Diver in California Sues for Being Left

[WJL]

Does the law differ that much from state to state ?

Wolf, it does. Just for example, under the laws of Michigan, no punitive damages are allowed ever. The Michigan courts won't permit an award of damages just to punish somebody. There is something called "exemplary damages" but its not the same as that term is used in other jurisdictions - its a type of super-duper compensatory damages for hurt feelings.

Just about every state has its own rules on whether, why and how punitive damages can be awarded. This is part of the evil conspiracy by lawyers to maintain full employment.

 

[MaxBottomtime]

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.

So let me get this straight. If the DM had made a perfect roll call the first time, Dan would have magically appeared out of the fog floating back to the boat? The only facts that are real are that the DM's mistakes caused the search to be made at the wrong site and a possible recovery to be delayed. There is no guarantee they would have found Dan sooner than the Boy Scouts did. The other fact is that Dan was drifting away in the fog long before the rest of the divers were back onboard from the first dive. If they had made a good roll call and noticed him missing, then searched in the fog and happened to find him, would you still blame the DM and Captain for his prediciment? Apparantly, Dan still does.

 

[WJL]

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.

From what you say, it seems that the CA standard for awarding punitive damages is pretty tough. But if I had to bet right now, I'd make it about 60/40 in favor of the plaintiff that a judge would dismiss a claim for punitives for Dan pre-trial. The lawyers representing both sides in the dispute will be making their own assessments of just that issue in trying to come up with a settlement.

As you know, the 5% of cases that don't settle usually have one side making a wildly different assessment of its chances at trial than the other side. This one has a lot of interesting features that both sides have to think about.

For the defendant there's the idea floating around in many people's (potential juror's) heads of scuba diving as a crazy-dangerous sport, so anything that happens to you is just what you signed on for. The defendant also has the good stuff that Dan is not the greatest plaintiff. He's apparently not all that skilled so what is he doing out there in the first place, and there's this business of him not making much of an effort to get back to the boat by himself.

For Dan's side, he's got the horror factor of being left floating in the ocean all alone miles from shore. Most people would find that a scary thing to think about happening to themselves, and would want to make damn sure it didn't. Ordering somebody to pay a big pile of dough is one way to get dive boats to be more careful counting their divers.

If the two sides don't roughly agree on what a CA jury is likely to do with this case and thus come to a settlement, then it could get tried. It will be interesting to see how this one comes out.

 

[H2Andy]

I do not believe that any form of negligence under California law (including so-called "gross negligence") will support an award of punitive damages.

yeah, from reading your post, i think you're right.

he can still get pain and suffering and emotional distress, though, and that could
get him quite a lot of money either in settlement or at trial.

 

[wolf eel]

MaxBottomtime So let me get this straight. If the DM had made a perfect roll call the first time, Dan would have magically appeared out of the fog floating back to the boat?

No not at all but it would have showen that they did the first part of the job right.

The only facts that are real are that the DM's mistakes caused the search to be made at the wrong site and a possible recovery to be delayed. There is no guarantee they would have found Dan sooner than the Boy Scouts did.

The only one fact is he was checked in and out twice which is really bad. But at least you started 'A' in the right place and with in a reasonable time frame to start a proper search.

The other fact is that Dan was drifting away in the fog long before the rest of the divers were back onboard from the first dive. If they had made a good roll call and noticed him missing, then searched in the fog and happened to find him, would you still blame the DM and Captain for his prediciment

No I would not. He drifted away big deal but he drifted and was left behind and that is the only true point in his law suit is being left behind

? Apparantly, Dan still does.

How do we know nothing happened that way it was the they left him behind way.

 

[Groundhog246]

The defendant also has the good stuff that Dan is not the greatest plaintiff. He's apparently not all that skilled so what is he doing out there in the first place, and there's this business of him not making much of an effort to get back to the boat by himself.

Do the charter boats in CA not make a reasonable effort to make sure the diver is qualified for the dives? I've never dove in CA, nor done a large number of charters. The ones I have done have checked my C card (AOW) and determined that I had previous experience in deep, cold water (area where I chartered last year had wrecks in 70 to 120 feet with bottom temps from the mid 50's down to 42F @ 100ft and below, before we departed the dock. The couple of people who had not done that type of dive were with very experienced divers who had numerous dives in those conditions and were diving in pairs.

I am not familair with CA (or forthat matter US law), but if punitive damages are not allowed, then how did that lady who was scalded with McDonalds coffee get awarded 3 million in punitive damages?

 

[wolf eel]

Groundhog246 I am not familair with CA (or forthat matter US law), but if punitive damages are not allowed, then how did that lady who was scalded with McDonalds coffee get awarded 3 million in punitive damages?

I think they do but they like to change the wording in different states but the out come is the same.

 

[DepartureDiver]

I am not familair with CA (or forthat matter US law), but if punitive damages are not allowed, then how did that lady who was scalded with McDonalds coffee get awarded 3 million in punitive damages?

The woman in the McDonald's case was elderly (therefore thinner skin) and suffered horrible burns with McDonald's knowing the temperature of their coffee. One suffering an injury entitling them to compensation does not give rise to punitive damages. Punitive damages are not the norm and are only allowed when the conduct is so egregious with the party having knowledge of what is happening.

 

[Xanthro]

"I did not think spilling coffee on your lap whilst driving would go, boy was I wrong"

There is no such case.

I think you are referring to the Stella case. Where the plantiff sued McDonalds over spilled coffee.

Most people think this case is silly, because they do not know the facts behind it.

I'll give you the simple details.

Normal coffee at your home is 120-130 degrees.
That super hot coffee that you cannot drink, because it burns your lips, is 150f.
The McDonalds coffee in question was over 190f. It could have been as high as 210f. Right at the boiling point.

The coffee was so hot, that if someone drank it, that person would die.

Mrs. Stella, the plantiff, opened the cup, some splashed on her. She was parked and not moving at the time. The coffee caused third degree burns on her hand, which caused her to spill the coffee in her lap. The resulting 3rd degree burns required the removal of her labia.

During trial, McDonalds claimed that the number of drinkers maimed by their coffee per year was statistically insignificant. Not injured, maimed. As in, the loss of a body part, or function.

Yes, McDonalds coffee could be that hot. Which is unreasonable.

The jury awarded Stella the amount in sales that McDonalds does in one day for their coffee. That is where the outrageous amount of money came from.

Xanthro

 

[Xanthro]

The woman in the McDonald's case was elderly (therefore thinner skin) and suffered horrible burns with McDonald's knowing the temperature of their coffee. One suffering an injury entitling them to compensation does not give rise to punitive damages. Punitive damages are not the norm and are only allowed when the conduct is so egregious with the party having knowledge of what is happening

Even without having thinner skin, the injuries would have been substantial.

Any liquid above 170f is very dangerous, as you will burn immediately. The coffee was at least 190f. That is an unreasonable temp.