Diver in California Sues for Being Left

[pilot fish]

If a condition exists by other than an "act of God", then someone caused it and is, therefore, responsible. You said, "A department store mannequin is thrown overboard and checked out..." You set up two conditions which applied to the dummy: "thrown overboard", and "checked out". The unnamed party is responsible for the former and the DM is responsible for the latter. Whether those acts were negligent and whether they resulted in damages is another matter.

You are right, it is a shift of responsibility, not an absence of it. An act of God did cause the dummy to be in the water. The responsibility rest with person that put the dummy in the water.

 

[MaxBottomtime]

The difference between Drifting Dan and a mannequin is that Dan had control of his own actions while in the water. He chose to ignore the pre-dive briefing, specifically the point of staying within the perimeter of the rig. He chose to ignore his Open Water training pertaining to buddy seperation. He then chose to make no effort to swim toward the boat after surfacing. How anyone can think he was not responsible for his own actions while in the water is beyond reason. If I was on the jury, I would give the captain time-served probation. He was the only one involved that accepted any responsibility. He had his license suspended and had to hire a relief driver. I would fine the DM and the shop that employs him $25,000, which should cover court costs and attorney fees. I would reprimand Dan and advise him to stick to diving within his training limits. With his lack of skills and judgement, he had no business diving ten miles offshore in 700 feet of water during foggy conditions.

 

[DEEPLOU]

The difference between Drifting Dan and a mannequin is that Dan had control of his own actions while in the water. He chose to ignore the pre-dive briefing, specifically the point of staying within the perimeter of the rig. He chose to ignore his Open Water training pertaining to buddy seperation. He then chose to make no effort to swim toward the boat after surfacing. How anyone can think he was not responsible for his own actions while in the water is beyond reason. If I was on the jury, I would give the captain time-served probation. He was the only one involved that accepted any responsibility. He had his license suspended and had to hire a relief driver. I would fine the DM and the shop that employs him $25,000, which should cover court costs and attorney fees. I would reprimand Dan and advise him to stick to diving within his training limits. With his lack of skills and judgement, he had no business diving ten miles offshore in 700 feet of water during foggy conditions.

If I was on that jury with you we would have a hung jury.
The diver left behind has absolutly no responsibility in being left behind. No matter what he did, it was the boat crew that marked him on board, left the area, marked him in the water for a second dive at a different site and then after second dive realized he did not check in (and they thought it was at the second dive site).

It is also quite clear that most of thoese on this theread if not all have never experienced the feeling of getting back to the tie in point and finding nothing tied in. And then to get to the surface and find no boat!!.
I have had the displeasure of the feeling when the boat was not tied in where it was when I decended. But luckly the boat realized they were adrift, and were circling above when I surfaced.

 

[wolf eel]

Do some of you not understand that if you are checked in and you are not and the bus leaves you standing in the wash room how is this your fault ? You where checked in.

 

[WJL]

The difference between Drifting Dan and a mannequin is that Dan had control of his own actions while in the water. He chose to ignore the pre-dive briefing, specifically the point of staying within the perimeter of the rig. He chose to ignore his Open Water training pertaining to buddy seperation. He then chose to make no effort to swim toward the boat after surfacing. How anyone can think he was not responsible for his own actions while in the water is beyond reason. If I was on the jury, I would give the captain time-served probation. He was the only one involved that accepted any responsibility. He had his license suspended and had to hire a relief driver. I would fine the DM and the shop that employs him $25,000, which should cover court costs and attorney fees. I would reprimand Dan and advise him to stick to diving within his training limits. With his lack of skills and judgement, he had no business diving ten miles offshore in 700 feet of water during foggy conditions.

Max, I would agree with assigning some measure of blame to Dan if the boat had realized he was missing at the first dive site, looked for him and couldn't find him. Under those circumstances I think that his actions helped cause the problem. But when the boat did not even realize he was not on board, that changes it for me. Yes, Dan should have been closer to the boat and maybe should have tried to swim back. But that exact scenario happens all the time on dive boats. People go divng who are not at the highest skill level. The boats know this, and are happy to have them. Charter boats absolutely must plan for the inevitable fact that somebody is going to get separated from the boat, for whatever good or bad reason. Just because divers are lacking in skill doesn't mean the boat can leave them behind. And if the boat sails off obliviously and leaves them, it is the boat's fault and not the divers'.

 

[MaxBottomtime]

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[MaxBottomtime]

If I was on that jury with you we would have a hung jury.
The diver left behind has absolutly no responsibility in being left behind. No matter what he did, it was the boat crew that marked him on board, left the area, marked him in the water for a second dive at a different site and then after second dive realized he did not check in (and they thought it was at the second dive site).

It is also quite clear that most of thoese on this theread if not all have never experienced the feeling of getting back to the tie in point and finding nothing tied in. And then to get to the surface and find no boat!!.
I have had the displeasure of the feeling when the boat was not tied in where it was when I decended. But luckly the boat realized they were adrift, and were circling above when I surfaced.

