1. Please, please stop referring to a settlement. There was no settlement. It was a jury verdict.
2. A lawsuit cannot ask an industry to change. The outcome of a lawsuit may cause an industry to change its practices. However, no one can seek a judgment that imposes a change on an industry. OTOH, a lawsuit could prompt the Legislature to impose laws on an industry, e.g. prohibiting boat diving further away from shore than one can swim; prohibiting boat diving if there is a current; prohibiting boat diving if there is fog; requiring divers to carry personal locator devices. BTW: an injunction can only be as to a party to the lawsuit and will only be granted when the court can formulate a specific, certain and definite order with which the defendant can comply. Also, an injunction will only be granted to prevent future injury for which no monetary compensation will be adequate. (If an injunction were possible, the courts would long ago have issued injunctions against driving while drunk.)
3. Getting punitive damages is not an easy thing. In California, a plaintiff must prove the defendant is guilty of fraud, malice or oppression and must do so by “clear and convincing” evidence. I’m not going to quote the California definitions for fraud, malice or oppression, but they are rather stiff and include things like “despicable.” To get to malice, you need to intend to cause the harm you caused or get to the point of driving while intoxicated. The trial judge can grant a motion to eliminate punitive damages from a case before the trial or during the trial if he or she finds that the evidence does not even get close to supporting such a finding. See, also point #4
4. I am wondering more and more what the appellate courts will do with this case, which I expect that the defendants will appeal. I was just reading some of the latest cases from the California court of appeal and came upon one of particular interest. FWIW: Two plumbers were working on some new construction. They tried to light the hot water heater. It would not light. They figured there was air in the line and bled it. After bleeding the line, they did not smell gas, so they tried to light it again. It exploded in flames. They sued the gas company. They alleged the odorant that the law requires to be in the gas, wasn’t. The gas company showed that the odorant was there, but explained that new pipe will absorb the odorant until it becomes saturated. So the plumbers changed their theory and argued that the gas company had a duty to warn them that new steel gas pipes adsorb the odorant in the natural gas and had they known of this fact, they would not have bled the gas pipe into a confined area. The jury agreed and awarded each plaintiff in excess of $1 million in compensatory damages. In addition, the jury awarded each plaintiff $5 million in punitive damages.
In the ensuing appeal, the appellate court held that the gas company was not liable at all. It did not address the question of whether the gas company had a duty to warn the plumbers about the pipe absorbing the odorant or whether it breached that duty. Instead, it jumped right to the question of whether the injuries were caused by the alleged breach. The court said it was well and good that the plumbers would not have bled the gas line in a confined area and then tried to light the water heater. But, then it noted that there was no evidence that had the gas company issued warnings, the plumbers would have been aware of it.
By way of example, had the gas company put warnings in its bills to its customers, there was no reason to think any customers would have told the plumbers. Had the gas company put a warning on its web site, there was no reason to think the plumbers would have even looked there. Had the gas company sent letters to every licensed plumber in the state, since the plumbers were not themselves licensed, but rather worked for a licensed plumbing contractor, they would not have gotten the letters and there was no way to know if their employer would have told them. Even if the gas company had put full page ads into trade publications, there is no reason to think the two plumbers would have read those.
The bottom line is that the court concluded that there was no actual proof to support the finding that the plumbers were hurt because of anything the gas company failed to do.
Incidentally, I should mention that the court mentioned that just because something bad happens, it does not mean someone was negligent and that you can’t use a hindsight test in assessing whether there was negligence. In this context, the court relied on some earlier cases in which property owners were sued by people who were injured by the criminal acts of third parties. In these cases, the courts have consistently required that the victims show that increased security by the property owners would have mattered. Thus, when a female delivery person was assaulted while delivering a package and alleged that the property owner was liable because the security gate which provided access to the property was broken, the court held in favor of the property owner because there was no evidence that the assailants were not tenants or guests of tenants and thus would have had access to the property anyway.
Now, turning to Dan. I think it is pretty well undisputed that he surfaced where he should not have surfaced and drifted for like 20 minutes before the roll call that failed to establish he was not aboard. Per Ken’s analysis, which I think is valid, by that point, Dan was out of visual range such that it was not then a matter of just motoring over to him and picking him up. At that point, it would have taken at least an hour or two to find him, if he was findable at all.
I think that if an appellate court is at all put off by the things Dan did wrong or by the size of the award, which is entirely possible, it could rule that Dan’s evidence failed to establish that but for the botched roll call, he would not have been left to drift. And, it is possible that the appellate court could feel that missing Dan on the roll call was not negligent if the evidence established that someone answered when his name was called out. (Remember the bit about hindsight and that just because it happened does not mean it was negligent.) While the court may not say missing Dan was not negligent, its feeling could influence it on how it views the cause of the injury.
OTOH: If the court is put off by the DM having marked Dan as having entered the water on the second dive or thinks that the DM marked Dan aboard after the first dive as part of a cover-up, then it could easily find that the incident was caused by the DM marking Dan aboard on the first roll call.
Just some thoughts.
