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

[Ken Kurtis]

One thing I'd really like to know is what Ken Kurtis has to say about the gauge. This is a L.A. County case and Ken was probably the coroner's forensic expert on the matter. Ken, where are you?

Right here. I did do the gear testing for the Coroner on this case and here's what's in the official record:

1. Analog gauge read roughly 150psi when pressure was zero.
2. Gauge read consistently high at all pressures.
3. Air in tank measured 55psi.
4. Victim buddy-breathed (not octo-breathed) to the surface.
5. Victim was conscious at surface and immediately complained of shortness of breath.
6. Victim & buddy started swimming to shore, but victim became unconscious before reaching shore.
7. CPR was performed on shore, EMS responded, victim transported to Chamber.
8. Victim treated in Chamber and then tranferred to a hospital.
9. Death was pronounced at hospital roughly 30 hours after the accident.

What's interesting to note here is what's described in #4-6. That's a fairly classic descrition of how a person who has embolised on ascent would react. They arrive at the surface OK, complain of breathing problems, and shortly after that pass out.

I don't know where this notion of "heart attack" came from. I don't have the full Coroner's report in front of me but I don't recall (some five years after the accident) that being the offical cause of death.

IF it truly was an embolism (note the qualifier "IF"), it's certainly possible that breath-holding while ascending which might produce an embolism, could have occured during the buddy-breathing ascent.

Hope that helps clear some things up.

- Ken

 

[openmindOW]

Thank you very much, Mr. Kurtis.

 

[Ayisha]

Thanks Mr Kurtis. Your response is always appreciated.

(What happened to the thank you button?)

 

[bleeb]

(What happened to the thank you button?)

The "Thanks" feature has been removed.

 

[drbill]

Thanks, Ken (good to see you at the Point last weekend).

Was the SPG reading about 150 psi higher throughout the range? An "experienced diver" would not seem to be affected by a relatively small difference like that. I know I never consider my gauges to be 100% accurate and always leave a margin for safety in addition to that recommended.

 

[akscubainst]

Interesting, I've had a big name manufacturer tell me that they would not replace a almost new gauge that read 200psi at zero psi because that was "within spec".

 

[Thalassamania]

Within who's spec? Any positive zero error at all is outside of a rational spec, see the Equipment Section in: Scientific Diving: A General Code of Practice

 

[akscubainst]

I agree but that's what I was told.

 

[Thalassamania]

What manufacturer? Who was telling you?

 

[Darnold9999]

In a previous life I was asked to prepare a policy paper for a local government on restricting the rights of skiers to sue ski hills. I think the parallels with the dive industry are moderately obvious.

A ski hill had been successfully sued for a skier injuring themselves and the industry was panicking. They wanted the local government to pass a law to prevent the same thing happening here and to make the waiver printed on the back of the ticket effective. (The case was in the US; the local government was not) In this particular jurisdiction at that particular time a waiver was pretty much ignored by the courts if there was negligence involved.

To make a VERY long policy paper short my conclusions were that passing such a law would be a mistake. Passing such a law would remove any incentive that a ski hill had to ensure that they were not negligent and negligence law, is what ensures that providers of products and services take care to ensure that those products and services do not harm us. My opinion was, and still is, that it should not be possible to contract out of negligence law - particularly with a back of the ticket waiver. Society wants providers of goods and services to take reasonable care that these goods and services don't harm us. (The hard part of this is to determine what is reasonable)

A further conclusion was that if the ski industry wanted to advertise skiing as a safe activity suitible for all ages and ability then they were actively assuming the risk of the activity. If skiing had inherent risks they had better make those risks clear to everyone they allowed onto their property, not minimize them. That if they wanted to be absolved of the risks of the activity they had better make it crystal clear to their patrons that there was a risk to the activity to not advertise the activity as risk free. This is what got the original ski hill in trouble.

As a direct result of the government deciding not to pass such a law. The ski industry made a series of changes. Skiing in this jurisdiction is much safer than it was. An example - padding around towers in the beginner areas and posting the rules of the road everywhere - and enforcing them.

While there needs to be a degree of personal resposibility, there also needs to be a balance. Who is best situated to determine the safety of a particular piece of gear or activity. A diver who may only dive a few times a year, or a shop that does nothing but provide dive related services. I should be responsible for my own behaviour, but I should also be able to rely on the gear I rent, or the service provider I am paying for a service. I should check my gear, but if I don't and the gear is defective because of something the shop did or should have done then they should be responsible for the consequenses of their lack of care.

To put it in simple terms if the shop rents me an SPG that they know reads high and I run OOA as a result we both share responsibility. I should have checked the 0 pressure and they should have either taken the SPG out of service or notified me of the problem. Remove their liability and there is no incentive to take the appropriate level of care.

Note we almost never see punitive damages in the ridiculous amounts that you see in other jusrisdictions and we do make unsuccessful litigants pay a portion of the successful litigants costs. Makes some think twice before bringing frivolous claims.