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

[ItsBruce]

Ken is right about emergency versus inconvenience. Thanks for pointing that out. I was not particularly articulate in what I said. What I meant was: When I lose my buddy, I'm not having an emergency like I would if I found myself out of air. When I lose my buddy, I lose my redundant air and extra hands that might otherwise be able to help me, and that represents an inconvenience to me and requires me to adjust. But, I don't need to do a CESA. At the same time, my buddy may be having an emergency and it is incumbent on me, within the scope of my training, and without putting myself in unreasonable danger, to check for and assist my buddy.

 

[ItsBruce]

I never assume a release or waiver will or won't be effective. I will always assume that a court will do whatever is most injurious to my interests. Subject to this, in California, it is possible to waive claims for basic negligence and absent some mistake like labeling the waiver something it is not, it is likely to be upheld by a court.

Apart from waivers, despite their reputation for being "pro-victim," California courts are pretty aggressive about applying the doctrine of primary assumption of the risk. In a nutshell, it says that if you are injured as the result of a risk inherent in the particular activity, your out of luck.

Being hit while playing touch football is a risk inherent in the game and players can't be liable unless they intentionally tackle another player.

The California Supreme Court has held that in golf, “being struck by a carelessly hit ball is an inherent risk of the sport.” However, it also held that in the case before it, there was a question whether the defendant’s conduct was “so reckless as to be totally outside the range of the ordinary activity involved in [golf]."

Getting hit by the swinging boom of a sailboat is a risk inherent in sailing a boat for which the skipper or owner cannot ordinarily be liable.

While snow skiing, colliding with another skier is an inherent risk of the sport and there is no liability unless there is reckless or intentional conduct. However, while racing down an advanced run is part of the thrill of snowboarding, intentionally speeding into a flat area at the base of an advanced run where people have stopped to rest, when one is unfamiliar with the area, without looking where one is going is not necessarily an integral and unavoidable part of the sport.

I do not recall any California cases dealing with primary assumption of the risk and scuba diving. However, I would hazard to guess that taking an "undeserved" hit is an inherent risk, as is getting tangled in kelp, or stung by a jellyfish or getting poked by an urchin. So, too, is OOA. I would also hazard to guess that getting "bad" air in a fill is not an inherent risk of the sport. Nor is getting left behind. Nor even getting defective equipment. I'm not sure about getting a "short" fill, especially because it is generally so easy to ascertain and address. (It might trigger any number of other doctrines.)

BTW: I would not have suggested the caveat if I was positive that a waiver would not be upheld in a left at sea scenario.

 

[ChrisM]

What he said, although Madison is the most well known scuba related release case. Just rtecently, court held that Cataline Scuba Luv's release was ineffective to release claims of wrongful death or negligence because a caption released claims for rental of equipment for "boat dives and multiple day dives." the decedent only rented for one day, which the release didn't technically cover. Not Ass. of the Risk, but still instructive...

Unfortunately, as a young associate was assigned to a snow skiing case with bad facts, as we call them. As a result, my name appears on one of the cases in the AOR jurisprudence. I do not include that one on my resume.

Anyone that says a waiver will protect you, or that a waiver isn't worth the paper it's written on, doesn't know what they are talking about. A well written waiver, in the right fact pattern, before the right jury, MAY protect you. But it also may not. It really all depends. On what? Wish I could say. Might as well say what the judge had for breakfast. Of course, you still get sued and have to pay the money to test the waiver.

In general, Calif. courts will not allow you to waive anything other than simple negligence. Gross negligence, reckless, and intentional conduct cannot be waived. Problem is what is simple, and what is gross? There isn't a real clear standard. If you can give me a good definition of gross vs. simple negligence that I can rely on in court, I'd be obliged. Likely the court will have a hard time with that distinction, and would probably let the question go to a jury.

I think a lot of waivers specifically cover faulty equipment as well

 

[SoCalRich]

I've been on this boat many many times with the past & present operators. And intend to dive many times in the future. The dive shop the diver singed with is the one responseable.
Now every diver must acknollage thems selves with a verbal reply & an eye to eye contact with the person taking roll call.

 

[lemon]

Easy solution - leave all of the lawyers out at sea. Just kidding of course, but a man can dream...

 

[bowlofpetunias]

Easy solution - leave all of the lawyers out at sea. Just kidding of course, but a man can dream...

You can ship yours out to sea if you like.. I have a few I would like to keep I wonder if it was professional courtesy that kept me safe from the sharks when I dived with Bruce and Lucky at Catalina

Thanks for some very interesting and informative posts everyone!

 

[DeprecatedMustang]

I like how many are so willing to ignore the fact that they signed him in TWICE when he was NOT there either time.

Most of the other comments in here are speculation, irrelevant, or ridiculous (e.g. solo divers on cattle boats are asking for it - loved that one). Bottom line, whoever signed him in twice when he wasn't there either time was negligent.

You can go on about whether he should have kicked or whether he would have been found sooner in the fog.. this doesn't change the fact that they didn't recognize he was lost until much later. The napkin math of the "expert witness" on how even if they had found him earlier he would have drifted along time is rubbish and misses important points 1) Drift models of bodies in currents are pretty well understood and the local SAR if competent would have accounted for this in their search pattern, 2) the freighter that picked him up was pure happenstance and 3) based on what I've learned of this, the dive boat incorrectly identified him as missing at the second site which started the search 7+ miles away. Figuring out who is on the boat isn't rocket science. Any charter operator worth their license knows you don't leave the site until everyone is properly accounted for.

Ironically, negligence from Latin means literally to "not pick up something". Negligence is conduct that falls below the bar of what a reasonable person would do to protect someone else from foreseeable risks.

Not picking someone up because you marked them down twice incorrectly is pretty darn foreseeable and really has little to do with diving specifically. This thing has happened before and will continue to happen so I'm glad this operator got sued into oblivion because ultimately money talks and is the only way to make people take this matter seriously and enforce more effective means to mitigate it.

On a practical level, this just speaks to the benefit of carrying a vhf marine + plb in a can when diving far offshore.

 

[Doc Harry]

Make friends with another group on the cattle boat. Agree to cover each other's six o'clock, and make sure that the other group is back aboard after each dive. Don't depend on the dive master alone.

 

[bowlofpetunias]

Should this have happened? Nope! Did a lot of stuff ups together cause the problem...Yup. Is any one person totally responsible IMHO Nope! Should ANYONE wear this forever IMHO Nope!

What I am taking away from this is the continuation of "You are responsible for your own safety" There have been some great suggestions for us as divers to protect ourselves from even a flawed role call!

We normally dive in a large enough group that we would be missed. If we separated from them as a buddy pair our other friends would still miss us. I also make a point of putting a few things in my hat... glasses and things that make it awkward. I ask the captain... Is it OK if I put this here? I then put it somewhere that ideally will be in the captain's line of vision or where it will have to be moved for the boat to be driven. With glasses in it.. people don't tend to just shove it somewhere and forget about it! I don't REALLY need the prescription glasses but if someone sees prescription glasses laying about it tends to register someone should be wearing them!

 

[iztok]

I also make a point of putting a few things in my hat... glasses and things that make it awkward.

I sometimes wear a thin colorful hoodie from ScubaDo Rags. ScubaGoodHood

It is yellow/orange/green camo pattern that tends to register with people. It looks funny but people do remember that there was a silly person on board