OP
ItsBruce
Contributor
Based on what little I know, this is a terrible case for the plaintiffs. The only thing that even put it on the proverbial radar screen was that the dive shop won based on the waiver and release and the Court of Appeals then held it did not apply.
As far as this being a terrible case for the plaintiffs, they will first have to show the shop did something wrong, such as providing a short fill or a malfunctioning spg. They might be able to show the shop rented the deceased gear without looking at his log book to see that he had been diving recently, but I doubt that this would support a finding the shop did something wrong. If the plaintiffs can't show the shop did something wrong, they lose.
How does one prove a short fill? The deceased is in no position to testify as to the starting pressure in his tank. Perhaps his son could do so, but that is not likely. Perhaps the deceased had an air integrated computer that recorded the start pressure, butt if it was rental equipment, that is not likely. Or perhaps, the deceased was OOA so quickly that there must have been a short fill.
On the other hand, the shop probably has procedures for the filling of tanks and its personnel will testify that they always follow those procedures. Thus, at a minimum, the jury would have to decide who was telling the truth about the starting pressure on the tank.
Of course, if the plaintiffs show the deceased knew he had a short fill and dove it anyway, or his son knew he had a short fill and they did the dive anyway, then the OOA was mostly the deceased or his sons' fault. In that instance, any award would be reduced by the percentage of fault attributable to the deceased or his son.
So, the plaintiffs find themselves on the horns of a dilemma: Proving a short fill proves the deceased was negligent.
As if proof of some negligent act was not a big enough problem, under California law, the shop has a defense called "primary assumption of the risk." That doctrine basically says that if someone is injured in a recreational activity as the result of a risk that is inherent in the activity, one otherwise responsible for the injury is not liable. For example, when playing football, a player will not be liable for tackling another player so long as the tackle is within the contemplation of the game. When playing baseball, a batter who is hit by a "bean ball" has no recourse against the pitcher who threw it.
So, the plaintiffs will have to avoid the "primary assumption of the risk" doctrine.
If the plaintiffs can prove some neglect, either in providing a short fill or a bad SPG, they will still have to show that that was a substantial factor in he decedent' s death. That will be quite a challenge. Where is there evidence that the deceased would not have had a heart attack but for the OOA and CESA? A short fill or a bad SPG might lead to an CSEA, but how does that cause a heart attack? Perhaps an expert would testify that a diver who has had an OOA will be so stressed as to then have a heart attack. However, I doubt it.
All-in-all, the plaintiffs' case seems to really suck even if the waiver and release are not valid.
As far as this being a terrible case for the plaintiffs, they will first have to show the shop did something wrong, such as providing a short fill or a malfunctioning spg. They might be able to show the shop rented the deceased gear without looking at his log book to see that he had been diving recently, but I doubt that this would support a finding the shop did something wrong. If the plaintiffs can't show the shop did something wrong, they lose.
How does one prove a short fill? The deceased is in no position to testify as to the starting pressure in his tank. Perhaps his son could do so, but that is not likely. Perhaps the deceased had an air integrated computer that recorded the start pressure, butt if it was rental equipment, that is not likely. Or perhaps, the deceased was OOA so quickly that there must have been a short fill.
On the other hand, the shop probably has procedures for the filling of tanks and its personnel will testify that they always follow those procedures. Thus, at a minimum, the jury would have to decide who was telling the truth about the starting pressure on the tank.
Of course, if the plaintiffs show the deceased knew he had a short fill and dove it anyway, or his son knew he had a short fill and they did the dive anyway, then the OOA was mostly the deceased or his sons' fault. In that instance, any award would be reduced by the percentage of fault attributable to the deceased or his son.
So, the plaintiffs find themselves on the horns of a dilemma: Proving a short fill proves the deceased was negligent.
As if proof of some negligent act was not a big enough problem, under California law, the shop has a defense called "primary assumption of the risk." That doctrine basically says that if someone is injured in a recreational activity as the result of a risk that is inherent in the activity, one otherwise responsible for the injury is not liable. For example, when playing football, a player will not be liable for tackling another player so long as the tackle is within the contemplation of the game. When playing baseball, a batter who is hit by a "bean ball" has no recourse against the pitcher who threw it.
So, the plaintiffs will have to avoid the "primary assumption of the risk" doctrine.
If the plaintiffs can prove some neglect, either in providing a short fill or a bad SPG, they will still have to show that that was a substantial factor in he decedent' s death. That will be quite a challenge. Where is there evidence that the deceased would not have had a heart attack but for the OOA and CESA? A short fill or a bad SPG might lead to an CSEA, but how does that cause a heart attack? Perhaps an expert would testify that a diver who has had an OOA will be so stressed as to then have a heart attack. However, I doubt it.
All-in-all, the plaintiffs' case seems to really suck even if the waiver and release are not valid.
