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

[bowlofpetunias]

They do this on our "club dives" check divers into the water.. out of the water record air pressure left and ask if you have any pain, numbness or other symptoms of DCI. They also ask you who you dived with and if they are out of the water.

 

[Leejnd]

The award is too high. Dan did not die. We can argue about skin cancer, PTSD, etc., etc.

What if Dan had died?

There are a whole lot of "Woulda, Coulda, Shoulda's" regarding Dan's actions, the DM, and the captain.

My feeling is still this: Despite Dan's failings as a diver on that dive, and despite what seems like a very high award, the boat should not have moved without accounting for all embarked passengers.

I understand the captain was "screwed" by DM. So be it. He was captian, that is what happens to captains, and he was ultimately responsible for all passengers and crew on his vessel. I understand he surrendered his license. Had he not surrendered it, it should have been pulled by the Coast Guard. I say this as an ex-Merchant Marine Deck Officer. It was his boat, and he should have made sure the DM was doing his job correctly.

The DM should for sure have his certification pulled, and should face additional punitive penalties. The DM was grossly negligent.

Any school child can tell you the proper way to conduct a roll call, it is verbal and visual! You put a face with the name, always. To have screwed this up twice goes beyond carelessness.

It is really sad for both the captain and DM, because I'm sure they are great people; but they assumed a level of responsibilty that can't be erased by any of Dan's mistakes.

I wanted to echo this post - this is pretty much exactly how I feel about this case, and have from the beginning. Dan Carlock has been trashed three ways from Sunday since this incident first became public. And yet, when you pin people down, they all have to agree that regardless of anything Dan did, the crew's mistake is inexcusable.

I personally agree with the above statement that the DM should have faced additional punitive penalties. I would love to know the jury's reasoning behind not awarding any punitive damages, as based on what I know of the case, I would have thought punitive would exceed the compensatory. But then, I'm sure lots of us would like to get inside that jury's head, for any number of their decisions!

You can all make light of what Dan went through, and say that if it was you, you would think it was no big deal and would just happily kick your way home. None of us really know what he went through. As a boat owner, I've had it drummed into me just how difficult it really is to find someone floating alone at sea, especially in foggy conditions. We can speculate all we want that it was inevitable that he'd be found, but that's all it is - speculation. Given that the survivability limit for floating in that temperature water is about 36 hours tops, that's a pretty short timeframe to achieve something that difficult, and a bad outcome if luck is not on your side. And let's not forget that not only was it foggy, but nighttime was approaching, reducing even further the number of hours they actually had to find him. Clearly he made a strong enough case to the jury that his experience was bad enough for them to have awarded him that much money. That says something right there. All of the posters in here saying they wouldn't sue if it was them - that's easy to say from the warmth and comfort of your chair, having not experienced it yourself. My personal opinion is that there are few people who WOULDN'T have taken some kind of legal action if this happened to them.

I realize that this award is not good for the scuba industry. But as ItsBruce explained, this is the only option that was available to Dan. He publicly stated that his primary reason for pursuing this action was to ensure that practices on boats change so that nobody ever has to go through this again. While some might argue that this didn't change practices (the crew simply didn't follow already-established practices), I don't think anyone can argue that this hasn't, at the very least, raised awareness that these practices must be RIGIDLY adhered to. The consequences for sloppiness in roll-calls is just too high.

I started diving after this incident occurred, but I heard about it almost immediately. Since then I've paid close attention to how every boat I've ever been on conducted their roll-calls. It certainly raised MY awareness, and I'm sure it has for many other divers as well. That IS a good thing.

 

[merxlin]

Two points- You are right, everyone has said the DM screwed up. No question. At issue was the amount of the award, and if the captain in this case should have faced the brunt of the settlement.

But regarding this:

..............And let's not forget that not only was it foggy, but nighttime was approaching, reducing even further the number of hours they actually had to find him. Clearly he made a strong enough case to the jury that his experience was bad enough for them to have awarded him that much money. That says something right there...............

It was mid-day when he was found, and the visibility had opened up. So although it was not the best of conditions, let's not over-dramatize it either. I get what you are saying about his experience. Yes, it was a horrible experience for him. But he did also do things that contributed to that situation (but did not cause the situation).