I agree that he had no responsibility in being left behind. Nobody has said that. I said he made no effort to get back to the boat when he surfaced, even though he could see it as well as the rigs. He also failed to follow the dive briefing and his Open Water training. If he had done anything right that day the DM would have never had a chance to screw up. Yes, the DM did screw up and the Captain mistakenly trusted the DM, but Dan has not once admitted to making a single mistake, instead he decided to make up stories about getting skin cancer and the captain and DM lying to the Coast Guard.
BTW, I surfaced once at the same rig to find the boat had left. I didn't panic, nor did I get cancer. I began climbing the ladder of the rigs to ask the workers to radio for the boat to come back. As I got to the top of the ladder I heard the DM yell to me. Another diver pulled a Drifting Dan and surfaced downcurrent. The boat had to go pick her up and leave the DM with me. We both swam a couple hundred yards to reach the boat. The only person that I was bothered by that day was the woman who didn't follow the instructions to descend/ascend at the SE leg of the rigs.

 

[pilot fish]

I agree that he had no responsibility in being left behind. Nobody has said that. I said he made no effort to get back to the boat when he surfaced, even though he could see it as well as the rigs. He also failed to follow the dive briefing and his Open Water training. If he had done anything right that day the DM would have never had a chance to screw up. Yes, the DM did screw up and the Captain mistakenly trusted the DM, but Dan has not once admitted to making a single mistake, instead he decided to make up stories about getting skin cancer and the captain and DM lying to the Coast Guard.
BTW, I surfaced once at the same rig to find the boat had left. I didn't panic, nor did I get cancer. I began climbing the ladder of the rigs to ask the workers to radio for the boat to come back. As I got to the top of the ladder I heard the DM yell to me. Another diver pulled a Drifting Dan and surfaced downcurrent. The boat had to go pick her up and leave the DM with me. We both swam a couple hundred yards to reach the boat. The only person that I was bothered by that day was the woman who didn't follow the instructions to descend/ascend at the SE leg of the rigs.

Does the fact that he could not descend with his buddy because he could not clear, he claims, change anything for you? What is the responsibilty of the buddy? If the buddy ascend with him none of the other events would have unfolded . Just a thought.

 

[MaxBottomtime]

Does the fact that he could not descend with his buddy because he could not clear, he claims, change anything for you? What is the responsibilty of the buddy? If the buddy ascend with him none of the other events would have unfolded . Just a thought.

The two buddies he was with both stated that they thought he was with someone else. It was not a buddy team. Dan was basically diving in a loose group. Unless he was with an implied buddy, he should have been 100% responsible for himself while in the water. One of the divers he was following is an instructor at the shop that chartered the boat.
Because he couldn't clear even after ascending, he should have aborted the dive and surfaced under the rig. Instead, he tried for fifteen minutes alone, losing sight of the other divers' bubbles and the rig itself. When he finally surfaced he was still within sight of the boat, but admitted he made no attempt to swim toward it. He thought that they would come for him when they discovered him missing. By the time the other divers got back on the boat and roll call was taken, Dan was already far down current. There were already many mistakes made, long before the DM began making his.
It is not Dan's fault that the DM was wreckless and it was not Dan's fault that the Captain is ultimately responsible for what goes on aboard his boat. It is, however Dan's fault that he disregarded the briefing, his training and any resemblance of self-sufficiency. If nobody on the boat made a single mistake that day, Dan would still have been drifting in the fog and may not have been found by the Sundiver even if they had known to look. The Captain has already paid for his mistake. The shop and their DM will likely settle for a large wad of cash. Dan, who had no business being on the boat that day will walk away richer, but will probably never admit his mistakes.

 

[jbd]

It is also quite clear that most of thoese on this theread if not all have never experienced the feeling of getting back to the tie in point and finding nothing tied in. And then to get to the surface and find no boat!!.

I've had the pleasure of not being able to find the mooring line in the Florida Keys. Viz had dropped by half to two thirds from the beginning of the dive. Upon ascending to the surface, I found we had 6 foot seas(with the ocassional 8 footer according to the captain). When I broke the surface I was in a trough. I rode one wave up, did a quick scan and spotted a boat, not the one I had been on, but a boat non the less. As I rode down into the next trough I kept facing the direction of that boat and knew I would make one more scan for "my" boat. If I had not found "my" boat I would have found the other again and started swimming for it even though is was easily more than one hundred yards away. On the second wave crest I found "my" boat about 50 yards away. Quickly aimed the compass before going down the trough. On the third crest The captain spotted me, we signaled each other and I swam to the boat. All ended well and the compass made it easy to get off the surface and swim UW to the boat.

Now lets assume "my" boat had left me and the other boat had not seen me and left the site also. I knew because of the compass and where we were which way land was. I would have swum towards land.

The point of all this??? I find it strange that any individual would just decide to drift in the current hoping someone would realize they were missing and come find them. I didn't want to be left in the water and was quite willing to make whatever effort it took to get to a boat or land.

There is a post in this thread about responsibility and delegating authority. Any person whogets in the water has a responsibility to get themselves out of the water. There may be some sharing of accounting for the location of the person but ultimately as divers we choose to get in the water and we ultimately have the responsibility to get ourselves out of the water by following protocols and using common sense. Mr. Carlock chose not to use either IMO.