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

[doctormike]

Apologies, I had misread the tenor of your post. But I think you are right in that it would be almost inconceivable that a court would make some kind of general order that in future all dive boats must conduct themselves in a certain way. That would very much blur the lines between judicial function and legislative function.

As you say though, what they can do is make a big damages awards, and scare operators into changing their behaviour.

No worries...!

I'm enjoying this conversation and I like learning new things - as you might be able to tell from my profile, I have no particular expertise in the law...

Reading all of these posts, I think of what my father always said: "The devil is in the details".

I know that juries, judges, lawyers and legislators can and do make mistakes on a regular basis (just like the rest of us). However, without having been there, it's hard to know everything that went into a particular decision after a process of discovery, testimony and deliberation that might go on for years.

 

[ReefHound]

Actually, winning a lot of money from one defendant is the only thing that I can imagine that would "make" all dive boats do anything.

But that premise is wrong. A big verdict does not "make" anyone do anything at all. A dive op may change it's policies but it does so not because of the last verdict but because of fear of the next verdict. Put it this way, if the govt were to say tomorrow that no one can file suit if they signed a waiver, would this verdict have any influence on dive op practices? It is the fear of the next lawsuit that drives people. Of course, some people do not worry at all about lawsuits. That's what insurance is for, they figure.

Let's be honest here. Did anyone in the industry learn anything at all from this Drifting Dan verdict that they didn't already know? Before this, was anyone unaware of the potential for big lawsuits as a result of careless actions that led to an accident? This verdict didn't "send a message" that hadn't been broadcast a thousand times before.

 

[merxlin]

But that premise is wrong. A big verdict does not "make" anyone do anything at all. A dive op may change it's policies but it does so not because of the last verdict but because of fear of the next verdict. Put it this way, if the govt were to say tomorrow that no one can file suit if they signed a waiver, would this verdict have any influence on dive op practices? It is the fear of the next lawsuit that drives people. Of course, some people do not worry at all about lawsuits. That's what insurance is for, they figure.

Let's be honest here. Did anyone in the industry learn anything at all from this Drifting Dan verdict that they didn't already know? Before this, was anyone unaware of the potential for big lawsuits as a result of careless actions that led to an accident? This verdict didn't "send a message" that hadn't been broadcast a thousand times before.

I disagree that the industry did not learn anything prior to the verdict. There were changes in the industry, and yes, they were mostly based on the next verdict. One thing I have seen though is that boats are using their own crew/staff as DM's. This is to limit the liability the captain/boat owners have. In this case, the DM's were from a reputable shop who had run these charters before and current to standards and insurance. There was no reason for the captain to question their ability to handle the dive op that day, yet they (captains and owners) are paying the price for their negligence.

What would be an issue is when (and hopefully this is hypothetical) the next diver is missed. A standard has been set, and I doubt the next jury will be any less generous with an award. So the message had been sent before, but now there is a tangible dollar amount attached to it. That is what will get the attention. There is nothing to say that if the defendants hadn't done a good job defending, Dan might not have walked away with not just the $4 mil he was asking for, but also punitive damages. If the next case (again hopefully hypothetically) involves a diver that does everything right, and the same things happen with the roll calls, that award could be much higher.

 

[doctormike]

But that premise is wrong. A big verdict does not "make" anyone do anything at all. A dive op may change it's policies but it does so not because of the last verdict but because of fear of the next verdict.

I'm sorry, I don't understand the semantics that you are using - a dive op would change practices because another dive op was on the hook for a big cash settlement, right? The reason that they fear the next verdict is because of the last verdict. "Make" would be in inappropriate term, since it is ambiguous, but I don't think that anyone here was using it to imply some sort of externally enforceable regulation. I guess "incentivize" might be a better word...

Put it this way, if the govt were to say tomorrow that no one can file suit if they signed a waiver, would this verdict have any influence on dive op practices? It is the fear of the next lawsuit that drives people.

