Judge rules-Abandoned diver can sue charter company

[fisherdvm]

It probably cost the guy $50,000 to get to this point in the lawsuit. If you ask for $5 mil, you'd probably settle in arbitration for $500000 or less. Half goes to your attorney, so he's going to walk home with not much more than 100-200K.

I think that is a fair amount to ask for, if your are going to proceed with a lawsuit. I'd get PTSD if I saw some fins around me. What's that movie? The one where the shark ate up the couple off australia??

 

[Teamcasa]

$4,000,000 ... he and his attorneys must smell victory in the air.

I’m sure that’s the case.

What usually happens in these cases is the defense council makes a few extra bucks by painting a rosy picture about how they are going to get the case thrown out. It rarely gets thrown out, so I wonder why the insurers keep falling for that. So until the judge said that the case should go forward, no one was likely making offers, they expected it to go away. Settlement offers will either be made soon, or may wait for the proverbial courtroom steps.

Knowing the jury system here, this is likely the case. No insurance company wants a case to be left in the hands of a jury unless they have a lock or an out.

It probably cost the guy $50,000 to get to this point in the lawsuit…

I’m sure it’s a contingency compensation case. I doubt he is out anything yet.

 

[merxlin]

How much is his life worth? 4 hrs is ample time to be severely sunburned. Not saying the $4 million is what should be sought in this case, but if he develops a melanoma because of the sunburn, then perhaps it is appropriate. CancerHelp UK

As mentioned he was covered by his exposure suit and at worst had his face exposed. Also, he was lost in the fog. As far as I know, the UV factor for a foggy day is quite low. I'm sure in 4 hours it may have cleared up, and he received a lot of exposure, but it wasn't like he was in equatorial waters in board shorts for that time.

I'd also like to know if he, being a long time diver, was religious about using sunscreen, wearing hats and long sleeves, and doing all the other things we should all do to avoid sun exposure.

We will never get the whole story. He needs to spin it to his advantage, and the dive op cannot comment while it's in litigation. I'm not saying he doesn't deserve something, but it seems that suing someone has replaced making an honest living, at least here in CA.

 

[almitywife]

.....We will never get the whole story. He needs to spin it to his advantage......

with all due respect Merxlin.. whether it was 4hrs our 16hrs or a day or 4 days... he was left out there, abandoned out in the ocean

ive witnessed 3 separate vehicle fatalities - that has messed with my mind big time, i cant imagine what being left out in the ocean and watching my only form of rescue driving away would do to me

yes - he didnt die, yes, they came back for him, yes it was "only" 4hrs but how was he to know they would return and when

he started writing notes to his family on his slate, put a price on that sort of trauma

cheers

 

[Thalassamania]

I spent two weeks "lost at sea." You know, the sailboat dismasted in a storm, the engine out, the radio out, the Coast Guard looking for us, the entire drill. I wrote notes to my family and we worked hard to jury rig and finally limped into harbor. It did not cross my mind to sue anyone, not even the SOB boat owner that had removed the tool kit after our Marine Office had inspected the boat prior to our charter. Looking back on it now ... the price for my experience? I should have paid the SOB. I grew up a lot in those two weeks, and it's a story I've dined out on often.

 

[Peter Guy]

What (almost?) all of the respondents have seemed to miss is what this ruling is about -- that is, can a diver, in California, sign away his rights to sue for a negligent (or perhaps grossly negligent) act?

