Family sues resort over son who died diving in The Crater

[Thalassamania]

This is the law that was passed in 2009.
I find nothing about lifegards in it, it is more about sanitation of pools. I guess a good attorney could spin the language about skimmers and pumps to mean visibility.
That is why I asked if you had found it.

We shall see what the judge says.

The guys holding up OK?

That law exempts geothermal pools from some requirements, but not from:

R392-302-30. Supervision of Bathers.

(1) Access to the pool must be prohibited when the facility is not open for use.
(2) Lifeguard service must be provided at a public pool if direct fees are charged or public funds support the operation of the pool. If a public pool is normally exempt from the requirement to provide lifeguard services, but is used for some purpose that would require lifeguard services, then lifeguard services are required during the period of that use. For other pools, lifeguard service must be provided, or signs must be clearly posted indicating that lifeguard service is not provided.
(3) A lifeguard must meet each of the following:
(a) Be trained and certified by the American Red Cross, Ellis and Associates, or an equivalent program as approved by the department in Standard Level First Aid, C.P.R. for professional rescuers, and Life Guarding.
(b) Be on duty at all times when the pool is open to use by bathers, except as provided in Subsection R392-302-30(2).
(c) Have full authority to enforce all rules of safety and sanitation.
(4) A lifeguard may not have any other duties to perform other than the supervision and safety of bathers while he or she is assigned lifeguarding duties.
(5) Where lifeguard service is required, the number of lifeguards must be sufficient to allow for continuous supervision of all bathers, and surveillance over total pool floor areas.
(6) Lifeguards must be relieved in the rotation of lifeguarding responsibilities at least every 30 minutes with a work break of at least 10 minutes every hour.
(7) The facility operator and staff are responsible for the enforcement of the following personal hygiene and behavior rules:
(a) A bather using the facility must take a cleansing shower before entering the pool enclosure. A bather leaving the pool to use the toilet must take a second cleansing shower before returning to the pool enclosure.
(b) The operator and lifeguards shall exclude any person having a communicable disease transmissible by water from using the pool. A person having any exposed sub-epidermal tissue, including open blisters, cuts, or other lesions may not use a public pool. A person who has or has had diarrhea within the last two weeks caused by an unknown source or from any communicable or fecal-borne disease may not enter any public pool.
(c) Any child under three years old, any child not toilet trained, and anyone who lacks control of defecation shall wear a water resistant swim diaper and waterproof swimwear. Swim diapers and waterproof swimwear shall have waist and leg openings fitted such that they are in contact with the waist or leg around the entire circumference.
(d) Running, boisterous play, or rough play, except supervised water sports, are prohibited.
(e) Easily readable placards embodying the above rules of personal hygiene and behavior must be conspicuously posted in the pool enclosure and in the dressing rooms and offices.
(f) The lifeguards and operator shall only allow diaper changing in restrooms or changing stations not at poolside. The person or persons who change the diaper must wash their hands thoroughly with soap before returning to the pool. The diapered person must undergo a cleansing shower before returning to the pool.

 

[ScubaSarus]

Wow

That really clears the air Thal

Thanks for finding that and posting it.

Its a shame when rescuers get sued after doing their best to help a victim. I can see if they did something against standard medical practices but not if they have done their best.

 

[2 Big 2 Fail]

The story implies the instructors were employees, and since the resort offers instruction, that seems likely. They are not being sued for their attempted rescue, so it has nothing to do with other people attempting rescues. They just happen to be the agents of the resort who were there at the time, and it's going to be claimed that the resort, through its agents, didn't act according to some duty. Had there been some sort of Crater Manager right there when it happened, the suit would have named him instead. Most likely, they didn't know the names of others, like the person who works the gate or fee paying counter, but they did know the instructors from the police report. Employees who are working within the scope of their employment are normally indemnified by the employer and are not personally liable. It's not fun, but they are not at risk.

I've been sued for $1 million, along with my supervisors and agency. I was never at any personal risk. Their insurer settled for a flat $25,000, which was far less than they would have spent to defend us. (You don't recover your defensive costs from non-wealthy individual plaintiffs.) It grated, because it was an entirely bogus suit by filed by someone who knew better and sacrificed his goodwill with his associates to do it, and it was filed under the wrong statute to begin with. But the insurer wanted to be done with it, so it was done.

