Diver in California Sues for Being Left

[Night Diver]

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.

Nice euphemism for being a jerk. You must have had a humor-ectomy, as all you can do is characterize my good-natured needling as a "whine." OK I'll be sure not to make jokes in the future if I see you've weighed in on a thread.

Here's how I see it. You are boorish and rude. Your personal attacks are the equivalent of cutting off someone you don't know in a parking lot. You sit there at your computer in Florida taking whacks at strangers because you don't like their opinions. Put away the tin badge and say something worth reading as opposed to garbage from a cliche book.

No beating around the bush there now is there? Have a nice life.

 

[Night Diver]

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.

Recklessness in some instances is treated as an "intentional" state of mind, as are some of the other terms you mention ("willful," "wanton," etc.). I am just about certain though that gross negligence cannot support an award of punitive damages (or as they call them in California "exemplary damages"). But I will do a little research today on the California law on this and report back to you.

I do think though that it's a stretch to characterize the behavior of any of these folks as willful or wanton.

 

[cdiver2]

Nice euphemism for being a jerk. You must have had a humor-ectomy, as all you can do is characterize my good-natured needling as a "whine." OK I'll be sure not to make jokes in the future if I see you've weighed in on a thread.

Here's how I see it. You are boorish and rude. Your personal attacks are the equivalent of cutting off someone you don't know in a parking lot. You sit there at your computer in Florida taking whacks at strangers because you don't like their opinions. Put away the tin badge and say something worth reading as opposed to garbage from a cliche book.

No beating around the bush there now is there? Have a nice life.

Now that we are seriously of topic for this thread I moved our disagreement to where it belongs. http://www.scubaboard.com/showthread.php?p=963395#post963395

 

[michaelp68]

Recklessness in some instances is treated as an "intentional" state of mind, as are some of the other terms you mention ("willful," "wanton," etc.). I am just about certain though that gross negligence cannot support an award of punitive damages (or as they call them in California "exemplary damages"). But I will do a little research today on the California law on this and report back to you.

I do think though that it's a stretch to characterize the behavior of any of these folks as willful or wanton.

In Connecticut, we do not use the term 'gross negligence' to characterize any tortious misconduct. Tortious misconduct may be negligent, reckless or intentional. All three constitute different states of mind. There are instances where punitive/exemplary damages are available for recklessness.

Michael

 

[H2Andy]

yeah, i think we're all saying that punitive damages are not available for simple
negligence.

here in Florida, you need to petition the court to file for punitive damages, and
you will get them (I quote from the statute)

[O]nly if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:


(a) "Intentional misconduct" means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.


(b) "Gross negligence" means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

and there you have it. no punitive damages for simple negligence in Florida.

 

[WJL]

I do think though that it's a stretch to characterize the behavior of any of these folks as willful or wanton.

I think the plaintiff's lawyer will be able to keep a straight face while arguing that if a boat hired to take you to a dive site and back again leaves you behind floating in the ocean, and doesn't even notice you're gone for a few hours and then thinks it lost you miles from where it did lose you, that a reasonable jury could conclude that was wilful or wanton misconduct.

 

[wolf eel]

Does the law differ that much from state to state ? And what percentage of fault does the operator get for doing twice. I am asking again because this just does not make sense he was left behind what else is there.

Also Cdiver2 chill out. I understand your point about thread busters but remain calm and all is good. I agree if one wants to beat the dead horse fly at it or beat at it.

 

[cdiver2]

Also Cdiver2 chill out. I understand your point about thread busters but remain calm and all is good. I agree if one wants to beat the dead horse fly at it or beat at it.

I'm Coooooool

 

[Night Diver]

I do not believe that any form of negligence under California law (including so-called "gross negligence") will support an award of punitive damages. The case citation for that proposition would be Jackson v. Jackson, 5 Cal. App. 4th 1350, 1352 (1992). California law requires "malice, oppression or fraud" in connection with the conduct (with slight paraphrases from the Civil Code as follows):

"Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

"Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

"Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

The oppression, fraud or malice has to be proved by clear and convincing evidence even though the underlying tort need only be established by a preponderance of the evidence.

IMO there's no fraud angle here, the "oppression" angle is pretty iffy so I guess somebody will have to decide whether the conduct here rose to the level of "malice."

WJL, I hear you (at least with respect to the DM) but my personal opinion is it's not likely that a judge or jury could find here by clear and convincing evidence that anybody acted with a "willful and conscious disregard of the rights or safety" of Dan. This "conscious disregard" standard by the way I believe is more or less what was referenced above as "recklessness" in other states and/or in general. But I see the issue so if Dan has even alleged such behavior or included a demand for punitive damages (which I don't know) I'll be curious to see how that's resolved, although 95% of civil cases settle pre-trial so there's no reason to think this one will be any different.

 

[wolf eel]

Night Diver But I see the issue so if Dan has even alleged such behavior or included a demand for punitive damages (which I don't know) I'll be curious to see how that's resolved, although 95% of civil cases settle pre-trial so there's no reason to think this one will be any different.

I bet they take it to court and use all of our examples to explain a great defence for the boat operators. But I think any judge in his or her right mind is going to think of themselves doing the BOB for 5hrs and think how that may effect their life.