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

[boulderjohn]

The Defense I wrote is my prediction for what they will do; it is not my personal belief.

Except that the email trail shows that the fatal dive was planned as her AOW course dive.

I have not found where that is true. Please quote it.

As we have said in recent posts, the filing contradicts itself many times, saying at some times that the dive was a training dive and at other times that it was not. I think the fact that they have not ever specified what training dive she was doing is interesting.

Except that Snow or Liston provided the contact information for Potter for two students to buy drysuits from Potter. There is at least one living witness to that facilitation on the plaintiff's side. Snow also emailed and asked if Linnea had gotten the drysuit.

If I wanted to get picky, I would say that identifying a private citizen who might be able to sell a drysuit does not create a legal connection to the shop. I have a new student who realized ne needed a drysuit but was concerned about the cost. I suggested he look into used suits. He found one. Does that mean I have a legal connection to the guy (whoever it was) that sold it to him?

That was the shop's original story, except that the video apparently shows that to not be true.

One could argue that is exactly what the video shows.

 

[Marie13]

The magnitude of the tragedy here is unimaginable. As this forum is “dive litigation,” though, it is probably worth pointing out that the allegations of fact in the complaint are allegations, and it will likely still be some time before we know which facts the defendants will dispute or whether there are other relevant facts. The governing law of the state may also have things to say about assumption of risk for inherently dangerous activities, the effectiveness of liability waivers, and contributory negligence. It could be a year or more before the case concludes, and if it settles, we might not know much more than we know now.

Again, since the purpose is to discuss litigation, I would just cautiously propose the following hypothetical for discussion with the caveat that this is no way is meant to represent the facts of the specific case -- I don't know anything other than having read the complaint. This also does not necessarily indicate my personal views. This is only a hypothetical presenting an imagined legally competent certified adult diver facing some decision points.

Hypothetical:

Legally competent adult OW certified diver has only 1 post-certification dive 2 years ago. Legally competent adult diver decides to do AOW class in cold, challenging conditions. Legally competent adult diver signs waiver releasing instructor\dive shop\certifying agency from liability for negligence. Legally competent adult diver buys own drysuit from private party. Legally competent adult diver makes conscious decision to dive drysuit without inflator hose. Legally competent adult diver makes conscious decision to dive without ditchable weight. After experiencing discomfort at 15 feet in drysuit without inflator hose, legally competent adult diver makes conscious decision to do second dive to 60 feet. Legally competent adult diver makes conscious decision to enter darkening water near sunset without dive light.

Even assuming alleged bad advice from instructors at multiple junctures, in this hypothetical, legally competent adult diver had many decision points that arguably could have given any certified diver pause, which would likely be emphasized by the defense if the hypothetical situation resulted in litigation. What risks did the legally competent adult diver knowingly accept? If the hypothetical instructors only committed simple negligence, is the liability waiver effective? Also, which portions of the AOW e-learning or book did the hypothetical legally competent adult diver complete, and what warnings would that learning have provided about such situations?

PADI standards may well inform what the applicable standard of care should be, but they are not law.

So in other words, Linnea made bad decisions and her death is her own responsibility.

Were you aware there is another case going on with the same dive shop where they rented equipment to a non-certified diver who drowned?

 

[Ayisha]

...I have not found where that is true. Please quote it...

If #6 is not believed, #64, #65, and #66 show the planning of the AOW weekend.

#149 and #150 show the plan for that day. There is no discussion anywhere about dives for Linnea other than AOW course dives.

149. On the morning of October 31, 2020, Linnea sent an email to Snow inquiring about the plan for the training dives the next day, November 1, 2020. Linnea stated: “Hey Debbie! whatʼs the plan for tomorrow? I have not received an email.”

150. Snow responded to Linnea:
“Oh I sent and email out about three days ago. I wonder who else didnʼt get it. I havenʼt heard from anyone[.] Let me talk to Seth and get back to you[.] Seth is going to call you. I have a class right now. The basic plan is we are meeting at 11 at the ship and spending the night. Did you get a dry suit?”

