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

[Doug Charney]

Interesting question. I'm not sure it's possible to "prove" it, given that Dan is the only person who was floating there, and only he knows whether or not he attempted to swim to the boat.

My understanding, from info I've learned in this thread as well as other sources, is that there were discrepancies on this particular issue. Dan testified that he saw the boat leave. He also testified that he didn't kick at all. Yet, based on Ken's calculations of current and visibility, he HAD to be kicking towards the boat in order to see it leave, given that it left 20 minutes after he surfaced and had he floated without kicking the current would have moved him at least 2000 feet away -- too far away to see it.

So I believe that remains an open question. Ken, can you confirm that? Was there ever any resolution to that issue?

Frankly I can't help but wonder why Dan would say he didn't kick! I believe that's the main reason why the jury attributed any part of the blame to him at all. He would have helped his case, seems to me, had he said he DID kick. Maybe he was simply telling the truth - in spite of the harm to his case? (What a novel concept!)

If it's true it really bothers me....how lazy and entitled do you have to be to just float away and wait for someone to come get you?? He couldn't have been tired, he hadn't done anything yet. A buddy and I got distracted playing with some sea lions at Anacapa once and found ourselves surfacing VERY far from the Spectre. Never once did I think, Huh, I'll just wait here. My friend and I started swimming as hard as we could to get back(after a 45-50 minute dive). It was a struggle but we made it. Maybe if he had tried he would have been spotted because of his movement.

 

[doctormike]

My point was that IMHO the award is out of all proportion to the actual damages suffered by Mr. Carlock, and also out of proportion to the negligent acts of the boat crew. Disproportionate awards, or punishments, are not justice.

Right, and my point was that if we were guaranteed a rescue, of course we would all volunteer to "float around in the ocean" for a while. That wasn't the case. The actual injury that the jury used to make their award was that he didn't know that he would be rescued (see above posts on why mock executions and waterboarding are considered torture, even though they don't kill you).

As to whether it is disproportionate or not, I have no way of knowing, since there isn't some sort of standard for these things. If you feel that it was disproportionate, then in your opinion it was, and I wouldn't think of challenging that - you may be right!

But I'm not sure how we would objectively determine that point. It seems that what we do is let 12 people listen to the whole story, in detail, with all supporting documentation, and then let them come up with a number.

...

A guy is choking in a restaurant, and a doctor comes up and gives him the Heimlich maneuver, saving him. He is very grateful, and want's to pay the doctor something. The doctor says don't worry about it, but the man is insistent, and wants to know what his fee is. The doctor says "Well, just give me half of what you would have given me when you were choking".

 

[merxlin]

If it's true it really bothers me....how lazy and entitled do you have to be to just float away and wait for someone to come get you?? He couldn't have been tired, he hadn't done anything yet. A buddy and I got distracted playing with some sea lions at Anacapa once and found ourselves surfacing VERY far from the Spectre. Never once did I think, Huh, I'll just wait here. My friend and I started swimming as hard as we could to get back(after a 45-50 minute dive). It was a struggle but we made it. Maybe if he had tried he would have been spotted because of his movement.

Details from testimony, including whether he kicked or didn't, are here: testimony recap

 

[Leejnd]

If it's true it really bothers me....how lazy and entitled do you have to be to just float away and wait for someone to come get you?? He couldn't have been tired, he hadn't done anything yet. A buddy and I got distracted playing with some sea lions at Anacapa once and found ourselves surfacing VERY far from the Spectre. Never once did I think, Huh, I'll just wait here. My friend and I started swimming as hard as we could to get back(after a 45-50 minute dive). It was a struggle but we made it. Maybe even if he had tried he would have been spotted because of his movement.

Okay, Doug, there are aspects of this case that it seems you haven't read, that might help explain this to you. Most of this info is in the preceding posts in this thread, but I understand if you are just joining the conversation, you may not want to weed through 360+ posts.

To summarize:

1. This was a "live drop" dive. The boat was not anchored - you can't anchor at the oil rigs (have you ever dived them?). The boat comes in close, drops everyone, you are supposed to swim to the rig, descend and do your dive within the structure, then surface near the rig. The boat will then come back in to pick you up. Divers are told in the briefing that the boat will come get you. That may be why Dan didn't make much of an effort to get to the boat - he believed it would come to him, because that's what he was told in the briefing. (Of course he should have surfaced closer to the rig - but he clearly believed that they would see him and come fetch him.)

