Diver in California Sues for Being Left

[cdiver2]

Punitive damages are not available in California (or anywhere else that I know of) for negligence. They are available only for so-called intentional torts. So since even Dan the Man is not alleging that he was left behind on purpose, punitive damages really should form no part of this discussion.

Now if we can just get back to flogging the horse, only 182 more posts to satisfy my prediction that we all are doomed to read 300 more posts on this topic.

Its seems obvious some people want to discuss it further.
If you don't like it don't read it, you don't have to be a genius to figure that one out.

 

[Night Diver]

Its seems obvious some people want to discuss it further.
If you don't like it don't read it, you don't have to be a genius to figure that one out.

Nice smartlecky snipe but you're adding what is it exactly to the thread?

 

[cdiver2]

Nice smartlecky snipe but you're adding what is it exactly to the thread?

Has posted to the thread early on but I would like to HEAR others input. If one wishes to whine about how long a thread is running there is a whine department

 

[solo_diver]

I can see myself suing under certain circumstances. I wonder why he felt that the crew lied. was there some interpersonal conflict we are not aware of?
I say don't judge this guy, he may be doing what any of us would do.
then again, he may be a 'litigious jackass'
But this is yet again another reason to be a shore diver (that's me!)

 

[DA Aquamaster]

In California we have a comparative negligence rule, whereby if negligence by more than one person is found in this case, then at least as a legal matter the blame and the damages will have to be apportioned according to the degree of fault. I'm not sure how much, if any of the fault will be applied to Dan.

In the early 20th century workers compensation cases were handled the same way. If the worker's actions or the actions of a co-worker contributed to the accident in any way, the employer was not liable. This included situations where a worker accepted a job where he knew there was some risk. For example if he fell from a catwalk with no railing, he would be considered at fault because he accepted the job and the risk of walking across the catwalk knowing there was risk. Similarly, if the employer hired a raging lunatic, and another worker was pushed off the catwalk by the raging lunatic, the employer would not be liable even though they knowingly hired the raging lunatic to work in a setting where he posed a threat to others. In short, under the old sytem the employer was not liable if any other condition or party could be found at fault.

This of course meant that every case was litigated and that no effective effort was ever made to find what the empoyer could have done differently or find ways to improve safety. Worker comp reform in this country occurred to ensure that injured parties could receive speedy payment for medical costs and damages but more importantly so that the focus would be on finding the work related cause of the accident and identify what employers could do better to improve safety rather than on assigning blame to someone else.

Now the worker comp systems in most states still have serious faults, but the design of the systems in general does ensure that employers are encouraged to identify areas that need improvement and to address them. If they do not, insurance premiums get very costly and damage settlements get very expensive.

The point being that this situation is really no different. The diver may not have done everything possible to avoid being left behind, or perhaps even known everything he could have done to avoid being left behind, but that is not relevant. The critical safety issue is that the DM and boat captain should have known the diver was not aboard the boat and should have initiated an immediate search for him.

To argue differently is to return to and embrace an antiquated legal concept where the captain and DM could have made an argument like "the diver should be held at fault because he watched Open Water and knew there was a risk of being left behind by incompetent DM's and boat captains and accepted that risk by getting off the boat." So personally, I see no flaw in the logic of the court, as the court is simply applying a doctrine that will in the end help assure that fewer similar events occur and will help ensure that boat captains and DM's who are paid to supervise others do so in a competent and professional manner.

A comparative negligence rule would make sense in this case perhaps, but only in regard to what percentage of the settlement should be paid by the captain and the DM.

 

[Night Diver]

Has posted to the thread early on but I would like to HEAR others input. If one wishes to whine about how long a thread is running there is a whine department

Subtlety appears lost on you my friend. People can post on this topic all they want, it should be clear (even to a sub-genius like myself) that my jibe is/was good-natured. It's not like I am the first (or even the fifth out of the last six posters) to note the beaten-to-death nature of this discussion. But let us flog on, perhaps we'll come up with a previously-unthought-of angle.

It was you however who launched the uninvited and unwarranted personal attack on me. Perhaps there's a department next to the whine department for that sort of thing.

 

[cdiver2]

Subtlety appears lost on you my friend. People can post on this topic all they want, it should be clear (even to a sub-genius like myself) that my jibe is/was good-natured. It's not like I am the first (or even the fifth out of the last six posters) to note the beaten-to-death nature of this discussion. But let us flog on, perhaps we'll come up with a previously-unthought-of angle.

It was you however who launched the uninvited and unwarranted personal attack on me. Perhaps there's a department next to the whine department for that sort of thing.

I don't beat around the bush or blow smoke up peoples b*tt I tell it like I see it, just like you with the whine about the long running thread. Why did I Pick you out?, again simple thats not your first whine about it in this post, could it be YOU ARE flogging on this?

AS YOU SAID "people can post on this topic all they want" all I am saying if you don't like it running a long time don't read it, I am following the discussion and don't want to have to read about people whining about how long its been going on stick to the topic....Separate it, put your complaint"S into the whine department then I can chose not to read it if I want.

 

[H2Andy]

A comparative negligence rule would make sense in this case perhaps

that's exactly what they will do, and you got the concepts right.

in the old days, "contributory negligence" was a bar to recovery (if the victim
was 1% at fault, no recovery).

that changed, so that now we have "comparative negligence." if the victim is
50% at fault, his/her award gets deducted more or less 50%.

i say "more or less" because there are two types of damages (economic and
non-economic), and at least under Florida law, the victim recovers all the economic
damages they are entitled to under the award (minus their share of negligence) from
ANY DEFENDANT but as to the non-economic damages, they can only recover
each defendant's share.

ok.... so.. say the jury finds negligence as follows:

diver: 25%
DM: 25 %
Captain: 50%

and awards the diver $10,000 for lost wages, medical bills, costs, etc. (economic damages)
and $100,000 for pain and suffering (non-economic damages):

diver gets $7,500 in economic damages, and he can either collect from the DM
or the Captain, or both.

diver gets $75,000 in non-economic damages, but he can only collect $25,000 max
from DM and $50,000 from Captain.

So say DM is broke and has not a penny, the most the diver will get is $57,500 even
though he was entitled to $82,500 under the verdict.

clear as mud?

(this assumes Florida law. California law may be different)

 

[wolf eel]

Hope I never lose a group on a boat dive and get left at sea because somehow it will be my fault. The idea of the percentage is great but the fact in this case the only thing that made this guy do the BOB was the check in and out all other problems that happened or what he did does not matter as he was check on the boat and off the boat twice. Was it his fault the second time also ? And what percentage does Carlock get for the second time ? Because he should now lose loads of his fault percentage because it shows how bad they are by doing it twice. That should show a complete lack of ability to insure safety.

 

[WJL]

Punitive damages are not available in California (or anywhere else that I know of) for negligence. They are available only for so-called intentional torts. So since even Dan the Man is not alleging that he was left behind on purpose, punitive damages really should form no part of this discussion.

This is not exactly right. In jurisdictions where punitive damages are allowed, such damages can be awarded for active misconduct which falls short of intentional acts. The courts have used such descriptive terms as wilful, wanton, grossly negligent, reckless, or malicious to describe the level of positive misconduct necessary to support a claim for punitive damages. All the tests convey the general idea that the defendant's misconduct must be so flagrant as to transcend simple negligence. But punitive damages are not limited to intentional torts.