Judge rules-Abandoned diver can sue charter company

[116fire]

Hey--leaving somebody is gross negligence. Not knowing you did it is criminal --in my opinion.
If it was me or a loved one the captain and or DM's least problem would be the lawsuit. (that insurence will probably cover)
$4M is of course ridiculous, be it should be enough to hurt--I would say it matters more how much it hurts, punative, than what a few hours drifting is worth. Hell I run into burning buildings for less than $100 an hour.
Waivers--I don't care what you sign, in this case their liable.
Waivers--Say you where doing a deep rec dive and got an undeserved hit--that is the sort of thing a waiver should cover, inherent risks of the activity.
An interesting aside, the NE wreck boats seem to adopt a "no nanny" we give you a ride to the moring line approach. The though is-- the more you try to qualify divers, are you assuming liablility. If you say scutinize peoples gear, saying some is not acceptable, are you making a statement that some is, and if (when) that gear fails are you liable...Food for though.

 

[RonFrank]

This was a much publicized incident, with the diver going on talk show programs, and providing a story to "Readers Digest".

I found some old information on this. Apparently:

This diver was part of a group that signed up though an LDS.

The diver started to descend on the sight, had problems equalizing, and got separated from his two biddies (blame all around on the three divers for poor diving practices).

He stopped his decent at 35', but once he was able to clear, rather than aborting the dive because he had lost his buddies, he instead descended to a depth of 108' looking for them (another poor decision).

When he could not find the oil rig, or his buddies, he ascended, and did a safety stop.

There was current, so he was no where near the boat when he ascended.

His buddies during a role call after the dive answered for him.

I'm sure there is a lot more to the story, but this is what I could find. It's easy to see how the mistake was made. However I think that it should have been avoided, but if one of his buddies just answered for the missing divers, at that point the issue becomes a LOT murkier. I know that they did indicate to the individual running the role call that the buddy was on board, but I'm not clear if they actually answered for him, or if they just responded that he was on board.

In any case, the fact that this is dragging out is bad. I also think the diver is an idiot for not just settling this out of court. Maybe that is not an option as the defense may have a very strong case.

 

[Thalassamania]

There is a passenger manifest, there has to be by law. How hard is it to check that against the bodies on board?

 

[RonFrank]

There is a passenger manifest, there has to be by law. How hard is it to check that against the bodies on board?

Well that would depend on the number of passengers involved, right? I mean how hard is it if you are running a cruise line? Likely a VERY difficult task?

Most of us have been on boats with 25+ divers. The DM does not know everyone by name and face, and if he is reading off names, and he gets an answer from each diver, the assumption is they are all there.

I don't know the exact procedure that was used, but I can see how it happened based on the fact that someone did respond for the missing diver.

They in fact picked up the missing diver on the second roll call.

It's easy to sit back and point fingers, and assess blame AFTER the fact. Without knowing the full story however, it's difficult to be an impartial judge.

 

[Thalassamania]

Well that would depend on the number of passengers involved, right? I mean how hard is it if you are running a cruise line? Likely a VERY difficult task?

Most of us have been on boats with 25+ divers. The DM does not know everyone by name and face, and if he is reading off names, and he gets an answer from each diver, the assumption is they are all there.

I don't know the exact procedure that was used, but I can see how it happened based on the fact that someone did respond for the missing diver.

They in fact picked up the missing diver on the second roll call.

It's easy to sit back and point fingers, and assess blame AFTER the fact. Without knowing the full story however, it's difficult to be an impartial judge.

I've run a lot of dives in my life, but somehow we never managed to leave anyone out at sea. I do not know what "standard" procedures where on that boat, or are in that area, but by definition either the procedures were inadequate or the boat was negligent. I'm sure that they would not let someone dive off their boat without a redundant second stage, yet they had no redundant way to assure that all divers were back on the boat (e.g., count noses and cylinders).

 

[Charlie99]

The topic of this thread is Can you sue (in California) for being left behind. A California judge says yes. I think so as well, but to what end and how much, that’s up to the plaintiff, his/her attorney and the jury

Waivers have their limits. In a lot of states waivers will not release someone for liability in the case of GROSS negligence (or criminal acts, such as deliberating abandoning a diver -- didn't happen here, but that's another example of the limits of waivers).

If they guy had been lost in the fog and the boat called the Coast Guard before leaving the divesite, there's good chance that the waiver would have been a defense and gotten a summary dismissal.

But what happened here is that the boat didn't discover him missing until after finishing the next dive at a different dive site. This ups the culpability of the DM, dive shop, and boat.

 

[Papa_Bear]

Drbill, the more you tell some people the less they listen! You are spot on and in this case the store hired the DM and she didn't dive that day at all! Her only job was to oversee the dive activity on the back of the boat! The only reason he showed up missing is she logged him in at the second sight and he never logged back in! So she assumed he was in the water when see didn't see him on board during the second dive? Then notified the captain when he didn't check in at the end of the second dive! Again she and his buddies are at fault! Don't ever answer for someone else! Never ever assume that responsibility! She never had a real good reputation as a good DM and was not thought of highly from what I have gathered!

 

[Riger]

OK .... (Here comes the skeptic in me)

How do 2 dive buddies answer for their buddy when they know he was not at the Safety Stop and did not surface with them?

Is it possible that the $4m is to cover Attorney Costs and then split 3 ways?
Is it possible that this was a planned 'setup'?

Just a thought..

Best Regards
Richard (Riger)

 

[Papa_Bear]

All three got separated and the one buddy thought the buddy he saw going back to the boat was the missing buddy, then once on the boat he dropped his gear saw the other buddy and figured the guy just got on the boat, the inherent problem with three people diving who didn't know each other well!

 

[Beachlover]

I have to admit that I would not be surprised if in fact it was staged.Kind of sad, but what some people will do for money makes me feel that way.None of us will ever know the whole/true story.