When you surfaced far away from Spectre, I'm quite sure Spectre was at anchor. And I don't think they have a chase boat, so it would be unreasonable to expect that they'd pull up anchor, leaving all the other divers, to go get you.

Not the same thing.

2. Dan testified at one point that he had leg cramps (or was afraid of getting them, or something like that - can't remember exactly). In any case, leg cramps factored into his reasons for not kicking to the boat. (Some dispute this, since he didn't bring them up until much later - I'm just pointing out that it was brought up, not verifying the veracity of the claim.)

3. He says that he expected to be spotted because he inflated and waved his safety sausage, and blew his whistle. Clearly he thought he'd be seen. It defies logic that he would do nothing, knowing he wasn't going to be picked up.

It's important to know the aspects about this dive that differ from most SoCal boat dives, before you jump to conclusions.

However, clearly the jury agreed with you, at least in part, that he should have worked harder to get to the boat. That's why they reduced the award from 2 mil to 1.68, attributing that reduction to his portion of the blame.

 

[Doug Charney]

Details from testimony, including whether he kicked or didn't, are here: testimony recap

Thanks, that makes it clear as mud!! As Ken said they all can't be true...I'm sure we'll never know then.

 

[Leejnd]

Right - thanks Merxlin, I should have gone back to look, rather than tried to do it by memory.

TO CRAMP OR NOT TO CRAMP
Dan testifed that he either (1) kicked vigorously, (2) kicked for a minute, or (3) didn't kick at all becuase of possible cramping. At trail his attorney claiming while crross-examing me that what Dan meant was he kicked only hard enough to hold his position (for the 21 minutes before the boat left). They can't all be true. And if he really kicked for 21 minutes at 1.24mph to hold position, couldn't he have kicked just a LITTLE harder and made it back????

SEEING THE BOAT LEAVE
Dan says he say the boat leave. But he initially said he didn't kick. If the latter is true, he would have drifted off into the fog and couldn't see the boat leave. But if he saw the boat leave, then he had to be kicking. Which means he was wrong about not kicking. They can't ALL be true. So which is it?

This also brings into focus the earlier question about whether or not it was "proven" that he tried to swim to the boat. Obviously there are discrepancies in his testimony about this - but after speaking with my lawyer brother (and a couple other attorneys), I'm told that this is not uncommon, especially when one is trying to recall a traumatic experience. I don't necessarily fault Dan for these discrepancies. I don't consider it "lying". Can any of us say that we'd be able to be 100% spot-on in our recollections of this type of traumatic event? How many of you have been on a witness stand? It's not easy to get it all perfect - especially when lawyers ask questions in different ways, for the purpose of tripping you up. In fact, that's a favorite tactic of trial attorneys (according to my brother): trip up the witness, make it look like they are lying, which then calls into question ALL of their testimony.

I try to use logic when I interpret information to come to an opinion. My logic says that it's likely that he did at least some kicking to remain in place. If I were out there, certainly I'd do at least that! And that would explain both the fact that he didn't get himself to the boat, as well as him being able to see it depart.

Obviously that wasn't the smart choice - he should have tried harder to get closer to the boat, not just remain in place. But if he assumed (rightly or wrongly) that the boat was going to see him, then I can see why he might have made that poor choice.

 

[Thalassamania]

As relates to kicking:

KICKING ABILITY/SPEED
The current was moving at 1.24mph. The Mares Volo fins Dan wore were tested by Scubalab (having nothing to do with this case) as being able to go at 2.6mph. That means he could have kicked faster than the current. Even from where I think he came up, he could have kicked back to the rigs before the boat left. If you take him at his word of 400 feet from the rigs and even less from the boat, he certainly could have kicked back.

