"Drifting Dan" Carlock wins $1.68 million after being left at sea

[Leejnd]

As far as the law is concerned, an employer is responsible for the negligent acts of an employee when those acts are within the course and scope of employment. Period. It is as simple as that. The employer need not have been negligent. It is just a matter of who shoulders the risk of a negligent act. If the employer is negligent in hiring an idiot, that is a whole different story and a whole different liability. Whomever employed the DM is liable for the DM's negligence, regardless of how careful the employer may have been.

According to defense counsel, the court agreed that the shop's only liability flowed solely from having employed the DM.

As far as the boat, the law is very simple: If it happened, its the boat's responsibility unless the diver did it to himself intentionally.

Thanks for explaining. These are the intricacies of law with regards to assigning responsibility that I was referring to earlier, about which I am not an expert so I didn't want to wade into it. My opinion about blame is based on who *I* think is mostly at "fault" for the incident - which doesn't necessarily translate to who the LAW dictates is at fault. That's why I initially didn't enter into that debate, confining my stated opinions mostly to how much the diver himself shared in the blame. As a diver, I DO feel qualified to comment on that.

The only fault I can place on the diver is for not having arranged for a proper buddy team. It is one thing to get an insta-buddy on a dive boat. It is a whole different thing to ask a buddy team if you can "tag along."

I can't say I disagree with you on this. However, the buddy team did agree to allow him to join them. So that, in my opinion, means that a large chunk of blame should fall on THEM, for having not followed proper buddy procedures. Hey, they said yes. That meant they should have acted like buddies. But it's a good lesson for us all - join a buddy team, make sure you TALK in advance about what you both expect of each other as buddies. And especially, make sure you discuss lost-buddy procedures.

I've never heard of a dive operation that will allow anyone to descend away from the rigs. Every boat I've been stresses that they want you to swim to a specific leg, then descend and ascend the same leg. Also, if he couldn't find his buddies, he should have surfaced immediately rather than swim around and make a safety stop in open water. Those are the very reasons he surfaced down current from the boat. None of these problems would have occured if he had followed even one procedure correctly. I agree the DM should share most of the guilt, but Dan was responsible for his own errors and has yet to admit to any.

I think we all have to recognize that, given the fact that there was a pending lawsuit, Dan couldn't openly acknowledge any errors...even if he believed he'd made any. I'm sure his lawyer would have vigorously dissuaded him from saying anything that might have hurt his case. I'd love to hear what he has to say now...but I doubt we ever will.

As for descending before he got to the rigs, I do see your point. However, it appears that the entire three-person buddy team did that...and given that he'd asked to join an established team, did he even have the option of altering their dive plan? Did the other two guys decide to descend before they got to the structure? Is Dan at fault for that?

I do appreciate and respect your perspective. There are aspects of this dive I just haven't been able to ascertain based on the available reports, which would help me to form a more educated opinion about this part of it.

In any case, I earlier stated that these discussions (including your comments) have caused me to sway my opinion that the diver held NO responsibility. I now have to say I agree with the jury that he held a small percentage of blame.

 

[MaxBottomtime]

I think we all have to recognize that, given the fact that there was a pending lawsuit, Dan couldn't openly acknowledge any errors...even if he believed he'd made any. I'm sure his lawyer would have vigorously dissuaded him from saying anything that might have hurt his case. I'd love to hear what he has to say now...but I doubt we ever will.

He stated after the debacle that he had no intention of filing any lawsuit. He waited until 364 days later, the last day he could before filing.

