Judge rules-Abandoned diver can sue charter company

[Teamcasa]

GROSS NEGLIGENCE - Failure to use even the slightest amount of care in a way that shows Recklessness or willful disregard for the safety of others.

NEGLIGENCE - The failure to use reasonable care. The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under like circumstances. A departure from what an ordinary reasonable member of the community would do in the same community.

http://www.lectlaw.com/def2/n010.htm

 

[frankc420]

I don't think this guy expects $4 million. My guess is he asked for so much to get national attention. He wants his story out there and he wants people to listen to his story. He'll fight it, get an offer, decline, they'll double the offer and he'll accept.

 

[Hetland]

The insurance company's $600 an hour lawyers will take this through discovery (document exchanges, depositions, etc.) then make a motion to dismiss the case again, and THEN an offer will be made. They do this to discourage casual suits (and cause the lawyers like to get paid). Sometime between that, and the trial, the offers will start being made.

 

[Clammy]

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 --
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?

The spirit of those contracts is that in the event of an accident within an inherently dangerous activity, that you don't hold the charter responsible. But you can not seriously think that it is okay and within the scope of that contract to expect the charter to NOT be held responsible when they leave someone to die due to gross negligence. Then the Dive operators would have no reason or responsibility to even hire qualified people to run these operations. It's not like they have to take extraordinary measure to figure out that 24 people are on board an 80ft vessel rather than 25.

 

[Peter Guy]

Hetland, I sure hope the insurance company has a better contract than at $600/hour! Also, since trial is set for June and this may very well be the final pre-trial non-evidentiary motion, I'd be shocked, really shocked, if they haven't done ALL of the discovery already.

The one BIG question is: Is leaving a diver "gross" negligence or merely simple negligence? While I think it was probably negligent (although we certainly don't know what went on -- for example, did someone answer "here" for the missing diver?) to leave the diver, I don't think it should be gross negligence.

 

[almitywife]

wouldnt this partly form the gross negligence claim

"At the second location, the boat staff noticed Carlock was gone, but called the U.S. Coast Guard to the second dive site to look for him, not the first site, where he had been abandoned, his suit states. "

they didnt even know where they lost him.... just that eventually they realized he was missing

which would imply staff overlooked his failure to return to the boat, didnt have a look out for divers on the surface, didnt log him back onto the boat, didnt notice his absense during the move to site #2 and didnt log him into the water at the beginning of dive #2

alot of failure points there that, well, simply failed

 

[D_B]

good points

 

[almitywife]

is anyone else getting threatening PMs about responding to this thread

if yes, please advise - pm will be fine

cheers

 

[D_B]

Hmmmm ... Now that is a telling post

 

[ClayJar]

I don't see why anyone would be upset about this thread. It's basically come down to an interesting discussion about negligence versus gross negligence. The former is generally covered by waivers and assumed risks, while waivers generally cannot absolve someone of the latter (although even a paralegal student would know to note that it varies by jurisdiction ).

Obviously, the question of whether the incident would be simple or gross negligence is worthy of consideration. If it were not, the suit either would have moved forward or would have been tossed out. That is not to say that the operator *was* grossly negligent, of course, just that the question must be considered as to where the line is drawn in this case. Of course, we have but one description of the incident (and I imagine the op is specifically precluded from discussing it, as the suit continues).

Without knowing all the details, it would be foolish to comment on the validity of the claims or defenses in particular, but it is certainly in every boat diver's self-interest to think about responsibilities, both of the boats they ride and of themselves. If leaving a diver behind is *not* necessarily grossly negligent, for example, would that give significant incentive to divers to take more initiative for their own safety (and return trip)? There are useful and interesting thoughts to be had here.