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

[Ken Kurtis]

I am wondering when a gauge malfunctions does it happen all at once or is it gradual.

It's impossible to tell. In general terms you would think it's a gradual thing over time, but what that time frame is is also impossible to tell.

Is it possible the gauge was accurate when starting the dive and during the dive malfunctioned?

Also impossible to tell without a picture of the gauge at the time it was rented or someone testifying that they saw the gauge at the time of rental and that it sat at
"0" with no air in the system. And absent a picture, the only other people who saw the gauge would likely have been (1) shop employees who might have reason to say it was accurate, and (2) the buddy/son of the victim who might have reason to say it was inaccurate.

All we can say is that when the gauge was tested immediately following the accident, it read 150psi high. Whether that's chronic or a one-time thing is impossible to say.

I will add that I've been told (BUT THIS IS NOT SUBSTANTIATED) that another party has tested the gauge a few times and hasn't gotten the same reading twice. Sometimes the gauge reads "0", sometimes it reads high.

I'd also add that IF THIS IS TRUE, it's not something that we'd consider unusual for an analog gauge and all the more reason to underscore why we say not to consider the reading you get to be the gospel truth and to build in a fudge factor.

I mean most everything breaks when you are using it, not when it is sitting on a shelf.

Not neccesarily. I've certainly seen my share of off-the-shelf new-in-the-box scuba items that didn't work correctly the first time. It happens.

As far as the "short fill" . . .

I don't think there's any credible evidence of a short fill. I believe that was simply a speculation that may have started carrying more weight than it should. (And I'll avoid my stand "DON'T SPECULATE" rant.) I think the shop personnel said the tank was full and if it wasn't, the diver didn't say anything when it was checked out at the shop, which usually includes hooking up the reg, breathing off it, looking at the fill pressure, etc.

Is it possible there was a leak from possibly the o ring in the yoke that happened causing the OOA at 80 fsw?

Doubtful as there was no such leak evident when the reg was tested following the accident.

Being overweighted,

Maybe, maybe not. He had 30 pounds on. On the high side (15% of body weight) perhaps but not necessarily obviously/grossly overweighted depending on other factors. Also don't forget that the aluminum 80cf he rented would have been +4 pounds positive when empty so if you factor that in, he was wearing 26 pounds plus 4 for the near-empty tank. Might not have been that far off the mark.

did he use more air filling and dumping his BC than he would have if correctly weighted, thereby making someone think he had a short fill?

Doubtful. Besides, there's no way to compute how often he filled or dumped his BC and it may have nothing to do with weighting. I could be properly weighted but if I'm nervous could be constantly filling my BC and then dumping the air from it which could increase my air consumption. On the other thand, I could be over-weighted, never put any air in my BC and it wouldn't affect my consumption at all.

The lesson to take away here is a simple one: WATCH YOUR GAUGES AND DON'T RUN YOUR AIR SIGNIFICANTLY LOW. In my opinion and the way I teach/advise, I want you on the surface with no less than 300psi. This allows for variations/inaccuracies in the gauge, use of more air from the reg on the surface, etc.

I think this accident stems from simply not watching the guage. Had the gauge been monitored more closely and standard safey measures of minimum air pressure left been followed, we wouldn't be having this dicussion. The rest of the points raised, IMHO, simply divert attention from the underlying cause of this accident.

- Ken

 

[dmoore19]

Thanks Ken. I don't know how often the gauges fail and I don't know if they "creep" or fail all at once.

If another place has tested the gauge and it doesn't come up with the same pressure consistantly, how would somebody know if it was defective or not? Maybe when it was rented out it was checked and it read zero? (not asking you for any answers just thinking out loud)

That was another reason I asked the question. If a gauge fails all at once, it would not be possible to say the gauge had anything to do with the incident. How could you lay blame on a faulty gauge if it failed at depth if it didn't give any warning of pending failure? For all intents and purposes if the gauge failed at depth, the failure could not have been forseeable and would therefore not be considered as being a form of of negligence on the part of the shop?

Just thinking out loud.

I didn't know the regulator had been tested or checked for leaks, sorry. I would think if an air integrated computer had been in use, a lot of these questions would have been answered already.

To me it seems like the negligence was on the part of the diver, not the shop. But I could be convinced otherwise if given different information than I have now.

 

[bowlofpetunias]

Two points:

1. Having things like waivers reviewed by an attorney is a good idea. But, a client must let the attorney know his or her goals. Do you really want the client to sign a waiver that waives EVERYTHING, or just certain things? You need to tell the lawyer those kinds of things.

2. I'm sorry, but I completely agree with the court's ruling that the waiver does not constitute an absolute, automatic defense because it refers to multi-day rentals or boat dives. Even if the gear is rented for 24 hours and runs across two days, that does not make it a multi-day rental. The 25th hour may make it multi-day. I don't think that I would have thought that renting equipment for a day of diving, even if I had to return it within 24 hours, would be a multi-day dive.

Now, be honest: Who here would have thought they were doing a multi-day rental when they went to Catalina, rented gear from a local shop to use for the day, with the expectation of returning it the next morning? How about with the expectation of returning it at the end of the day?

