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

[doctormike]

why should the amount of money depend on why he thought that or not? Does he deserve more if he did think he was going to die?

Yes, exactly. That was the point of the award, right? I mean, you and I might not agree on how much he should have gotten for how much mental anguish, but I think that it is pretty clear that in order to successfully sue you need to show damages, and the award you get is proportional to the extent of the damages.

In this case, that was exactly what the damages were - mental anguish (and the skin cancer, which was probably the minor portion of the damages if it was only a basal cell).

If he had been abandoned by the boat when they stopped at a dockside restaurant for lunch during the surface interval, the damages that he would have been able to sue for would be cab fare home, I guess. But in this case, the jury awarded him 1.68 million based on the damages that he proved to them that he suffered during his time in the ocean.

I know that some people feel that "mental anguish" is not a real thing, and that it does not represent damages that need to be compensated for. But the law feels otherwise, and apparently so did the jury.

 

[merxlin]

.........3) He WAS qualified to do this dive (70 dives and AOW most certainly qualifies someone to do a dive on the oil rigs).

Given #3, I think he should not be castigated for having "gotten in over his head" or done a dive that was beyond his skills. The things that went wrong on his dive didn't happen due to lack of experience. He may have made mistakes, but they (IMO) were mistakes that any diver could make - and should not have led to what happened. And no matter what, they do not excuse what happened on the boat.

I disagree that 70 dives and an AOW qualifies any diver to dive the rigs. What if all 70 dives were freshwater, in a quarry, no current, and all shore entries? Individual experience and skills dictate whether or not someone is qualified, not a cert card and history.

I also disagree that "The things that went wrong on his dive didn't happen due to lack of experience". Why did they go wrong then? He made fundamental mistakes that a diver with his training and experience should have avoided.

We should not exclude what he did wrong because of what the DM did wrong. They are two separate issues.

..........I feel the industry NEEDED a shot in the arm to inoculate it from ever doing this again. I tend to think that might be a reason behind the high award - even though they couldn't award punitive damages, that amount is going to have the desired effect, the jury may have been thinking (this is pure speculation, of course).

Then why did they not base the award on what happened in the industry after this event? The boat in question changed it's policy immediately and now only uses boat crew (no chartering employees). They do a face to face roll call. If change was needed, it was accomplished. What would the settlement accomplish?

I wanted to add one more thing: I've had several local divers comment to me (off the boards, in personal discussions) that they firmly believe that the DM marked him on the roster after-the-fact (in other words, when he didn't turn up for the second dive, he quickly went and added him as in from the first, and out for the second). I'm not even sure this was possible, given what Ken reported (that it was sequestered as soon as Dan was reported missing). If that were true, that would raise this to a whole other level of crime that I don't even want to contemplate. I pray that is not what happened - that would be horrific.

Thanks to everyone for this discussion - I feel it was very enlightening.

I believe the statement and testimony of the DM was that someone answered for Dan during the roll call after the initial dive so he was marked as being on board. I believe that he also stated Dan was marked in the water on the second dive when he was not on board.

You can speculate all you want about what the DM did or why he did it to justify your reasoning and opinion, but that is all it will be- speculation. We can only go by what has been provided as evidence.

 

[doctormike]

I also disagree that "The things that went wrong on his dive didn't happen due to lack of experience". Why did they go wrong then? He made fundamental mistakes that a diver with his training and experience should have avoided.

We should not exclude what he did wrong because of what the DM did wrong. They are two separate issues.

Exactly, and while the diver's errors don't change the negligence of the DM, they surely did contribute to the degree of the damages, hence the reduction in the award.

If Dan had executed a perfect dive, and just returned to the boat after the DM had erroneously marked him present, the DM would have been just as wrong, but there would have been no damages, and therefore no lawsuit and no award.

Also, for the sake of the forum discussion, the diver's errors are important to discuss, since they may help one of us to think things through better in a similar situation one day.

Then why did they not base the award on what happened in the industry after this event? The boat in question changed it's policy immediately and now only uses boat crew (no chartering employees). They do a face to face roll call. If change was needed, it was accomplished. What would the settlement accomplish?

It changes the policy on every other boat that hears about the settlement. I don't believe that a jury considers that in making an award, but it certainly is a side benefit...

 

[Zippsy]

I know that some people feel that "mental anguish" is not a real thing, and that it does not represent damages that need to be compensated for. But the law feels otherwise, and apparently so did the jury.

I actually do believe in mental anguish and that he should be compensated for it. It's the amount that just staggers me.

A friend was on a jury once where a woman sued a store for wrongful imprisonment and asked for $4 million because her hand now shook a lot and she was afraid to go into stores. Most people seemed to think that it was a nuisance suit that just never got settled but the majority on the jury convinced the few that her damages were real and they found for the plaintiff. There was considerable argument over the award with 12 pretty different views ranging from $1,000 (rough medical bills to date) to $4 million (because that was what she asked for). They could reach a desicion so the foreman convinced everyone to just take an average of everyone's choice. They ended up awarding about $2.25 million and it made the entire courtroom, including judge and plaintiff gasp when it was announced. It was so shocking, it made front page news in Baltimore. According to my friend, the reasoning she thought it spiralled out of control was that the defense lawyer apparently never tried to say something like "IF you do think this wacko really deserves any money, here's how you can determine a reasonable amount... which should be about $1-2,000". BTW, this case was later appealed and settled for a much lower amount.