Yes, exactly, that's my point. I'm not sure what you are saying, but I don't think that you are agreeing with me. If the government were to make it so that there would never be cash awards for negligence again, I would absolutely think that Dan's verdict would have much less of an effect on future practices by other dive ops, if any. And since there is no such government regulation, that is why the verdict does have an effect on other dive ops.

Let's be honest here. Did anyone in the industry learn anything at all from this Drifting Dan verdict that they didn't already know? Before this, was anyone unaware of the potential for big lawsuits as a result of careless actions that led to an accident? This verdict didn't "send a message" that hadn't been broadcast a thousand times before.

Well, I don't know, since I don't live in Southern California, where this got a lot of press. Some people here said that it did have an effect on the policies of other dive boats, but if you say that nothing has changed because of the cash award, I couldn't really argue that point...

 

[Leejnd]

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

THANK YOU for explaining this! I've been very curious about that ruling. Now it makes sense - nobody could argue that any of this was done with malice. Contrast this to the McD's coffee case - McD's had clearly demonstrable knowledge that serving coffee at those temps caused injuries. Not just "was likely too", but actually DID - they had multiple reports and claims on this already, and openly stated that they made a choice to continue to serve it at that temp knowing that a certain number of these types of injuries were going to occur. That could easily be argued as "malice".

Anyway, thanks for that whole post - I find this part of the discussion fascinating. Maybe I should have been a lawyer?

But that premise is wrong. A big verdict does not "make" anyone do anything at all. A dive op may change it's policies but it does so not because of the last verdict but because of fear of the next verdict. Put it this way, if the govt were to say tomorrow that no one can file suit if they signed a waiver, would this verdict have any influence on dive op practices? It is the fear of the next lawsuit that drives people. Of course, some people do not worry at all about lawsuits. That's what insurance is for, they figure.

Let's be honest here. Did anyone in the industry learn anything at all from this Drifting Dan verdict that they didn't already know? Before this, was anyone unaware of the potential for big lawsuits as a result of careless actions that led to an accident? This verdict didn't "send a message" that hadn't been broadcast a thousand times before.

I have to agree with Merxlin and Doctor Mike here - yes, this case HAS had an impact, and I believe it will continue to reverberate locally, and throughout the industry.

I do want to say that, given you don't live here, you really don't have the direct experience of those of us who DO live here, to be able to question whether this verdict has had an impact on local dive practices. We can assure you that this case is well-known, and has been widely and frequently discussed in the dive community ever since it happened. I didn't start diving until two years after it happened - and I learned about it on one of my first dive boat trips. I've heard DMs mention it when explaining how they are planning on doing their roll-calls. I've heard boat captains talk about it. I've heard divers sitting in the salon between dives, explaining to new divers why the DM made them come out of the head so he could get a visual on them. I heard a DM once give a couple of young divers a serious dressing-down for talking during roll-call, using the Drifting Dan case to emphasize his point.

And it was the lawsuit they were talking about - not just the fact that a diver was left to drift. It was the lawsuit that amplified the message. Before that, it was just a horrible thing that happened to one guy. After the suit was filed, it got everyone's attention. The high dollar figure will only serve to increase that impact, getting even more people to talk about it - and more dive ops/boats to fear it, and behave accordingly.

Yeah. It's had an impact. Come dive here for a while, and then try telling us it hasn't.

 

[ScubaSteve]

You are admonishing reefhound for offering input yet you are saying the same thing as him (I believe).

And it was the lawsuit they were talking about - not just the fact that a diver was left to drift. It was the lawsuit that amplified the message. Before that, it was just a horrible thing that happened to one guy. After the suit was filed, it got everyone's attention. The high dollar figure will only serve to increase that impact, getting even more people to talk about it - and more dive ops/boats to fear it, and behave accordingly.

Yeah. It's had an impact. Come dive here for a while, and then try telling us it hasn't.

 

[Leejnd]

You are admonishing reefhound for offering input yet you are saying the same thing as him (I believe).