 

[MaxBottomtime]

Ken Kurtis posted this on Diver.net;

Caveat up front: I testified at the trial on behalf of Ray and the Sundiver as an expert witness. This is one of the points I covered. Some things to remember:

1. Dan surfaced at 9:09. (There's a dispute as to where but it doesn't matter rightnow.)
2. The roll call was completed and the boat left at 9:30.
3. The current was moving at 1.24mph, or 109fpm.
4. Dan testified he couldn't kick because he was afraid he was going to cramp up so he was carried by the current away from the rig.
5. That means in the 21 minutes he was on the surface, he drifted 2,289 feet from his starting point, or roughly 1/2 mile.
6. The visibility was estimated at 1/4 mile.
7. Had Dan been discovered missing at Eureka at 9:30, Dan would not have been visible to anyone.
9. Based on the timeline from the seasrch actually done at Ace One (the second site), with putting divers in the water, and a search around the site, plus getting permission from USCG to leave the site to start a search, it would have taken roughly another hour, or 10:30 before the boat could leave the rig.
10. By this time, Dan is roughly 1.67 miles away from Eureka.
11. I won't go through the math, but searching in the fog at roughly 2mph (so you don't run him over), if the boat has made a beeline on Dan's course and found this needle-in-a-foggy-haystack, the earliest this could have happened would be ANOTHER two hours, which puts it at 12:30. (If they do a widening zig-zag, it owuld have taken longer.)
12. Dan was picked up by Argus at 1:50.
13. So the best argument you can make if that the DM botching the roll call extended Dan's drift by roughly an hour and a half. However . . .
14. Even if the roll was done properly at Eureka and the search procedures started right away, Dan wouldn't have been found immediately.
15. Dan "owns" the first three hours and 20 minutes of that drift no matter how you cut it.

The notion that if the search for him had started at Eureka t 9:30 means he would have been found faster/immediately simply doesn't have any merit.

 

[Leejnd]

I saw that post too. (I tend to stay off Diver.net - they can be rather rough over there.)

I respect Ken tremendously. And I'm aware that he testified as an expert witness on this case. But I respectfully disagree with his assessment. I believe it's based on speculation.

I try to formulate my opinion based on facts. Fact: the diver was left at sea. The boat left him there and went to another site 10 miles away. Fact: the the DM checked him in the roll call when he wasn't actually onboard. Not once, but twice.

Divers sometimes make mistakes and surface farther from a boat than they'd planned. I've done that. I've twice had to have the chase boat on Peace come fetch me. Embarrassing? You bet! (It certainly inspired me to work harder on my navigation skills.) But if the boat had marked me in on the roll call and left me there...would the fact that I'd made that mistake have reduced their blame for having done that?

In my opinion, no. But that's just my opinion, as a diver who has made my own share of mistakes and hopes that doesn't give a dive boat the right to abandon me at sea.

 

[tracydr]

Bill -- they WERE a jury of "his peers" -- at least I'm quite sure of that. I would be VERY shocked to learn there were any Lords or Ladies, let alone Dukes or Duchesses, on the jury!

They probably weren't Aerospace engineers either, though. Or, scuba divers.

 

[tracydr]

This case received a great deal of attention when it happened in 2004, including quite a bit of discussion here in the A&I forum. I remember the case well, since it happened in my backyard, and I've been wondering what the outcome was. I happened to spot this article in the LA Times this morning, so I thought I should go ahead and post this here for the A&I readers who might remember this case and wonder what ever happened.

Short synopsis: Daniel Carlock was diving at an oil rig off Long Beach, on the Sundiver dive boat. He surfaced without his two buddies due to equalization problems. Buddies continued the dive without him. Dive boat didn't see him, and left - marking him in for the roll call. They proceeded on to the second dive site - and marked him in for THAT roll call too. They didn't discover he was missing until more than 3 hours later, and radio'd the Coast Guard - who then proceeded to search for him at the SECOND site. Daniel drifted for four hours, before being miraculously spotted by a boyscout out on an excursion on a tall-ship sailboat and being rescued.

Here's today's article about the jury award: Engineer wins $1.68 million in scuba diving case - latimes.com

If you want more ScubaBoard background on this case, here are some older threads about it:

Original thread: http://www.scubaboard.com/forums/ac...-diver-incident.html?highlight=daniel+carlock

Update thread: http://www.scubaboard.com/forums/ac...charter-company.html?highlight=daniel+carlock

"Whatever happened to" thread: http://www.scubaboard.com/forums/so...ed-drifting-dan.html?highlight=daniel+carlock

How about his buddies? They just forgot about him?

