PADI 5-Star Water World sued for selling toxic scuba tank air

[Stirling]

Maybe he forgot? :06:
Maybe is all part of his master plan? "My brain injuries precluded me from remembering to file."
Maybe, he misplaced the evidence?

I'm a little surprised by the notion that there is something suspicious or even unusual about filing a lawsuit three years after the events. It isn't unusual at all, and there are lots of good reasons for doing it. I don't know the reasons in this case, but I *would* be surprised if anybody with a brain injury case filed it within a year of the events, unless they were filing in a state where they knew the court system would delay the trial for another three to five years. Filing and settling a case right away when there is a strong possibility that a serious condition will become substantially worse (or that an expected recovery will not occur) is malpractice. And lawsuits that are filed quickly are often continued because the plaintiff's condition has not stabilized.

 

[Kriterian]

in many states (Florida is one of them), the statute of limitations on a tort action is
four years. it may be three years in some states (?)

maybe this guy got some advice early on to file by X date and no later, and
human nature being what it is, he probably didn't get to it until now.

just a possibility

The statue of limitations on a negligence case in NC is 3 years, with wrongful death being 2 years. NC is also one of only a few remaining states to allow contributory negligence as a defense, in which the defendant can argue that the plaintiff's negligence contributed to his or her injuries. That would explain the "if he had smelled his air, he would have been fine" comment.

 

[michaelp68]

We don't actually know what happened in this case and why the lawsuit was not brought until around 3 years after the incident.

However, it is not so unusual. Whoever previously mentioned that this is unusual or typically indicative of a weak case, I strongly disagree.

Typically, a victim and his/her attorney will be dealing with the insurance carrier or the attorney for the shop that sold the defective product or committed the negligence, all before the lawsuit is filed with the court.

Typically, the lawsuit is filed with the court when the parties reach an impasse and are unable to resolve the claim on their own outside of court. This impasse can occur for many different reasons.

It is common that when the public first hears of the legal claim by the filing of a lawsuit in court, the legal claim has already been ongoing for quite some time.

I don't know if that's the situation in this instance, but it's certainly normal.

Also, in Connecticut, the statute of limitations for negligence is 2 years and the statute of limitations for a product liability claim is 3 years.

Michael

 

[H2Andy]

NC is also one of only a few remaining states to allow contributory negligence as a defense

that's very interesting. do you know if it's a complete defense? (in other words,
a plaintiff who is even 1% negligent can't recover at all)

 

[pilot fish]

that's very interesting. do you know if it's a complete defense? (in other words,
a plaintiff who is even 1% negligent can't recover at all)

We are talking about Comparative Negligence. Where negligence by both parties is concurrent and contributes to injury, recovery is not barred under such doctrine but plantiff's damages are diminished proportionately, provided his fault is less than defendants, and by exercise of ordinary care he could not have avoided consequences of defendants negligence after it was or should have been apparent.

 

[H2Andy]

PF, i understand =)

what i understood Kriterian to say was that NC is one of the few remaining
states where contributory negligence still remains in place (i.e. a complete
defense). was just checking that out.

you are correct; most states have gone to comparative negligence.

 

[pilot fish]

PF, i understand =)

what i understood Kriterian to say was that NC is one of the few remaining
states where contributory negligence still remains in place (i.e. a complete
defense). was just checking that out.

you are correct; most states have gone to comparative negligence.

Is he saying that if plantiff is found to be just 1% at fault he is barred from recovery in NC?

 

[H2Andy]

yeah, if it's true contributory negligence

that's what i'm trying to find out

 

[pilot fish]

PF, i understand =)

what i understood Kriterian to say was that NC is one of the few remaining
states where contributory negligence still remains in place (i.e. a complete
defense). was just checking that out.

you are correct; most states have gone to comparative negligence.

I also do not see how plantiff contrubuted to his injury if the contamination was from ordorless and tasteless gas. The provider of the tank has a duty to give you uncontaminated gas. That is what you contract for when you buy it. How would he have known it was bad gas?

I think the bigger problem is causation and how this is traceable to a bad tank, that tank, 3 years ago. Did he dive after this incident?

 

[Stirling]

yeah, if it's true contributory negligence
that's what i'm trying to find out

Apparently, North Carolina is a true contributory negligence case. From a current website on medical malpractice claims: "In North Carolina, a claimant's contributory negligence bars recovery completely. Miller v. Miller, 273 N.C. 228, 160 S.E.2d 65 (1968)."

Of course, in true contributory negligence states, a jury who thinks a plaintiff was only 1% at fault and understands that saying so means the plaintiff gets nothing at all, refuses to find that the plaintiff was at fault. That is what used to happen here in Arizona, before we went to a comparative fault scheme.

To say that the plaintiff is at fault because the air was obviously "malodorous" is a pretty dangerous trial strategy. It amounts to saying "we screwed up so badly he should have noticed it right away - that air really smelled bad, so he couldn't have missed it." If that is true, how did the guy who filled the tank miss it? And if the guy who filled the tank *did* notice it and filled the tank and gave it to the diver without saying anything about it, there is a question whether the injury causing behavior was deliberate - and contributory negligence isn't a defense to an intentional tort. Plus, the possibility that it was intentional practically guarantees an instruction on punitive damages. Even if it doesn't make sense that a person would actually do such a thing deliberately, if the jury gets that instruction after hearing evidence that really makes them angry, the defendant is screwed.