 

[Thalassamania]

At the start you sue everyone who is there. You roll anyone that you can over on top of the primary deep pocket (usually the operator) and then you drop the other also-rans. That's the usual approach.

 

[friscuba]

Wouldn't his own responsibilities come somewhat into play?

If he was looking at the competition in Kona, it wouldn't surprise me if he's a serious freediver and a member of a freediving association. I'm not sure how he'd ge an invite to that type of competition without some kind of affiliation. I suspect most have their own practice guidelines in place United States Apnea Association (USAA) If he was not diving with a buddy or a support team, he likely wasn't following recommended protocol. Seems to me it was likely he knew better than to practice alone.

 

[goonsquad]

IANAL, but > 75K may be mentioned because it brings into play federal jurisdiction if the defendants are citizens of more than one state, or one state and another country, etc...

it is likely they're asking for much more than that... [ <-- added for clarity ]


United States Code: Title 28,1332. Diversity of citizenship; amount in controversy; costs | LII / Legal Information Institute

I've been there a few times, I've never seen the vis be bad. You can see 20-30ft regularly.

 

[Cave Diver]

Wouldn't his own responsibilities come somewhat into play?

Not anymore. Now it's about who has the deepest pockets that a finger can be pointed at. People used to be publicly ridiculed for doing stupid things. Now everything is PC and they get paid instead.

 

[2 Big 2 Fail]

Wouldn't his own responsibilities come somewhat into play?

Yes. In this sort of case, a jury would be charged with apportioning fault. A percent to each party. I would be amazed if it came to that in this case. It's just not enough money for an insurer to spend money fighting about. Some specialty insurers sometimes start fighting even smaller claims when the number of them are getting out of hand, just to show that they're not a money machine for every bogus claim. But the reality is that they know that, even if they win, they still spend a bunch of money to win, more than any likely judgment that might be had against them, and the average Joe Plaintiff can't pay any legal costs they're awarded if they win.

 

[Emparo821]

my comment assumes that the news article is accurate in what happened, but that is hogwash....a lifeguard is basically useless if your freediving! he was responsible for himself and should have had someone working with him or swimming with him specifically!

 

[JonKranhouse]

BTW Folks (Clanggedin and 2 Big 2 Fail) should not be posting the articles in their entirety as that is considered redistribution. And I know the Tribune has had a fair amount of proactive education this practice lately. Besides this notice should be sufficient:

Copyright 2011 The Salt Lake Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

I think it is best to provide a link, the title, and most the intro paragraph.

Actually, US copyright law allows quite broad republication - without permission - of copyrighted material under the "Fair-Use" doctrine of Title 17 of the US Code, specifically in instances of education, criticism and news.

A claim of copyright infringement that Scared_Silly fears would likely fail against the defense provided by the Fair Use doctrine if this question was ever to be litigated, in my opinion; not just because of a vacuum of accurate information, but further because of the confusing veil of misleading information promulgated by the dive industry itself, which only the broader dissemination of accident reports can begin to overcome.

When researching the self-regulated recreational diving industry, one discovers that fatality and injury statistics are, in the opinion of many, gamed for the sake of inducing commerce and the signing of liability waivers. This vacuum of accurate accident information from the industry itself creates the need to republish news reports about diving accidents as factual matters of public health and safety.

While those who publish claims that "diving is as safe as bowling" might not want news reports of dive fatalities reprinted in their entirety (see also, "Has PADI taken the Fifth?" in this post and Lies, damn lies, and statistics show dive fatalities up 60%), I personally doubt any legitimate news organization would take action against ScubaBoard or its members for re-posting such reports; particularly when the vast majority of such reports disappear after a few months from the respective news organizations' websites.

Even publishers that are primarily devoted to the diving industry are subject to the Fair-Use doctrine if their articles could be construed -- in a non-libelous manner -- to actually jeopardize diver safety (i.e. articles subject to criticism are allowed to be re-printed under Fair Use). BROAD protections are available to ScubaBoard and its members under both sections §107 (Limitations on exclusive rights: Fair use) & §108 (Limitations on exclusive rights: Reproduction by libraries and archives) of Title 17 of the United States Code. Here are two articles RE the Fair Use doctrine: from Wikipedia and The US Government's Copyright office.

(I don't like the idea of a so-called "nanny state," and fervently believe in taking personal responsibility. However, as the Supreme Court has ruled that corporations have powerful "person-hood" rights, should not corporations also be judged personally responsible for the words and deeds they choose to induce commerce?)