Legal & other issues from SG Mishap

[H2Andy]

I'm no lawyer but might they be creating a duty once they start deciding what entrances to leave open and which to close? ie, If I do nothing and I tell you that I'm not going to do anything, you would be silly to expect that I've done it well. On the other hand if I do something, and you come to depend on what I did, might you be justified in expecting that I have done it?

i think i could safely argue that sealing some entrances does not mean that all other entrances left open will not lead to an accident if you dive them regardless of training and preparation. no reasonably trained diver could possibly expect that.

what you are asking these guys to do is guarantee that no one will die in a penetration wreck. that can only be accomplished by sealing ALL entrances.

remember, we're talking about an inherently dangerous activity here (penetration wreck diving), and anyone who undertakes it basically assumes the risk for that activity.

here are two scenarios:

--divers go in penetration dive; they silt out the place and die.

--divers go in penetration dive; they run into a pool of radioactive oil left over from cleanup and die

i can see UKARC being liable for 2 (it's not an open and obvious danger, and they undertook the duty to properly get the ship clean before sinking).

however, i just can't see UKARC being responsible for the first one

 

[Boatlawyer]

well, the medallions are sold by the Key Largo Chamber of Commerce (Artificial Reef Committee)

UKARC just accepts contributions



is the duty to maintain the same as the duty to prevent all possible penetration accidents from happening?

i would say not

Well, the law of contributory negligence as you know is not black and white. As previously stated, if UKARC is merely 10% liable, for say, overlooking that an opening previously barred had been breached, or using a chain to block opening instead of welding it closed, that could still be a substantial verdict.

There is plenty of literature hailing the virtues of the articial reef system. One purported advantage is that artificial reefs draw divers away from the natural reefs. That begs the question of whether the artificial reefs created should not be at least as safe as those found in nature.

 

[H2Andy]

As previously stated, if UKARC is merely 10% liable, for say, overlooking that an opening previously barred had been breached, or using a chain to block opening instead of welding it closed, that could still be a substantial verdict.

you are assuming that they have a duty to make penetration diving safe

i am arguing that they have no such duty

they may block off a few entrances to keep untrained divers away, but do you really believe they have a duty to block off every possible entrance that could possibly lead to an accident by otherwise trained penetration divers?

if you do, then the only possible solution is to block off ALL entrances so no one ever dies in a penetration dive.

is that what we want?

There is plenty of literature hailing the virtues of the articial reef system. One purported advantage is that artificial reefs draw divers away from the natural reefs. That begs the question of whether the artificial reefs created should not be at least as safe as those found in nature.

a penetration dive into a wreck can never be as safe as an open water dive on a reef, in terms of potential danger

the above is basically asking UKARC to turn the Spiegel Grove into a shallow reef dive or face litigation

should UKARC be held liable for deaths due to current, since they dropped the boat in a pretty wicked current area?

should UKARC be held liable if anyone gets snagged on a divet or pole and drowns since they didnt' remove every divet or pole in the entire wreck?

 

[MikeFerrara]

i think i could safely argue that sealing some entrances does not mean that all other entrances left open will not lead to an accident if you dive them regardless of training and preparation. no reasonably trained diver could possibly expect that.

what you are asking these guys to do is guarantee that no one will die in a penetration wreck. that can only be accomplished by sealing ALL entrances.

remember, we're talking about an inherently dangerous activity here (penetration wreck diving), and anyone who undertakes it basically assumes the risk for that activity.

here are two scenarios:

--divers go in penetration dive; they silt out the place and die.

--divers go in penetration dive; they run into a pool of radioactive oil left over from cleanup and die

i can see UKARC being liable for 2 (it's not an open and obvious danger, and they undertook the duty to properly get the ship clean before sinking).

however, i just can't see UKARC being responsible for the first one

What I'm trying to do is draw a corellation with other liability situations. If you walk through my backyard and step in a hole and break your leg, I might be on the hook but...aren't you a trained walker? Don't you know enough to look where you're going? You know that falure to look where you're walking can be dangerous. Why should I ever be held liable for you failing to make sound decisions in your walking?

They put this wreck in their back yard. Someone charges money, advertises and essentially invites divers to dive it.

 

[H2Andy]

they put a wreck in the ocean

they have no duty to make that wreck safe for penetration diving. penetration diving is a dangerous sport, and divers undertake it at their own risk.

 

[Boatlawyer]

Andy, some people argue that the problem with tort law is there is plenty of money to be made with a base hit as opposed to a home run.

A little bit of negligence is all it takes. If I were on the other side of your position that sealing some entrances does not mean that all other entrances left open will not lead to an accident if you dive them regardless of training and preparation. no reasonably trained diver could possibly expect that, I would agree with a little bit of it, then explain to the jury that is not the basis of the liability.

I would have all the web pages extolling the "tourist dollars" that the SG would bring to the community blown up to poster size, and do everything possible to highlight the disneyfication of diving, to counter the argument that this was a highly specialized type of diving. I mean, these guys weren't training, they weren't on a navy seal mission, they were just recreational divers. I think a jury would have a hard time making the distinction.

Then I would layer in the obligations undertook by the Artifical Reef Committee. Actually, I'm kind of liking the "Artificial Reefs should be at least as safe as Natural Reefs" theme.

If I were a personal injury attorney, and I'm not, I'd take the case in a heartbeat if I could find some deep pockets.

 

[H2Andy]

A little bit of negligence is all it takes.

i am arguing that there is no duty, thus no neglience. i would try to wiggle out at the Motion to Dismiss level, and then at the Summary Judgment level and never get to trial.

If I were a personal injury attorney, and I'm not, I'd take the case in a heartbeat if I could find some deep pockets.

i would not, because the principle of holding businesses responsible for people's own errors in judgment is just not good public policy

 

[Boatlawyer]

if you do, then the only possible solution is to block off ALL entrances so no one ever dies in a penetration dive.

is that what we want?

What we "want" is irrelevant to whether there is liability here. Liability is determined in the judicial branch. What we want is determined by the legislature. First you have to have a bad verdict, then the legislators, if they are inclined to, will move.

A more germane inquiry is how fully the question was addressed when the project was undertaken.

 

[Rick Murchison]

If I were a personal injury attorney, and I'm not, I'd take the case in a heartbeat if I could find some deep pockets.

And that is why lawyers should be kept far, far away from recreational activities. Far away. As in the next planet!
Rick

 

[H2Andy]

What we "want" is irrelevant to whether there is liability here. Liability is determined in the judicial branch. What we want is determined by the legislature.

not necessarily

case law sets precedent. the judiciary sets precedent through case law.

if the judiciary sets this precedent, it is in fact determining what we want.