismiss back in December.

ORDER granting [70] joint motion to continue the dates in the case management order. Upon reivew, the Court finds good cause to vacate the dates in the current case management order (ECF No. 44) until the pending motion to dismiss is resolved. The parties are ordered to contact the Court within three (3) days of a ruling on the motion to dismiss if the case remains pending in this district. Signed by Magistrate Judge Mitchell D. Dembin on 12/18/13.

---------- Post added February 15th, 2014 at 09:38 PM ----------

I expect survival of the MTD/MSJ phase and a nuisance value settlement where PADI still refuses to make any changes.


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all discovery and practice related to this case was suspended until the issuance of the order to dismiss back in December.

ORDER granting [70] joint motion to continue the dates in the case management order. Upon reivew, the Court finds good cause to vacate the dates in the current case management order (ECF No. 44) until the pending motion to dismiss is resolved. The parties are ordered to contact the Court within three (3) days of a ruling on the motion to dismiss if the case remains pending in this district. Signed by Magistrate Judge Mitchell D. Dembin on 12/18/13.


What kind of law do you practice?

 

[t4e]

as i mentioned before we dove 6 days this week with the dive shop in question, and on the last day i raised the issue of the incident...i can tell you this much, the media coverage is missing some serious details of the incident, which i am not surprised of

and FWIW they have the results of the air tests clearly posted on the wall in the shop