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

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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.
 
Experienced or not I can't see as though the equipment had anything to do with it. Just me, other may see it differently. If it were in NY I would definitely take the case on the side of the dive shop, I can't see any instance in which they would lose here. The jury is selected by both sides, I have ability to say no to any juror.

The gauge supposably ran "high". So the diver may have thought they have more air than actual. OOA event occurs. Though resolved successfully - I doubt anyone would argue that an OOA incident would not cause a little stress. Diver gets to shore - and the added stress may have triggered a heart attack. Seems plausible and certainly not frivolous to me.

BTW - As said nicely by Ellis at this point everyone gets to have a chat and discover the real facts. So far the only part that is ridiculous is that the person who drew up the original waiver made a what I would call a sophomoric mistake that is now costing the dive shop.
 
A 17-year-old person died. Are you saying that it is a good thing that he died? Nice.

News Story:
Friedman said Huverserian, 45, was in good shape and an experienced diver.

Just for clarification... The 45-year-old died, the 17-year-old survived.
 
I don't know that the family deserves a day in court on such frivolous grounds. All I've seen was diver responsibility.

The question as to whether the claim is meritless is determined in a court, not in the newspaper. That's why we have trials in America.
 
Just for clarification... The 45-year-old died, the 17-year-old survived.

You're right. Sorry, I scanned the article too quickly.

Still, I don't think it is funny that a 45-year-old father of two died while diving with his 17-year-old son. It's sad.
 
The gauge supposably ran "high". So the diver may have thought they have more air than actual. OOA event occurs. Though resolved successfully - I doubt anyone would argue that an OOA incident would not cause a little stress. Diver gets to shore - and the added stress may have triggered a heart attack. Seems plausible and certainly not frivolous to me.

Perhaps, however what other risk factors did he have...diabetes, smoker, family history, age and gender, high blood pressure, high cholesterol, heavy drinker.

He was a 45 year old male, much higher risk. I didn't list stress here as it is already implied and i'm sure i missed a bunch of others.

Now I wonder if an autopsy was done.

Plausible maybe, provable?
 
This is the rest of the language in the release from http://www.leagle.com/unsecure/page.htm?shortname=incaco20100526034

"This agreement is entered into between Catalina Scuba Luv and rentor and is a release of the rentor[']s rights to sue for injuries or deaths resulting from the rental and/or use of this equipment. Rentor expressly assumes all risks of skin and/or scuba diving related in any way to the rental and/or use of this equipment. Rentor hereby acknowledges receipt of the equipment is in good working condition and that he/she has examined the equipment to ensure that it is free from defects, including checking both the quality and quantity of air in any scuba tank(s) rented. Rentor also understands that Catalina Scuba Luv and its employees, owners, officers, or agents shall not be held liable or responsible in any way for any injury, death or other damages to rentor or his/her family, heirs, or assigns which may occur as a result of the rental and/or use of the equipment, or as a result of product defect, or the negligence of any party, including the released parties, whether passive or active. I have carefully read and understand the above agreement. By signing this agreement, I exempt and release Catalina Scuba Luv and all related entities as defined above, from all liability or responsibility whatsoever for personal injury, property damage, or wrongful death as a result of renting and/or using the equipment, however caused resulting but not limited to product liability or the negligence of the released parties. Rentor agrees that he/she will be charged for damaged or missing gear."
 
Fairly standard. They ruled based on the line about multiple days and boat dives. Apparently they feel it only applies in those situations.

Seems to me if the equipment is good enough for a boat dive or multiple days then its good enough for a single day beach dive. Not really a legal defense but still.

I need to replace my keyboard...my a key only works every 10th time or so.
 
Sure most of us dont check gear when we rent and that as is obvious here can be a real disaster.

Um nope. I'm even more careful with checking rental gear than I am with my own!
 
Um nope. I'm even more careful with checking rental gear than I am with my own!

True some do and which is why I said most. You are definately one up in the game and smart for doing so. This story just reminds me that when I do use rental gear to double check it.

Allthough in this story the state of the gear is in question. If its found to be defective prior to exchanging money its clear cut and an easy solution.
 

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