Suit filed in case of "Girl dead, boy injured at Glacier National Park

[pauldw]

So to add to the civil procedure discussion, and these are general observations because I don't know anything about Montana law:
The plaintiff's complaint is, as noted earlier, the plaintiff's slant on the facts. The defendant's answer should agree or deny with the numbered points fairly, but there's a tendency to deny wildly. Which should piss off the judge when it's apparent that denials are poorly founded. That's because what judges want to have happen is resolution of the case without an unnecessary trial. The whole discovery process has in many places gone to requiring immediate provision of considerable information to the other side, without waiting for depositions (interviews) and interrogatories (written questions that are supposed to be answered honestly). In other words, the sides are supposed to agree on uncontested facts, up front even if it hurts their case, and then argue over legitimately contested facts, and argue over how the law should apply. Behind the scenes negotiation should resolve things. If not, there's summary judgment. The idea of summary judgment is that if you set forth a list of facts that the other side does not dispute, and if it is clear that you are entitled to judgment based on those facts, then your summary judgment motion wins you the case. Judges get peeved if people file bogus affidavits and so forth in summary judgment pleadings, because at that point being honest about facts can help the case get to resolution (but there's always a temptation to fudge on agreement on the facts). So, at least eventually the sides are supposed to get a little more serious about the facts. I suppose that's cynical, rather than how law professors would explain attorney's duties throughout the process, but I just don't think attorneys are often into even handed statements at least initially. I know I've been in litigation where it was frustrating to see an attorney refuse to agree to facts he knew were true, because he knew he'd lose the case on a motion for summary judgment. Once I went ahead and burned an attorney for doing that, by asking for sanctions, which the judge ordered against him.

And for the person who thought businesses can't treat employees unfairly anymore by claiming they're only independent contractors, yeah, that's not supposed to happen legally, but the person who noted that it frequently does still happen was spot on. And, of course, businesses routinely hire part timers so they can avoid benefits.

 

[Blackcrusader]

$12m lawsuit follows suit-squeeze death - Divernet

 

[CuzzA]

The defendant's answer should agree or deny with the numbered points fairly, but there's a tendency to deny wildly. Which should piss off the judge when it's apparent that denials are poorly founded.

Meh. Standard operating procedure is to deny everything. Judges were once lawyers too. They know the drill.

 

[Scuba Client]

PADI will settle out of court on this one.

 

[Manatee Diver]

During war, your SEAL team is on their own.

That might be true, during war. But during training, while there is risk, they mitigate as much of it as possible without compromising the training.

They say a pilot is worth a million dollars in training before they get to the fleet. Well someone that makes it through selection, while the Navy might not have spent a million dollars on that single man, with a 80% washout rate, they are often more valuable to the Navy.

 

[wetb4igetinthewater]

I'm not concerned with agency standards. My mentor approves, I approve. He knows I have the ability to look after customers safely. What technique do you disapprove and why?

[MOD EDIT]

So what technique am I against? Any and all harassment style training. That only has applicable for military personal. It has no application to a recreational activity. The only exception if you dive in the Sea of Cortez at night and you want to fight Humboldt squid, but you stand a good chance losing your first battle. People like Scott Cassell have their own encounters recorded. I'm not preparing anyone for anything like that.

What should a DM know? A DM should learn to identify and respond to both active and inactive panic. A DM should be an expert in proper weighting (including distribution) and evaluating a customer's shortcomings as a diver. They should be friendly, encouraging, and insightful. They should be able to provide tips that compensates for the typical inadequate training that plagues this industry.

The last thing a DM should have is a macho attitude.

 

[KevinNM]

I have, but what most people don't see is all the safety measures put in place for those "hits."

1. They know it is coming
2. The instructors doing the hits are free diving so they have limited time to mess with the
3. There is a safety diver for every student getting hit, with an octo out ready to hand it over until the student is completely kitted up and swimming with the group.

And there is a trained medical team standing next to the pool watching and ready to revive students if they pass out.

 

[Bob DBF]

The point I was trying to make by bringing up other activities that could result in death or serious injury was that SCUBA is one of the few that has mandatory instruction. The others depend on participants educating themselves...the onus is on the person who chooses to take up the activity.

Perhaps the mandatory training has given the impression that scuba is safe.

Good point. Here we have year round diving.

Everywhere has year round diving, if you can take it.

 

[Esprise Me]

Some interesting legal tidbits I've come across:

-Until 2015, Montana was one of only 3 states that didn't allow liability waivers. That changed with the passage of HB0204, codified as Montana Code Annotated section 27-1-753, which allows for waivers of ordinary but not gross negligence.

-Gross negligence is generally defined as something like extreme indifference or reckless disregard for the safety of others, as opposed to ordinary negligence, which can be any failure to take the precautions that a reasonable and prudent person would take. One Montana Supreme Court case I found, Heen v. Tiddy, echoed an earlier definition of gross negligence as "failure to use slight care." The distinction is generally left to a jury to decide. A lot of the Montana cases on ordinary vs. gross negligence I'm seeing seem to involve car accidents. Juries have found gross negligence in speeding and driving under the influence, and appellate courts have shrugged and said, basically, that's within their discretion.

-Being a contractor, even if you're really a contractor and not just a mislabeled employee, doesn't necessarily get your employer off the hook for your negligence. There are exceptions that nearly swallow the rule protecting employers from liability for their contractors, including when the contractor is engaged in an inherently dangerous activity. This law firm's website provides an explanation with citations: Employer Liability for Contractor Negligence in Montana - HagEstad Law Group, PLLC.

All of this is pretty much in line with the laws in most of the U.S., from what I understand. And all of it tends to suggest the shop is probably going to have to settle or lose.

 

[Blackcrusader]

All of this is pretty much in line with the laws in most of the U.S., from what I understand. And all of it tends to suggest the shop is probably going to have to settle or lose.

Or declare bankruptcy.