As I observed earlier: "As to making 2.6 knots over the bottom into a 1.25 knot current, in full gear, for a distance in excess of 1000 feet: Scubalab's protocol (Top Averaged Speed: Using a flutter kick at an average depth of 14 feet, in a pool, test divers took each fin on three speed runs. The highest speed for each run was taken from each diver and then averaged to come up with the top averaged speed for each fin.) is, IMHO, a rather disingenuous way to cast aspersions on what the diver should have been able to do. The circuit swim at Berkeley was 1,200 feet. The best that I ever did it in was 7.5 minutes. That comes out to 160 feet per minute. Back then I was 20 years old, highly motivated, ridiculously confident, solid muscle, and at the top of my form, I doubt if I could duplicate that today, and I doubt if either of us could, in full gear, reach and hold a speed of 2.6 knots over a 1000 foot open water course."

 

[Doug Charney]

Okay, Doug, there are aspects of this case that it seems you haven't read, that might help explain this to you. Most of this info is in the preceding posts in this thread, but I understand if you are just joining the conversation, you may not want to weed through 360+ posts.

To summarize:

1. This was a "live drop" dive. The boat was not anchored - you can't anchor at the oil rigs (have you ever dived them?). The boat comes in close, drops everyone, you are supposed to swim to the rig, descend and do your dive within the structure, then surface near the rig. The boat will then come back in to pick you up. Divers are told in the briefing that the boat will come get you. That may be why Dan didn't make much of an effort to get to the boat - he believed it would come to him, because that's what he was told in the briefing. (Of course he should have surfaced closer to the rig - but he clearly believed that they would see him and come fetch him.)

When you surfaced far away from Spectre, I'm quite sure Spectre was at anchor. And I don't think they have a chase boat, so it would be unreasonable to expect that they'd pull up anchor, leaving all the other divers, to go get you.

Not the same thing.

2. Dan testified at one point that he had leg cramps (or was afraid of getting them, or something like that - can't remember exactly). In any case, leg cramps factored into his reasons for not kicking to the boat. (Some dispute this, since he didn't bring them up until much later - I'm just pointing out that it was brought up, not verifying the veracity of the claim.)

3. He says that he expected to be spotted because he inflated and waved his safety sausage, and blew his whistle. Clearly he thought he'd be seen. It defies logic that he would do nothing, knowing he wasn't going to be picked up.

It's important to know the aspects about this dive that differ from most SoCal boat dives, before you jump to conclusions.

However, clearly the jury agreed with you, at least in part, that he should have worked harder to get to the boat. That's why they reduced the award from 2 mil to 1.68, attributing that reduction to his portion of the blame.

I have read the whole thread, I just don't remember the whole thread.

I have dived the oil rigs, which is why I stated earlier on that it was silly for him to even be there
a) by himself
b) without that much experience

You are correct that diving from the Spectre @ Anacapa and Diving the Rigs are completely different, but the need to surface as close to the boat as possible is the same. I don't recall a lot of the briefing they gave the last time I dived the rigs, but I do recall heavy emphasis on staying within the legs of the rig. He should have known he had already screwed up badly by surfacing away from the rig, so if he didn't even try to get back, that's worse. It's just my opinion, which of course doesn't matter at this point.

 

[Leejnd]

I have read the whole thread, I just don't remember the whole thread.

I have dived the oil rigs, which is why I stated earlier on that it was silly for him to even be there
a) by himself
b) without that much experience

Just wanted to point out - there are differences of opinion about whether his experience qualified him to dive the rigs. While some early in this thread said that he had only a handful of dives, it turns out he had about 70, and was AOW-certifed. Assuming most of those dives were SoCal dives (which is just an assumption - I don't know if that's true), that should be enough experience to do the rigs. I had less than 70 the first time I dived a rig.

As for going by himself, that's not necessarily a problem either, IMO. I've made LOTS of dive-boat trips by myself, and ended up insta-buddying with someone. Not optimum, but not a reason to say it was "silly" for him to be there. Every SoCal dive boat I've been on, the DM has made a point of ensuring everyone had a buddy. Why that didn't happen on this dive is something that's generated quite a bit of discussion: he says he got agreement from two divers to buddy with them; they say they never agreed. That's a he-said-he-said thing at this point - we really don't know which is the truth.

It's just my opinion, which of course doesn't matter at this point.

Yeah - and neither does mine, or really any of us plain ol' divers who are just in here yakking about it!

 

[inventor]

Ok, I've avaoided posting here until now. Lots of people keep posting that the award was egregious. Just wondering, what is the exact monetary amount that should have been given in this situation?