I must also say that I'm not sure I would have actually read the waiver language once I saw the heading which referred to "multi-day or boat" dives. I expect that I would have gotten to the heading, thought: "That does not apply to me," and skipped to the next heading.

Now, be honest: Who here would have done that?

 

[drbill]

2. I'm sorry, but I completely agree with the court's ruling that the waiver does not constitute an absolute, automatic defense because it refers to multi-day rentals or boat dives. Even if the gear is rented for 24 hours and runs across two days, that does not make it a multi-day rental. The 25th hour may make it multi-day. I don't think that I would have thought that renting equipment for a day of diving, even if I had to return it within 24 hours, would be a multi-day dive.

Not true... 24 hours is not one day if it falls within two separate days (Monday Noon to Tuesday Noon is TWO days). Of course one day is 24 hours (approximately), but not the reverse.

I must also say that I'm not sure I would have actually read the waiver language once I saw the heading which referred to "multi-day or boat" dives. I expect that I would have gotten to the heading, thought: "That does not apply to me," and skipped to the next heading.

Now, be honest: Who here would have done that?

If a diver fails to read the waiver, that is the divers' fault. The language you refer to was not simply a heading, it was the title of the waiver. I think anyone truly interested in what they were possibly signing away would read the entire thing, at least the first time they signed a waiver from a shop.

 

[David_57]

If he had decided to surface when at 500 or 600 psi which is the norm even if the gauge was out by 150 psi he would not have had an OOA situation, I mean how many competent divers breath their tank this low, he certainly did not have his buddy in mind. Pretty sad when it comes down to wording in a waiver instead of its intent and common sense. lets face it if he had followed the normal as mentioned above he would not have ran out of air period. Now we have a possibility of another dive shop spending a fortune to protect themselves and the only ones that gain are the thieving lawyers.

 

[drbill]

My practice and the one many others follow is to reach the surface with 500 psi rather than to begin the ascent at that level. If the gauge was only off by 150 psi, that would still be enough. I think that is what you are saying David_57. And I agree with the lawyer bit (although for the first time in my life I may have to actually use one). If common sense and personal responsibility still prevailed, I doubt we would even be discussing this situation.

 

[ROMO DIVER]

Dr. Bill,

The surfacing with 500 psi thing is something I have noticed divers becoming more and more lax about. 15-20 years ago we had to show our gauges to the divemaster when we got back on the boat and if you did not have at least 500 psi in your tank you sat out the rest of the dives. I have not seen a single boat do this lately. Also, with so many people going to computers I believe that they are more likely to use all the air they can because of the artificial sense of security of a computer. This is a disturbing trend and I do my best to teach my students otherwise.

 

[OldNSalty]

I somewhat agree with ItsBruce that if I saw a heading that I knew should not apply to me such as ‘multi-day dives’ I may not read it. I also concur with drbill that you should know what you are signing.
Something I have found to be mostly successful is to simply cross out and initial any part of a contract you don’t like before signing. It clearly will not work on everything (such as a house purchase) but on things like a general release form where the other party is some guy making minimum wage it surprisingly works well. They are shocked that someone would actually read and then modify the form and really don’t know how to deal with it. Usually they just file it or just stand there trying to figure out if you can do that.
If they raise a fuse and you truly have issue with the form then just walk away and go elsewhere.
On the issue of me having to verify that the shop’s gear is in working order-I may have an issue with this as I am not qualified to make that determination and I don’t think they are going to show me the maintenance records and rental records of the gear. I would gladly say that ‘it appears to work’ when I rented it but I could not honestly state ‘free of defects’ or any such thing. To require someone to do that is a little ridiculous.

 

[Thalassamania]

Dr. Bill,

The surfacing with 500 psi thing is something I have noticed divers becoming more and more lax about. 15-20 years ago we had to show our gauges to the divemaster when we got back on the boat and if you did not have at least 500 psi in your tank you sat out the rest of the dives. I have not seen a single boat do this lately. Also, with so many people going to computers I believe that they are more likely to use all the air they can because of the artificial sense of security of a computer. This is a disturbing trend and I do my best to teach my students otherwise.

We did away with hard and fast rule concerning, "500 psi back on the boat," decades ago.

The advent of computers made having a lot of gas on your back when you climb out rather foolish, since it could be used to hang out at 10 to 20 feet under the boat and thus increase both your dive time and your decompression safety. But it sounds like the real reason for such a change has been lost and now many divers are just ignoring the need for any margin.

 

[David_57]

Breathing down your gas to less than 150 PSI planning to surface with god knows how much when at 80 plus ft seems pretty foolish and total disregard for your buddy. If he had followed the simple rule of getting back on the boat with 500 psi min he would not have had an OOA situation he would have had 350 PSI left in his tank. It does not surprise me that rental gear can at times be faulty and the SPG could be out by 150 PSI so it beats my ass how anyone could consider the dive shop at fault here because someone decides to dive and take these kind of risks then when it all goes wrong blame the dive shop, computers or no computers what ever happened to gas planning based on your SAC rate.