Legal & other issues from SG Mishap

[Thalassamania]

It's not often that you come across a completely new one. I guess the first question really is should the waiver stand up or is neglecting the fact that they were penetrating the wreck (if in fact such knowledge existed) reckless?

 

[H2Andy]

Well, that there's nothing directly on point basically means that both sides will end up having to find authority that justifies either extending or excluding existing doctrine to a new situation

no, sorry. it doesn't work that way. it's the proponents burden to provide case law in support of the position, and i get to shoot it down as not being on point or relevant.

of course, if i can find good case law i'll present it, but we're assuming an absence of case law on point.

My point is simply that the facts, which certainly turn one way or the other and which none of us know, could easily be such that would directly affect the verdict.

yes, we can all make up facts that will change the outcome, but until we have a set of facts to work from, no real analysis is possible

 

[H2Andy]

I guess the first question really is should the waiver stand up or is neglecting the fact that they were penetrating the wreck (if in fact such knowledge existed) reckless?

yes, you'd have to show that something the boat operator did was at least grossly negligent, not just negligent

if the boat operator knew that the divers had gone into a "forbidden" area the day before, and knew that the divers were intending to go back into a "forbidden" area today, and did nothing to stop it, one could argue gross negligence

i honestly have no idea how that fight will turn up. again, i'd argue no duty exists for a boat crew to "dive" for the divers. as long as it's not illegal, the boat crew has no duty to tell the divers how to dive.

then the question becomes, is diving in a "forbidden" area illegal?

 

[Thalassamania]

yes, you'd have to show that something the boat operator did was at least grossly negligent, not just negligent

if the boat operator knew that the divers had gone into a "forbidden" area the day before, and knew that the divers were intending to go back into a "forbidden" area today, and did nothing to stop it, one could argue gross negligence

That's my read. They'd do better to have a waiver that does not address divign practices but that just stresses the taxi service.

i honestly have no idea how that fight will turn up. again, i'd argue no duty exists for a boat crew to "dive" for the divers. as long as it's not illegal, the boat crew has no duty to tell the divers how to dive.

I feel that the boat crew sould not have a duty, but I am continuously amazed as the diving commuinity shoots itself first in the foot and then in the head by creating duties that would not have otherwise existed. This is classic, just like the "Diving is Safe" B.S. that has created so many other cases.

then the question becomes, is diving in a "forbidden" area illegal?

Might be, but I don't see how. It would have to be a Monroe County statue and that doesn't mean anything six miles at sea, does it?

 

[Gombessa]

no, sorry. it doesn't work that way. it's the proponents burden to provide case law in support of the position, and i get to shoot it down as not being on point or relevant.

of course, if i can find good case law i'll present it, but we're assuming an absence of case law on point.

Certainly the Pl bears the burden to make the prima facie case, but I don't think it's as clear cut as you make it (great courtroom game face, btw ) that no duty could reasonably be found. And if the Pl makes its case, D then does have to shoot it down, and in practicality (which is why I used that phrase, not to assume that both parties share a parallel burdens in making their case) will have to come up with contrary authority in order to show irrelevance.

And then there's always the review of law on appeal, where a court could find that given the facts, the trial court should have applied a statutory or common law doctrine that it dismissed. Whatever; hopefully we never have to find out either way.

 

[H2Andy]

Certainly the Pl bears the burden to make the prima facie case

i am not talking about a prima facie case. i am talking about establishing that the defendant owes the plaintiff a duty under these facts and existing law.

no duty=no liability

let me try to explain. a prima facie case is when you present evidence that a defendant breached a duty. if uncontroverted in one manner or another, it is sufficient for you to win a case.

what i am talking abuot is a legal argument as to whether even a duty existed

but I don't think it's as clear cut as you make it (great courtroom game face, btw ) that no duty could reasonably be found.

duty is for the judge to find, not for the jury.

And if the Pl makes its case, D then does have to shoot it down, and in practicality (which is why I used that phrase, not to assume that both parties share a parallel burdens in making their case) will have to come up with contrary authority in order to show irrelevance.

no. i keep telling you. the Plaintiff brings supporting law, and I argue that the supporting law is not sufficient to create a new duty. i can bring law that i want the judge to follow (and should, as a prudent attorney) but merely distinguishing the Plaintiff's cases should be enough.

And then there's always the review of law on appeal, where a court could find that given the facts, the trial court should have applied a statutory or common law doctrine that it dismissed.

huh? if you don't have duty, you don't have negligence. if there's a statute that applies, then it needs to be brought up in the Complaint and during the Motion to Dismiss. if they don't, they waive that argument at the appeals level.

all you're saying is that if i win, the Plaintiff may appeal. sure. that applies to all cases.

 

[Boatlawyer]

2d Restatement of Torts 324A creates duty where one has "assumed" it. It seems that the factual determination of whether the duty was assumed would be a fact issue for jury or at worst a mixed issue of law and fact.

I am trying to find a case on assumed duty in Florida to see whether I'm right.

 

[H2Andy]

torts 101

duty is a question of law

the judge decides whether there is a duty to assume

the jury decides whether it was assumed

(guys, you're arguing with a litigator)

 

[J.R.]

Wow... this is gettin' good... I'm getting more popcorn!!! (My money's on Andy... )

 

[Boatlawyer]

torts 101

duty is a question of law

the judge decides whether there is a duty to assume

the jury decides whether it was assumed

(guys, you're arguing with a litigator)

Check out Shealor v. Ruud, 221 So.2d 765 (Fla. 4th DCA 1969)

and Underwood v. City of North Miami, 559 So. 2d 97 (Fla. 3rd DCA 1990)