The link at the top of the thread isn't working any more, so here are a couple of others with the facts for anybody who wants to read them again.
http://www.cdnn.info/safety/s040428/s040428.html
(this is the story from last year)
http://www.sanluisobispo.com/mld/sanluisobispo/news/politics/10752479.htm (this is the story from January, when the lawsuit is filed)
From the first story, it appears that he was teamed up with three other divers, and was separated from them when he could not equalize his ears and fell behind the group. Somehow, they didn't notice him bailing out of the dive, and more importantly they returned to the boat and didn't say anything about their missing "buddy":
"The spacecraft engineer for Boeing Satellite Systems and three dive buddies entered the water at about 8:45 a.m. Sunday, but Carlock had problems equalizing the pressure in his ears and he fell behind. He tried following his partners' bubbles, but he lost them."
From the second story, it appears that his actual "buddy" was an employee of the group that organized the trip. I assume he was actually a single diver and was paired up with one of the operator's employees so he would have a buddy: "Carlock alleges his diving buddy, Andy C. Huber, a master scuba diver who was a trainer and employee of Ocean Adventures, did not immediately report him missing."
There were a bunch of screwups in the story, but come on - what kind of "dive buddy" is the guy who not only lost track of the less experienced diver that he was supposed to be diving with, but returned to the boat without him, and also didn't notice and report that he still wasn't on the boat before they left?
The group can either refuse to take single divers, or it can offer to match them up with its own employees to provide them with a dive partner. If it matches up one of its experienced divers with a less experienced diver and then lose him in the water and go home without him, they have got to expect trouble.
They compounded the problem by having the dive master report that he was back on the boat when he wasn't, and then (presumably) count him going back into the water at the second dive site. How did that happen? Who was his "buddy" when he is supposed to have gone into the water on the second dive, without actually being there? That isn't why he got lost, but it prevented the start of a search for him in the right place.
All of that is plain negligence - the failure to exercise ordinary care for the safety of another person to whom you owe a duty of care. That is what other people get sued for every day of the week, and there is no reason why dive operators should be exempt from the rules that apply to everybody else.
I would need to hear more facts to know whether the diver was also an idiot for not swimming back to the boat - 400 feet is not that far to swim unless the current is really too much for you - or at least swimming closer to the boat or blowing the damn whistle a little harder to make sure they know you're out there waiting to be picked up.
"He decided to end the dive after 15 minutes, but he was 400 feet down current from an oil platform where the boat was anchored. He blew his whistle to attract attention. 'I figured when the dive was over they would realize I was missing and come looking for me,' Carlock said."
Maybe he couldn't have done any more than he did, but I would never just "figure" that they would come looking for me, without making some real effort to make sure they knew where I was. I wouldn't expect a jury to knock off a very big percentage of a damages award for what he may have done wrong to contribute to his own injury, but I think there's a chance they would reduce it some. On the other hand, I don't think there's any chance that he will get anything close to the $3 million the lawsuit is claiming.
I am a lawyer, but not in California. I understand that California has adopted a form of "comparative negligence" so that a person who is even slightly at fault in creating his own injury will have his damages reduced in proportion to his own fault. So if the jury thinks he was 10% at fault, his claim against the defendants would be reduced by 10%. If they thought he was 50% at fault, his claim would be cut in half.