 

[Thalassamania]

Which raises the question of whether an award amount should be tallied to reasonably recompense an injured party for personal damages, or whether it should be tallied to intimidate a whole industry into altering standard practices (although the point in this is somewhat moot, since standard practices weren't followed effectively). What is the industry going to change when the standard practices already in place, had they actually been followed, would've sufficed? If the DM has checked him present in 2 columns instead of 1 and he'd died anyway, would that've been different? (I'm aware he survived this incident).

That award is well in excess of many peoples' lifetime gross income. I'm talking full time jobs for 30 years. It's hard for me to think 4 hours of the fearful expectation of a miserable death in this case is actually worth that much. A lot, yes. But 1.68 million? Seems crazy to me.

Richard.

PTSD can occur in an instant and can last (and ruin) a lifetime. It's not fake, it's not trivial. I suspect that there's not a one of us here who would not be willing to bob about in the ocean for $400K an hour, if we knew that it was a four hour shift, but if you thought the odds of ever being picked up were slim to none?

Ken's logic is impeccable (as usual), but he is assuming that the only breach of duty were the lousy head counts. I would differ, and respectfully submit that the first breach of duty occurred when the diver surfaced, blew a whistle and waived and was not seen by anyone one the boat. In a heavy current should not a competent lookout have been posted specifically watching downstream? The missed head count just made it worse and made the boat appear even less competent to the jury.

 

[MichaelBNA]

Hi everyone,

I'm a very new diver and reading this makes me very nervous. I have been reading alot of how the blame is partially the guy who got left at sea, and that makes me even more nervous. I really don't see how what he did can be taken into consideration. After all, they left him, they just left him. It would be differnt if they said, "When we noticed he was missing at roll call, we searched for where he should have surface, but unfortinaly we couldnt find him." Then maybe we can talk about his responsibility but unfortunatly, they didn't even look for him. So they can't really say where he was or wasn't when they should have been looking for him. I actually read where someone called him an idiot, and in over his head. I dont get that because, I'm really inexperinced as a diver, and I know I don't want to be left out at sea. I would really hope if something happend to me the people who took me out on my dive would at least try to find me, at least try. I know after hearing some of the stories about people getting left behind, or almost left behind, I know I'm not getting in the ocean without one of those GPS personal locators.

As to who is responsible, if the Captain is the final authority as to what happens on his boat then I guess he is. It seems as though the captain should be able to turn around and hold the DM responsible for scewing up the head count.

As to his damages, 1.6 million sounds like a high amount at first glance, but I don't know how much that really equates to dollars in his pocket. Legal fees, court costs, lost wages for attending court and legal meetings, and I'm sure the legal team incurred expenses, and this went on for 5 years. I truly wonder how much of this actually saw Dan's pocket. That settlement basically equates to $320,000 per year. I don't know what a SoCal engieer makes, nor do I know what a SoCal legal team charges, but that settlement doesn't seem that outrageous.

 

[Doc Harry]

A lot of good discussion here.

I question the judgement award - over a million dollars? For emotional distress? I wonder what this middle-aged man makes in a year. And I wonder if all of his lost income and all of the bills from his shrink would even come close to 1.68 million dollars.

The award seems outrageously excessive to me, especially given his own culpability.

Juries are generally filled with blue-collar and poorly-educated people who seem to have trouble discerning the difference betweem the Power Ball lottery and court awards.

This was one giant fiasco that started on the open sea and continued into the jury deliberation room. One can only hope that a level-headed judge will reduce the award to a more reasonable amount that reflects the true magnitude of the alleged "injuries."

 

[lemon]

he claims this incident led to skin cancer??

"The jury heard testimony that Carlock, who was 45 at the time of the 2004 incident....developed skin cancer from exposure."

what a bunch of crap.

i'm sure he sued to "change the dive industry" and money had nothing to do with it.