Diver in California Sues for Being Left

[scubasean]

Settlement only occurs if the defense thinks the plaintiffs case is very strong and it's reasonable to assume they will get a higher amount at verdict than what is offered. The plaintiffs will settle for a reasonable offer rather than shoot the dice on a jury verdict and reversal on appeal. I don't see this case settling since it seems kind of obvious that there is contributory negligence on the part of the diver and assumed risk.

You may want to reconsider your wording....The "higher amount at verdict" is only one of many costs to be considered....The defense also factors in the cost of the litigation itself...Most cases never hit the courtroom, and only a tiny fraction of those ever get to appeal.

I see this settling, but nowhere near the asked amount.

 

[cdiver2]

Does the diver bear any level of responsibility in your mind?

NO the dive boat left the dive site without him. Did he make mistakes yes he should not have gone back down to look for the group, did the group/buddy make a mistake yes he/they should have surfaced with him. Should he have a signaling device yes he MIGHT have been seen. But the bottom line is the dive boat left the site NOT KNOWING there was a diver still in the water no excuse for this.

 

[pilot fish]

You may want to reconsider your wording....The "higher amount at verdict" is only one of many costs to be considered....The defense also factors in the cost of the litigation itself...Most cases never hit the courtroom, and only a tiny fraction of those ever get to appeal.

I see this settling, but nowhere near the asked amount.

Cost is always factored in, that's a given. If the plaintiff will accept 50,000/100,000 it might settle rather than defense take a chance with a jury, and cost of trial. But if plaintiff gets greedy and holds fast to a million or more demand then I see it going to trial. Defense might even get a summary judgment.

 

[Deepseabob]

And as a Coast Guard Search and Rescue Controller I can also tell QUOTE]

Slightly of topic but given your credentials maybe you could answer a question for me. As the dive industry grows I Think the occurrence of divers being left is also growing. So I recently purchased a PLB working on 406MHz giving Lat & Long and also 121.5 MHz, my question is what are the chances of being rescued in remote places like Yap, Palau and Papua New Guinea.
Thanks for any input.

In Yap and Palau you would be rescued and probably within a couple of hours. Both of them are in our Area of Responsibility so when the 406MHZ signal is picked up by the Satellite we would get the alert here in Guam and we would then contact the local SAR authorities in those places and give them the location of the alert. In Papua New Guinea you might end up waiting a little longer. The little dealing I have had with the SAR authorities in that country haven't given me a lot of confidence that a search would begin in a short amount of time and in SAR, the quicker the search begins, the better the chance of finding what you are looking for. I haven't had any dealings with the PLB yet but I am guessing they have registration paperwork to fill out similar to a 406 EPIRB and if they do, I would stress to fill out that registration data as completely as possible. It really helps in confirming that it is not an accidental activation and is an actual SAR case

 

[RonFrank]

You cant sue for negligence about being left behind? The skin cancer thing is definately a red herring, but of course i have heard similar tag ons for little infractions before to make it seem like there were consequences beyond the obvious.


Mere details

It's not about what is RIGHT, or in LAW, only what the lawyer can argue.

Chances are that they will settle out of court, the lawyer takes 50%, and everyone pays.

Ron

 

[jbd]

NO the dive boat left the dive site without him. Did he make mistakes yes he should not have gone back down to look for the group, did the group/buddy make a mistake yes he/they should have surfaced with him. Should he have a signaling device yes he MIGHT have been seen. But the bottom line is the dive boat left the site NOT KNOWING there was a diver still in the water no excuse for this.

First let me make it clear that IMO mistakes were made by the DM and he must bear, IMO, mostof the responsibility. The dive operation, Ocean Adventures Dive Co, must bear some responsibility and I understand that by default the captain will be forced to accept someresponsibility.

In addition to the above, IMO, the other three divers bear some responsibility and the diver himself bears the responsibility of creating and apparently exacerbating the situation.

With your line of thinking, it would be ludicrous for anyone to take a person out on a boat, or be a DM or instructor, or be the owner/operator of any business that involves customers. For that matter, maybe the instructor(s) that trained and certified him should be held responsible as well for his poor decisions.