And as far as the settlement, we can no longer equate a fair and reasonable amount when it comes to jury awards. I only have to remind you of the McDonalds hot coffee suit to show that is not the case. Jury's have a tendency to feel sorry for people, and award what they think people can afford, not what is right. If the dive shop and boat had $2 million in insurance for example (I have no idea how much insurance they have- this is for example only), it's not surprising to see this award.

I also did not see anything in the suit asking for an industry standard for checking divers in and out of the water. If that was his intention, why did that not make it into his suit (or a secondary suit if it could not be added). Where is his activism to get things changed?

 

[boulderjohn]

And yet, when you pin people down, they all have to agree that regardless of anything Dan did, the crew's mistake is inexcusable.

I was diving in Australia a few years after the famous Lonergan case, and I heard more than one analysis of the case. In a desperate attempt to absolve themselves of blame, the diver operator concocted an absurd claim that this couple had committed suicide. They had apparently decided before their marriage that joint suicide was the right option for them, and the best way to do it was to get married, spend a small fortune on an Australian honeymoon, book a dive trip, and drift around in the open water until they died. (That's a plan you would likely come up with if you thought it through, right?)

As absurd as this claim was, a lot of people believed it, and you will still find people who believe it still.

But as absurd as it is, let's pretend it were true. Let's pretend we can assign the ultimate blame to the diver--an intentional effort to avoid detection and die at sea. Does that mean it is OK for the dive operator to do what happened in the Lonergan case: not know they are gone, return to port and see their gear is still on the boat, and then wait three days before reporting that they had lost them?

The same is true here. Poor behavior by a diver cannot excuse poor behavior by the operator.

 

[doctormike]

And as far as the settlement, we can no longer equate a fair and reasonable amount when it comes to jury awards. I only have to remind you of the McDonalds hot coffee suit to show that is not the case.

You may be right that not every jury is fair, but please stop using that case as an example of a frivolous lawsuit. I think that if you knew the facts, you might agree that McDonalds got off easy...

 

[merxlin]

You may be right that not every jury is fair, but please stop using that case as an example of a frivolous lawsuit. I think that if you knew the facts, you might agree that McDonalds got off easy...

You are correct, I should have been less specific. There are plenty of other examples.

 

[Leejnd]

You may be right that not every jury is fair, but please stop using that case as an example of a frivolous lawsuit. I think that if you knew the facts, you might agree that McDonalds got off easy...

LOL you beat me to this! I was gonna post this too.

Two points- You are right, everyone has said the DM screwed up. No question. At issue was the amount of the award, and if the captain in this case should have faced the brunt of the settlement.

I know that the impact, and application of blame, on the captain has been of particular concern to you. I completely understand. Of everyone involved, I believe he got the biggest raw deal. None of this was his "fault" - there is nothing he did that contributed to it, nor was there anything he could have done to prevent it. Unfortunately, as others have pointed out, in terms of legal responsibility and liability the buck stops with the captain. That's just the way it works. I feel nothing but empathy for him. I understand that due to this case, local dive boats will no longer take DMs that are provided by the charter. This at least gives the control of the quality of the DM back to the boat (although it also cements who is ultimately responsible - the captain).

It was mid-day when he was found, and the visibility had opened up. So although it was not the best of conditions, let's not over-dramatize it either. I get what you are saying about his experience. Yes, it was a horrible experience for him. But he did also do things that contributed to that situation (but did not cause the situation).

When I said that nighttime was approaching, I wasn't trying to suggest that it was going to be soon, only that it was inexorably coming, thereby limiting the number of hours left to find him. Once the sun set, that would significantly reduce the likelihood that he'd be found alive. That's just indisputable. The march of hours were inevitable. And yes, the fog did clear, but not until not too long before he was rescued. As I read it, it was foggy for most of the time he was floating. I'm not trying to "over-dramatize". But do believe that there are many in here who have severely UNDER-dramatized it, writing about it as if it wasn't much more than an annoyance. That's simply not true. It was a gravely dangerous situation, with a high possibility of fatality.