It's a good thing I remember the layout of the Complaint:

6. On November 1, 2020, Linnea was a student in a Professional Association of Diving Instructors (“PADI”) Advanced Open Water (“AOW”) scuba diving training course offered by Defendant, Gull Scuba Center, LLC d/b/a Gull Dive Center (“Gull Dive”), of Missoula, Montana.

62. In October 2020, Linnea was recruited to participate in a course of scuba instruction to be offered by Gull Dive.

63. On or about October 18, 2020, Linnea contacted Gull Dive to inquire about the availability of an “Advanced class” in scuba instruction.

64. On that day, Snow, on behalf of Gull Dive, responded to Linnea, stating:
“Hi Linnea.
We actually are starting an advanced class next Sunday. We will have to do two weekends because we have to do four dives.
The next advanced class will not be until February of next year.
We are normally closed on Mondays but if you want to take the class we can meet you down there so you can get started on the
eLearning or get the book, whichever you prefer. The price is $250.00 and the book or eLearning is included but must be finished before class.
Let me know as soon as possible so I know wether to meet you tomorrow. Thanks Debbie”

65. Later that same evening, Linnea responded:
“Hi Debbie, thanks for getting back to me. I am free to meet whenever is convenient for you and do the payment and get the book.
Is gear included?
Just let me know what time. Thanks!
Linnea”

66. The following day, October 19, 2020, Liston, on behalf of Gull Dive, responded to Linnea’s inquiry to Snow from the night before, using the same email address: scuba@gbrv.net. Liston stated:
“Hi Linnea, thank you for the response! My day is open today so feel free to come into the shop before 5:30pm. Normally you need
to have your own gear for the advanced open water class, but since we don’t have any other classes going on next weekend we would be happy to provide you with gear. If you don’t mind texting me when you’re thinking about coming in, I will be in and out of the shop today. If you have any questions feel free to give us a call or email.
Best Regards, Seth Liston”

67. Liston, Snow and Gull Dive failed to disclose to Linnea that the “advanced class” they were “starting” “next Sunday” was actually a PADI Dry Suit Diver course that was already in progress, and the other students in the class had previously undergone an orientation to dry suit diving in a local swimming pool.

68. On or about October 19, 2020, in reliance upon her communications with Snow and Liston, Linnea enrolled in a PADI Advanced Open Water scuba diving training course offered by Gull Dive.

115. Upon information and belief, the Gull Dive Defendants combined at least two
different training courses into one for the dives at Seeley Lake: Linnea’s Advanced Open Water course and a Dry Suit Diver Specialty Course for Joel Wilson.

144. Prior to and on November 1, 2020, the Gull Dive Defendants knew that Linnea would be using a dry suit during the training dives on November 1, 2020, and they had a duty, at the very least, to ensure that the equipment they rented to Linnea was compatible with the dry suit they encouraged her to buy from Potter.

162. Rather than encourage and facilitate Linnea’s use of a dry suit on November 1, 2020, the Gull Dive Defendants should have recognized – and, indeed, they had a duty to recognize – that it was not safe for Linnea to use a dry suit during her Advanced Open Water training dives, and especially not an unfamiliar, inoperable dry suit.

163. Prior to and on November 1, 2020, Defendants, Snow and Liston, possessed
the authority to postpone, cancel or terminate the training dives on behalf of Defendants, Gull Dive, David Olson and Jeannine Olson, but neither exercised such authority.

 

[boulderjohn]

If #6 is not believed, #64, #65, and #66 show the planning of the AOW weekend.

#149 and #150 show the plan for that day. There is no discussion anywhere about dives for Linnea other than AOW course dives.

149. On the morning of October 31, 2020, Linnea sent an email to Snow inquiring about the plan for the training dives the next day, November 1, 2020. Linnea stated: “Hey Debbie! whatʼs the plan for tomorrow? I have not received an email.”

150. Snow responded to Linnea:
“Oh I sent and email out about three days ago. I wonder whoelse didnʼt get it. I havenʼt heard from anyone[.] Let me talk to Seth and get back to you[.] Seth is going to call you. I have a class right now. The basic plan is we are meeting at 11 at the ship and spending the night. Did you get a dry suit?”

And, as I said, not one of them indicates a specific AOW course dive. The only that mentions a specific class is a group email that talks specifically about the drysuit class.