The bottom line is that this diver bears some responsibility for the situation he got himself into and the decisions he made once he was in it.

 

[cdiver2]

In Yap and Palau you would be rescued and probably within a couple of hours. Both of them are in our Area of Responsibility so when the 406MHZ signal is picked up by the Satellite we would get the alert here in Guam and we would then contact the local SAR authorities in those places and give them the location of the alert. In Papua New Guinea you might end up waiting a little longer. The little dealing I have had with the SAR authorities in that country haven't given me a lot of confidence that a search would begin in a short amount of time and in SAR, the quicker the search begins, the better the chance of finding what you are looking for. I haven't had any dealings with the PLB yet but I am guessing they have registration paperwork to fill out similar to a 406 EPIRB and if they do, I would stress to fill out that registration data as completely as possible. It really helps in confirming that it is not an accidental activation and is an actual SAR case

Yes it works just like a Epirb and is registered to me with contact phone numbers if it is activated. There is also a phone number to call in case of accidental activation also states if it is accidentally activated and I call the number right away to let them know it is false there would be no penalty, you can not beat that.

Thanks for the help
David

 

[cdiver2]

First let me make it clear that IMO mistakes were made by the DM and he must bear, IMO, mostof the responsibility. The dive operation, Ocean Adventures Dive Co, must bear some responsibility and I understand that by default the captain will be forced to accept someresponsibility.

In addition to the above, IMO, the other three divers bear some responsibility and the diver himself bears the responsibility of creating and apparently exacerbating the situation.

With your line of thinking, it would be ludicrous for anyone to take a person out on a boat, or be a DM or instructor, or be the owner/operator of any business that involves customers. For that matter, maybe the instructor(s) that trained and certified him should be held responsible as well for his poor decisions.

The bottom line is that this diver bears some responsibility for the situation he got himself into and the decisions he made once he was in it.

In you opinion, but the bottom line is what ever procedures are used on a boat the Capt has to OK them, who ever is doing DM the Capt has to agree to this and once again the boat left a dive site with a diver in the water end of story.

The thing I get from all these posts & threads is that the charter and Capt is well known and liked in the area and most of the time he has done a good job but on this one he screwed up...pay the price.

 

[scubasean]

In addition to the above, IMO, the other three divers bear some responsibility and the diver himself bears the responsibility of creating and apparently exacerbating the situation.

Indeed...I am quite surprised that nobody he was diving with noticed he was missing...

I haven't paid attention to the facts...Was he a local? Were others on the boat friends of his? (You need not tell me, because these details are likely posted elsewhere...)

 

[RonFrank]

And most others the Captain IS responsible. If for no other reason then, it's HIS JOB.

Before you go off on one of your rants PilotFish, get the facts. The boat did NOT account for this diver. He was LEFT. The reality is that the Captain admitted to the problem, and felt very bad based on first hand accounts I read.

While IMO filing a lawsuit is a bit absurd for the stress that 4 hours of being at sea wondering if you are going to survive would create, the guy is going to win, or settle out of court, and bank some cash.

The facts are 1) He entereed the water under the eye of the crew, but they had no idea he was NOT on board at the end of the dive 2) The dive OP was NOT aware he was missing until the went to a second dive site 3) If another boat had not seen him, he'd likely be dead.

This trial will never see a courtroom. I'm betting that the people named in the suit includes the insurance company that insures the dive OP. EVERYONE must be named in a lawsuit when filing, but you can BET even if this is against the Dive OP, the REAL players are the big guys insuring the Dive OP. In fact I'd bet that if the Dive OP was NOT insured, unless they are bigtime $$$, no lawyer would touch this case as there is little $$$ in it for them if there can't go after someone big.


Ron

The Captain is not responsible for*everything*. If your gear fails and you are injured, is that his responsibility? Is he at fault if you get the bends? If you swim off from your dive buddy chasing a fish to 300 ft and die, is that his responsibility? Is it his responsibilty to do a head count and make sure all divers return from a dive and not leave a dive location until he is sure all hands ar aboard? Absolutely.