I'm not "admonishing" ReeHound - I'm expressing disagreement with his position. I certainly do not mean to "admonish" anyone for stating their opinion. What I meant to do was simply state an alternative opinion.

What I'm disagreeing with is this statement right here:

But that premise is wrong. A big verdict does not "make" anyone do anything at all.

This comment was made in response to Dr. Mike's comment:

Actually, winning a lot of money from one defendant is the only thing that I can imagine that would "make" all dive boats do anything.

So it seems to me that ReefHound is disputing that the big-money verdict had any impact on dive practices. That's what I'm disagreeing with. (Although I agree that his wording is a bit ambiguous.)

In truth, I'm a bit confused what his point actually was, because he goes on to say:

A dive op may change it's policies but it does so not because of the last verdict but because of fear of the next verdict.

Well, there wouldn't BE a fear of the "next verdict" if the last one hadn't been big, right?

I also disagree with this statement:

Let's be honest here. Did anyone in the industry learn anything at all from this Drifting Dan verdict that they didn't already know? Before this, was anyone unaware of the potential for big lawsuits as a result of careless actions that led to an accident? This verdict didn't "send a message" that hadn't been broadcast a thousand times before.

While we might argue that dive ops *should* have known this, the lax practices reported on some dive boats before this lawsuit would indicate that this was a message that was not being very well adhered to. So I would argue that, even if the message was not new, this lawsuit, and the big verdict, have brought it quite a bit of much-needed attention.

Anyway, I certainly do not mean to "admonish" anyone, and I apologize if it came across that way. This thread has remained pretty civil, and I do not wish to alter that. If I stated my opinion too strongly, I apologize for doing so, and will try to be more careful in future posts.

 

[ReefHound]

I do want to say that, given you don't live here, you really don't have the direct experience of those of us who DO live here, to be able to question whether this verdict has had an impact on local dive practices.

I didn't realize the purpose of the lawsuit was to send a message to and change the practices of the local dive community. I thought it was to change the industry. There is life outside SoCal. Believe it or not.

 

[ReefHound]

So it seems to me that ReefHound is disputing that the big-money verdict had any impact on dive practices. That's what I'm disagreeing with. (Although I agree that his wording is a bit ambiguous.)

Any is a rather too encompassing term. I would say, across the overall industry, it won't have significant impact.

Well, there wouldn't BE a fear of the "next verdict" if the last one hadn't been big, right?

And that is the crux of our disagreement. That is simply false. Almost everyone feared the "next verdict" long before this lawsuit, and the one before it, and the one before it. That is WHY everyone has liability insurance with coverage of at least a million or two dollars per incident. Operators haven't been collecting signed waivers and buying insurance for decades because they were naive about potential liability.

I really find it incredulous that you might think that before this lawsuit, there was any operator in the U.S. who thought that if a customer got left behind due to a careless roll call that they couldn't be facing a mega lawsuit. If anything, this verdict merely confirms what everyone already assumed could happen.

People worry all the time about liability over issues even though those issues may not have splashed all over the news from a courtroom verdict. How many threads have been here (maybe some of you haven't seen all the ones in the Instructor forum) about liability of pros when merely on a boat as a buddy? Yet no one can ever point to a case where an instructor got slammed for that.

Operators take precautions all the time on things that have never resulted in a mega award. And that makes sense, because statistically it is highly unlikely that a given operator would be hit with this particular issue "next time". It will likely be something else, something new. That's the thing with liability. There is no telling what the "next time" will be about. And no matter what you do, there will be 12 peers to tell you that you could have done more.

 

[Ken Kurtis]

By the way, I never once read that he said it's "not about the money". Did you read that somewhere?

He actully said that in some early interviews. He wasn't going to sue anyone, just wanted to make sure this never happened to another diver again.

When I was deposed, his lawyer asked me something about that. The questioning was something like:

LAWYER: Do you agree Mr. Carlock's motives are simply to make the industry better?
KEN: I think the altruism went out the window long ago.
LAWYER: Really? When?
KEN: When you and your client decided this was worth $4 million for your time and trouble.

- Ken