The "legal facts" in this case are that "Dan" contracted with an entity to go on a dive trip AND, as part of that contract, signed a "Release of Liability" that probably read something like this (taken from PADI website):

I understand and agree that neither my instructor(s), ____________________________________________ the facility through which I receive my instruction, __________________________________________, nor International PADI, Inc., nor its affiliate and subsidiary corporations, nor any of their respective employees, officers, agents, contractors or assigns, (hereinafter referred to as ‘‘Released Parties’’) may be held liable or responsible in any way for any injury, death, or other damages to me, my family, estate, heirs or assigns that may occur as a result of my participation in this diving program or as a result of the negligence of any party, including the Released Parties, whether passive or active. In consideration of being allowed to participate in this course (and optional Adventure Dive hereinafter referred to as "program"), I hereby personally assume all risks of this program, whether foreseen or unforeseen, that may befall me while I am a participant in this program, including but not limited to the academics, confined water and/or open water activities.
I further release, exempt and hold harmless said program and Released Parties from any claim or lawsuit by me, my family, estate, heirs, or assigns, arising out of my enrollment and participation in this program including both claims arising during the program or after I receive my certification.
I also understand that skin diving and scuba diving are physically strenuous activities and that I will be exerting myself during this diving program, and that if I am injured as a result of a heart attack, panic, hyperventilation, drowning or any other cause, that I expressly assume the risk of said injuries and that I will not hold the Released Parties responsible for the same.

In denying this motion for summary judgment the judge had to have found that "Dan" was absolved from his obligations under the contract with the entity.

Do YOU think the judge was right to so hold?

 

[Teamcasa]

What (almost?) all of the respondents have seemed to miss is what this ruling is about -- that is, can a diver, in California, sign away his rights to sue for a negligent (or perhaps grossly negligent) act?

The "legal facts" in this case are that "Dan" contracted with an entity to go on a dive trip AND, as part of that contract, signed a "Release of Liability" that probably read something like this (taken from PADI website):


In denying this motion for summary judgment the judge had to have found that "Dan" was absolved from his obligations under the contract with the entity.

Do YOU think the judge was right to so hold?

We (at least I) don't know if he signed a release, a release like your example or anything else. However, Judges routinely allow cases where it could be considered gross negligence or where the responsible party failed to provide reasonable care, regardless of a waiver.

 

[Thalassamania]

What (almost?) all of the respondents have seemed to miss is what this ruling is about -- that is, can a diver, in California, sign away his rights to sue for a negligent (or perhaps grossly negligent) act?

The "legal facts" in this case are that "Dan" contracted with an entity to go on a dive trip AND, as part of that contract, signed a "Release of Liability" that probably read something like this (taken from PADI website):


In denying this motion for summary judgment the judge had to have found that "Dan" was absolved from his obligations under the contract with the entity.

Do YOU think the judge was right to so hold?

I think that the judge was right. I do not think it is good public policy for someone to be absolved of responsibility for negligent acts that they may or may not commit. That is what they should be buying insurance for.

 

[DennisW]

About the only thing I expect from a charter company is to take me to the dive site and then return me to the dock. If they leave me out there, I am going to sue. There is no excuse in leaving a diver. If I can't sue, they will suffer in some way. One way or another.

 

[Peter Guy]

Was there a release form signed? (It seems likely from the L.A. Times story which said the motion for summary judgment was based on "assumption of risk." But, not having seen the paperwork, it is POSSIBLE no waiver was signed -- but when have you done anything in SCUBA w/o signing a waiver? BTW, I've done several classes with one particular instructor w/o signing one!)

B. Thal wrote --

I do not think it is good public policy for someone to be absolved of responsibility for negligent acts that they may or may not commit.

First, I must assume he didn't really think this statement all the way through. Thal, do you really believe it is "not...good public policy for someone to be absolved of responsibility for negligent acts they" did not commit? (If they didn't commit the acts (the ones they "may not" have committed) shouldn't they be absolved?)

Second, I'm glad your position is NOT the standard one. To the contrary, the position outlined in a Scuba wrongful death case here in Washington is MUCH the better public policy. Please read Boyce v. West for a pretty thorough discussion of why it is NOT a violation of "public policy" to permit people to assume the risk and waive liability for Scuba diving.

3. Dennis -- Yes, you may expect the charter to take you out and bring you back, but if they don't bring you back, is that gross negligence or merely negligent and IF you have signed a contract that says you waive any and all rights to sue the charter, why SHOULD you be permitted to ignore the contract you signed?