Merged: Liability Releases - shop sued diver's death, Catalina Island 2005

[Thalassamania]

From the first post in the thread-



Why the assumption of inadequate training?

I don't see any other information in the thread that indicates there was anything done improperly during the emergency ascent. Is there some information you're aware of that I missed?

Having a cardiac arrest after the event is hardly indicative that improper emergency procedures were used or that training was inadequate.

Sorry if I was unclear, I don't personally think that there's much of a case either way, I was attempting to dismiss the SPG argument by equating it to the training one that I thought was patently incorrect.

 

[Doc Harry]

Phil is right. Without the protection of liability waivers, many business will cease to function, and many activities will be banned.

Sleazy lawyers and sleazy clients. A few scumbags are going to ruin it all for everyone else.

 

[Jim Lapenta]

True and they would have to prove Oceanic knew it was defective and that no one else had used it to possibly damage it unintentionally. Ie joe blow rented said rig three days before, During rinse he forgot or the dust cap came off. Water got in first stage which was inadvertently forced into the SPG when next diver used it. Water caused gauge to be off when pressurized. In that case if joe blow has good insurance or lots of assets Ms Sue M Shyster goes after joe blow for bigger payout as he in fact caused the failure which led to the death of mr so-called experienced diver who rented said gear from said shop after joe blow had used it. and the knee bopne is connected to the groin bone as that is where joe blow is gonna get from Ms Sue M Shyster. Damn I should be writing briefs instead of just wearing them! Well boxers actually but that is another case that a looney California land of we ain't responsible for nothin" appeals court will just go goofy over.

 

[justintimetobelate]

Not banned, companies just wouldn't be able to afford to provide the service with the possibility of being sued.

Many of the things that you see where you go well duh...ie contents my be hot on a cup of coffee...are because of the good old sue train.

 

[Amphiprion]

As I said in a previous post, we must understand that this was a California appeals court determination of contract law regarding the incorporation of the heading into the contract. The only issue here was whether the defendant could have summary judgment based on the waiver. Turns out that this was not the case.

State law and laws of individual jurisdictions vary regarding contract law and liability releases.

When I am drafting a contract (I am a Texas lawyer, not your lawyer and not providing legal advise)... I will often put the most general term at the top of the contract. For instance "Liability release".

Remember, anybody can sue you for anything at any time. There are sanctions for completely frivolous lawsuits, but you still have to deal with a lawyer. I could be sued for saying that I don't like obama under the cause of action of intentional infliction of emotional distress. Would I prevail - certainly, but I could still be sued.

 

[Doc Harry]

HA! Ever see a lay person try to sue a lawyer? You can't find a lawyer who is willing to sue another lawyer.

....Remember, anybody can sue you for anything at any time. There are sanctions for completely frivolous lawsuits, but you still have to deal with a lawyer. I could be sued for saying that I don't like obama under the cause of action of intentional infliction of emotional distress. Would I prevail - certainly, but I could still be sued.

 

[Amphiprion]

HA! Ever see a lay person try to sue a lawyer? You can't find a lawyer who is willing to sue another lawyer.

Two words. Legal malpractice.

 

[ItsBruce]

... but suing over the semantics of a piece of paper to somehow ignore the implication that a diver was, in fact, responsible for their own death is symptomatic of the fact that in this day and age, nobody is prepared to accept their own repsonsibility for anything.

No one was suing over the semantics of a piece of paper. The family of the deceased was suing over his death.

Ordinarily, it would be for a jury to decide whether the dive shop did something wrong and whether that thing was a substantial factor in the diver's death. In making this decision, the jury has to evaluate the evidence and resolve conflicts in the evidence to find the facts. However, sometimes, there is not a dispute over the essential facts. When that happens, there is no need for the jury to find the facts as they are already there. When there is no dispute over the facts, the judge can just apply those to the rules of law and make a decision.

The procedure for asking the judge to apply the law to a set of undisputed facts is called a "summary judgment." The basic idea is that the moving party, whether a plaintiff or a defendant, submits a set of "facts" to the judge. Each "fact" must to accompanied by evidence that, if believed, would prove the fact. The moving party then identifies the applicable principles of law and argues how the "facts" when applied to these principles, compels a ruling in its favor.

In the Catalina Scuba Luv case, the dive shop essentially submitted a set of facts showing the waiver. From this, it attempted to show that applying the law to the facts, it would win, regardless of whether it was negligent or not.

In the appeal, the court basically said that the waiver was not effective and did not compel the conclusion the shop was not liable, regardless of whether the shop was negligent or not.

So, basically, the deceased diver's family sued; the dive shop presented the waiver and the Court of Appeals said that the shop could not get out of the lawsuit based on the waiver. It implicitly said that the deceased diver's family would have to show she shop was negligent and that the shop would have to show it wasn't negligent.

 

[ItsBruce]

Sleazy lawyers and sleazy clients. A few scumbags are going to ruin it all for everyone else.

Please note that unless there is quite a lot about which I do not know, I would not take a case like this on a contingency fee basis as the likelihood of winning seems to be very low. Even if there was evidence of a bad SPG or of a bad fill or even a malfunction in the deceased diver's regulator, I cannot imagine how the family can hope to prove it was a substantial factor in the diver's death.

Against that background, what makes the clients sleazy? If I rent an SPG and it does not work, I'm going to want my money back. Is there anyone around here who wouldn't want their money back?

The same for a short fill. If I rent a tank that is not full I'm going to want the shop to fill it or give me my money back. Is there anyone around here who wouldn't want their money back?

If I can't do a dive because the dive operator gave me a bad regulator or a short fill, I'm likely to demand another dive or my money back. Is there anyone around here who wouldn't want another diver or their money back?

So why are the clients sleazy? Could it be that they are sleazy because they sued even when there was a waiver agreement? No! By its own terms, the waiver did not apply to the particular dive.

And, keep in mind the outrage we saw relative to a dive operator whose alleged practices resulted in divers' air being contaminated with carbon monoxide. Are we sleazy for feeling that way?

So, if the clients are not sleazy for bringing the lawsuit, why is the lawyer sleazy?

 

[ItsBruce]

HA! Ever see a lay person try to sue a lawyer? You can't find a lawyer who is willing to sue another lawyer.

I've seen lots of lawsuits against lawyers. Some are well founded and others are not. Some are winners and others are not.

I think it would be harder to find a lawyer who was not willing to sue someone just because that someone was a lawyer, than to find a lawyer who was willing to sue another lawyer.