And as far as the settlement, we can no longer equate a fair and reasonable amount when it comes to jury awards. I only have to remind you of the McDonalds hot coffee suit to show that is not the case. Jury's have a tendency to feel sorry for people, and award what they think people can afford, not what is right. If the dive shop and boat had $2 million in insurance for example (I have no idea how much insurance they have- this is for example only), it's not surprising to see this award.

I agree that there have been some unreasonably high jury awards. There have been MANY boneheaded jury decisions. (Just look at OJ!) Juries are notoriously fickle, and it's always a crapshoot. My brother, who is an employment attorney, just watched his practice almost go under due to a jury that found in favor of the defendant, much to the surprise of everyone involved, including the judge and the defendant's own attorney! Nobody really expected the jury to find this way, which is why they didn't settle this open-and-shut (on the face of it, at least) case years ago.

But this is our nation's legal system, and I still believe it's the best in the world. It's not perfect, but it's way better than any other out there.

I also did not see anything in the suit asking for an industry standard for checking divers in and out of the water. If that was his intention, why did that not make it into his suit (or a secondary suit if it could not be added). Where is his activism to get things changed?

I based that on interviews I've read, in which it's reported that Dan stated that the primary reason he pursued this case was to ensure this never happens to anyone again. Once he decided to sue, I'm sure it he left it up to his attorney to choose the course of action that would most likely lead to a win. And apparently he did! I'm not claiming to know Dan's motivation - I'm only repeating what I've read he SAID was his primary motivation. As for any activism on his part - given what he's gone through, perhaps he feels he's done enough? I don't know - it's not my place to say what he should or shouldn't do. He's got his own private life to think about - a job, family, a life. But I don't think anyone can deny that this case has had an impact. Maybe that's good enough for him.

Poor behavior by a diver cannot excuse poor behavior by the operator.

Exactly.

 

[Zippsy]

Remind me again. How much did Dan sue for? Did he ask for $10,000 and the jury just thought that was not enough? Also, now that the industry has learned its lesson, since its not about the money, will he donate the money to some charity or something?

BTW, I thought it was the judge that decided there could be no punitive award. I could have misread that though.

 

[Leejnd]

Remind me again. How much did Dan sue for? Did he ask for $10,000 and the jury just thought that was not enough? Also, now that the industry has learned its lesson, since its not about the money, will he donate the money to some charity or something?

BTW, I thought it was the judge that decided there could be no punitive award. I could have misread that though.

Oops, you're right - it WAS the judge. Forgot about that...thanks for clearing that up. So, to state it correctly - I would love to get inside that JUDGE'S head to understand that ruling!

Dan asked for 4 mil. The jury, however, decided what the case was ultimately worth, not Dan. As for what Dan does with the money - that's not really any of our business, is it? The jury gave it all to him as compensatory - meaning that they felt it was compensation for what he suffered, and every penny of it was due to him PERSONALLY for the damage that was inflicted. What he does with it (if he ever even sees a penny of it) is up to him. Remember that a large chunk of it would go to legal fees anyway.

By the way, I never once read that he said it's "not about the money". Did you read that somewhere? That wouldn't even make sense, given that money was the only means of legal recourse. He wasn't trying to have anyone sentenced to jail, or whipped with a cane! He was suing for money. If that action was motivated by a desire to send a message to the scuba industry, well methinks he succeeded. Just look at this thread!

 

[ChrisM]

Can someone tell me how Dan's acts "excused" the acts of the DM? Cuz the results don't bear that out. An excuse means that Dan's acts superceded the DM's acts and the DM pays nothing (I am including all defendants by "DM")

On the other hand, did Dan's acts potentially increase his damages? The jury obviously thought the evidence showed that. And it reduced his award based upon that percentage. But it didn't excuse the DM, and I am sure the insurance company's won't feel "excused" signing the 1.68 M check (assuming it or a portion of it gets paid).

There is something called contributory (or comparative, more precisely) negligence in this country. Negligence of each defendant is weighed against the negligence of all of the other defendants, and the plaintiff. Isn't that the most fair?