 

[Leejnd]

Not to put you on the spot, but I really WOULD like to hear your thought process on this point.

I'm a little reluctant to enter into that discussion, only because some people in here have a tendency to go a leeeetle bit overboard in their hostilities when you say anything that disagrees with them. I've tried very hard to be respectful in this thread (not always completely successfully, I admit - my sarcastic nature occasionally surfaces), but I do at least always try to address the issues, not attack the person. Not everyone in here does that. And I'm not referring you at all, Ken - I have nothing but the utmost respect for you. You are the poster boy for presenting your opinions in a non-offensive way.

Also, I've learned, much to my dismay, that my posting of my personal opinions, which are clearly not 100% on the side of the defendants in this case, have put some of my friends in the industry in a bad position - they've been attacked for MY posts. Which is why I felt I had to post earlier that my opinions are MINE ALONE and do not reflect the opinions of anyone else that I might know or be involved with in the industry.

But I understand your interest in hearing alternative viewpoints, and I will try to write them up. Unfortunately it's going to have to be later today - I've spent way too much time on SB for the past couple of days, and not enough time working, and I have some projects I need to complete.

I do want to make a few points, which are not in answer to your question, but I feel need to be said:

1. I get a little tired of the attacks on Dan. Yes, he made some mistakes, but I don't think any of that justifies calling him an idiot, or any of the other insults I've seen in here. Perhaps I'm saying this because I have made many of my own mistakes. I've surfaced further from the boat than I intended. I've had problems equalizing (and not just early in the dive - even at depth). I've lost my buddies. I've done some pretty stupid things, and while I'm fortunate that none of them have resulted in anything more than embarrassment (like when we had to be picked up by the chase boat on Peace), I know all too well that it is too easy to execute an imperfect dive. NONE of his mistakes deserve the attacks on him that I've seen in here. I don't know him, never met him - I'm just saying this as an imperfect diver myself.

2. I DO, strongly, believe that his floating at sea was a horrific, traumatic experience, worthy of compensation. I do not intend to discuss that part of this topic any further. And clearly, the jury agreed with me. As someone who has had a couple of horrific, traumatic experiences myself, I know all too well how these types of experiences can affect you for the rest of your life. I would really love to see an end to all the snide remarks about that. (Not that I expect that to happen.)

3. Dan did not choose the amount that he was awarded. The jury did. We can certainly discuss our opinions of their decision, but all Dan did was choose to sue (a decision I personally agree with), and state his case. To attack HIM for the jury's decision is unfair. To suggest that he might have actually done this ON PURPOSE, or would have chosen to do this for the money, is absurd. IMO.

4. I do not actually believe that the DM marked him on the roster on purpose. Others do, and have told me so. I was simply saying that, my God I HOPE that's not true, because that would raise this to a level of crime that I would find unimaginable!

5. Many questions that people are asking me, are being adequately answered by others. So I will let those answers stand and try not to repeat them.

6. I agree that this is an important discussion. I hope that we can keep it respectful. I will certainly do my best. I stated earlier, and will say again: it's okay to disagree with each other. There is no reason for hostility or anger just because we hold differing opinions. My husband and I disagree vehemently on some pretty important things. We still are able to sleep in the same bed every night.

Shoot, now I gotta go do some work....

 

[theduckguru]

Generally, California dive boats do not have DMs in the water unless requested and paid for. The DMs stay on board.

I thought they were supposed to select "juries of their peers?" The jury should be composed of people who actually know something about diving and dive operations IMHO. Yes, I now that's not what the phrase meant but to have 12 people who may know nothing about the topic award large sums like this is a miscarriage. I'm not absolving the dive shop or boat of any liability.

True, but it is a burden on the courts to find a group a people who actually know something about diving that:

A. Can't count to 20.
B. Can't complete a checklist of the divers on board.
C. Don't believe it is gross negligence to to leave a dive site before making certain everyone is on board. [twice]

The ruling was proper IHMO.

 

[Doug Charney]

How much did Dan originally ask for? It may be here somewhere but I must have missed it.

 

[boulderjohn]

Originally Posted by ItsBruce View Post
Earlier in the thread, someone had commented something to the effect that the ink on the check mark for Dan returning from the first dive was not as dry as the check marks for the other divers.

I don't know who made that comment but it's wrong.

I've seen the actual slate used. The marks are in pencil, not pen. No ink.

Also the slate in question was sequestered by Ray when Dan was reported missing and then locked in the lawayer's office until recently. Not sure how anyone could be doing a test/observation of this nature on the slate.

I think the original post to which ItsBruce alludes was speaking metaphorically. Starting that the ink was not as dry was a wry way of saying that he suspected the marks had been added later; it was not intended to be a statement of literal fact.

My thoughts from the start on what happened there are similar to ItsBruce's conjecture, although my supposed scenario is not as overtly criminal.

I envision a situation in which the DM is marking the slate for the second dive and notices that he had not marked Dan in for the first dive. He is quite sure that everyone had answered the roll call after the first dive, so he must have forgotten to check him off. He also notes that Dan is not on the deck, so he must have entered the water, then, too. In that scenario the DM covers up for his failure to make a couple of check marks rather than his failure to note a missing diver. He does not realize the actual situation until Dan fails to come up from the second dive.

Note that I am not excusing the DM--it just seems a plausible way of explaining his actions.

 

[Ken Kurtis]

How much did Dan originally ask for?

$4 million.

- Ken

 

[idocsteve]

$4 million.

- Ken

That greedy bastard!