Now, earlier on there was mention of the use of a compass, which is an AOW skill, not a drysuit class skill. But Linnea does not have a compass and does not seem to be involved with that.

 

[boulderjohn]

So in other words, Linnea made bad decisions and her death is her own responsibility.

I am sure that is what the defense will argue. If they can show that she was not doing an instructional dive and was not being supervised, then she made a personal decision at every step.

Please don't mistake this for my belief; I believe the actions of the shop and the instructor were horrific, but if she was not doing a class, then those were arguably her decisions.

Were you aware there is another case going on with the same dive shop where they rented equipment to a non-certified diver who drowned?

As bad as that was, it has nothing to do with this case.

 

[Ayisha]

...As we have said in recent posts, the filing contradicts itself many times, saying at some times that the dive was a training dive and at other times that it was not. I think the fact that they have not ever specified what training dive she was doing is interesting...

Yes, we're agreed on that. There's something funny there that we can't quite piece together. My guess is that the defense has something irrefutable. We might not figure it out until and if we ever see the defense.

 

[tarponchik]

Breaking down the physics. She had 29 lbs of lift. WIthout all that lead, she would be positively buoyant wearing a dry suit, even if no air is inside. However, 44 lbs is so incredibly much. Having 20 lbs in the pockets would inhibit finning as well.

I don't know if I'd be strong enough to overcome all that weight and the restriction imposed by a shrink wrapped dry suit and 20 lbs at my upper thighs.

I wonder what the rational was to stuff her with that much lead. There is a common misconception that diving in a dry suit requires a significant amount more weight than diving in a wetsuit. In reality, most people will find that they only need to add a little more weight, no more than an additional 3 – 6 pounds whilst diving dry compared to wet. So, judging by Linnea's pictures I've found, I'd guess a person of her built will need no more than 18-20 pd to dive in 8 mm, making it about 25 pd max to dive in dry suit.

 

[wetb4igetinthewater]

I wonder what the rational was to stuff her with that much lead. There is a common misconception that diving in a dry suit requires a significant amount more weight than diving in a wetsuit. In reality, most people will find that they only need to add a little more weight, no more than an additional 3 – 6 pounds whilst diving dry compared to wet. So, judging by Linnea's pictures I've found, I'd guess a person of her built will need no more than 18-20 pd to dive in 8 mm, making it about 25 pd max to dive in dry suit.

That does match my experience with my 7 mil and my trilam dry suit. I only wear my 7 mil for when I put in/take out the chain for the mooring line to an anchor each spring/fall at my family's beach house along the Hood Canal. I know that the instructor has (had?) a DUI CLX450 trilam dry suit. I don't know how much weight she used, but I'd wager that it isn't close to 44 lbs. When I'm in a dry suit (I'm about 5'11", 200 lbs) I have 26 lbs, including my BP/W and STA. This is saltwater. I think I use 21 lbs in fresh water (been a while).

 

[Seaweed Doc]

Is it possible the attorney and plaintiffs didn't know which AOW dive Linnea was doing?

We don't know how many other people were on site at the time. On the one hand, Linnea may have been the only AOW student on site. Who besides her and the defendants would know the plan? For that matter, who would know full names and contact info for AOW students besides the defendants? How would the plaintiffs identify which dive was planned?

On the other hand, maybe the plaintiffs know this was just a fun dive.

But why would a student do a fun dive beyond course requirements in a Montana lake in November?

 

[KevinNM]

If I wanted to get picky, I would say that identifying a private citizen who might be able to sell a drysuit does not create a legal connection to the shop. I have a new student who realized ne needed a drysuit but was concerned about the cost. I suggested he look into used suits. He found one. Does that mean I have a legal connection to the guy (whoever it was) that sold it to him?

If you said, ‘call Joe Blow, he’s going to set you up with a great deal’ and Joe Blow provided obviously incomplete and hence nonfunctional equipment that can be argued led to your students death in your presence in a paid class I’d expect you’d get a personal invitation to discuss this interaction with an attorney and a court reporter.

If it turns out that you were getting paid an incentive by Joe Blow to refer ignorant students to him who wouldn’t recognize that they were being supplied substandard or defective equipment I think it might go badly. Not that this has yet been alleged.