Woman drowns during training - Hidden Paradise Campground, Indiana

[lowwall]

Don't expect much to come out of the claim against the quarry. But the way the US civil trial system works, the best strategy for the complainant is to include everyone with a remote chance of being even partially responsible at the beginning of the case.

Respondents can ask (motion) the judge to be removed from the case. If there's no possible legal basis for the inclusion, the judge will grant the motion and take them out.

If they are still in the suit, it's always possible the complainant will find something during the discovery phase which will help their case. For the quarry, the complainant will be hoping to find stuff like e-mails from employees discussing whether they should close down due to the conditions or maybe a citation from a government agency over impeded access. Basically anything that will cause the quarry's insurance company to decide to settle.

 

[bada3003]

There are no facts yet, only speculation. To remind everyone, these are the only 2 claims that deal with the BCD and what happened.

16. During the training process, and while in the water, Donna mentioned having difficulty descending in the water, at Which point Clay St. John negligently switched his buoyancy control device “BCD” and gave it to Donna so she could use his.

17. Due to Clay St. John’s negligence, Donna descended under the water and was unable to ascend causing her tragic drowning death.

The only thing we know for sure, is what is being claimed: 1) the student mentioned having difficulty descending 2) the instructor switched his BCD and 3) gave it to the student so she could use his, and then 4) she descended under the water and was unable to ascend.

We're missing what occurred between claim 16 & 17 (we need a 16.5) - it can be speculated that there was a weighting issue because of the mention of descending/unable to ascend which leads to more speculation, such as with a possible weight belt; but nothing about weighting is included in the claim. More information is needed about how switching the BCD was negligent as described in the claim - after he "gave" it to her, did she put it on? What actually made the switch negligent?

Part 2 of my thoughts!! This is a complaint for wrongful death damages. What do you think about claims 21 & 22 against the other defendant in the case?

21. As the premises owner, maintainer, controller and operator of the quarry lake, Defendant Hidden Paradise owed Donna Kishbaugh, as a public invitee, a duty to exercise reasonable care in maintaining its premises in a safe condition and warning the public of unsafe conditions, including but not limited t0, dangerously murky water that restricted Visibility, a lack of equipment to assist inexperienced scuba divers, and a lack of safety or rescue equipment.

22. Defendants were negligent in their operation, management, supervision, and/or control of the lake quarry and the training process.

Was thinking, what if I were called for Jury Duty when (and if) this case goes to court?!? I would probably be excused

If the part about BCD swapping is factual, what can happen and has happened to me is that the BCD inflator is not fully connected. In wreck dives in the Great Lakes where we wear dry gloves, the adapter may not be fully connected and separate during descent. The same goes for the drysuit inflator. You hit on the inflate button and nothing happens while descent accelerates.

Because I dive only sidemount and gas feed for BCD and drysuit is from different cylinders, unless I really screwed it up I can use the functioning unit as backup inflation. Also, reconnecting the hose is not a simple matter if wearing dry gloves and, perhaps in low vis. My protocol is to always check BCD and drysuit inflation before descent, but it's oftentimes complacency that can get you.

The above scenario may have nothing to do with the tragic event. But maybe some of you will benefit from considering this possibility (along with others such as where the boat captain or crew mistakenly close cylinder valves when they were instructed not to touch them) so that you're prepared for contingencies.

 

[Divin'Papaw]

What I cannot get my head around is a student with an instructor for a training dive at a 15-20' deep quarry ends up on the bottom, is unable to save themselves for whatever reason, and the instructor either cannot or will not rescue them. I cannot remotely fathom a course of events where that is explainable nor excusable. Therefore, I find it inexplicable why this instructor is not mentioned in the lawsuit. None of this makes sense.

 

[johndiver999]

What I cannot get my head around is a student with an instructor for a training dive at a 15-20' deep quarry ends up on the bottom, is unable to save themselves for whatever reason, and the instructor either cannot or will not rescue them. I cannot remotely fathom a course of events where that is explainable nor excusable. Therefore, I find it inexplicable why this instructor is not mentioned in the lawsuit. None of this makes sense.

If the student sinks uncontrollably and then the instructor is on the surface and when he tries to dive he gets a TERRIBLE sinus problem and can not descent past 12 feet. He gives up and figures the student will come to the surface in a minute or so when she realizes he is not there - but she doesn't come up? I have had my sinus lock up for no reason - fine on one dive and then 2 minutes later totally blocked.

 

[Divin'Papaw]

If the student sinks uncontrollably and then the instructor is on the surface and when he tries to dive he gets a TERRIBLE sinus problem and can not descent past 12 feet. He gives up and figures the student will come to the surface in a minute or so when she realizes he is not there - but she doesn't come up? I have had my sinus lock up for no reason - fine on one dive and then 2 minutes later totally blocked.

That is a POSSIBLE explanation but certainly NOT an excusable explanation. I do realize you weren't saying it was. After all, how was the student put in that situation in the first place?

 

[lowwall]

What I cannot get my head around is a student with an instructor for a training dive at a 15-20' deep quarry ends up on the bottom, is unable to save themselves for whatever reason, and the instructor either cannot or will not rescue them. I cannot remotely fathom a course of events where that is explainable. Therefore, I find in inexplicable why this instructor is not mentioned in the lawsuit. None of this makes sense.

In almost all cases, employers are responsible for their employees. An employee may be left out of a lawsuit if they have no personal assets worth going after or their inclusion would decrease the expected payout from the employer. Remember that, unless specifically instructed otherwise by the client, the goal of the lawyers is to maximize the financial payout to the victim (or, as in this case, to the victim's family). Assigning blame or determining the accident chain is not the primary focus. The former is the job of the criminal justice system, which doesn't appear to be interested here. The latter is unfortunately not the primary job of anyone in recreational scuba diving.

 

[Divin'Papaw]

In almost all cases, employers are responsible for their employees. An employee may be left out of a lawsuit if they have no personal assets worth going after. Remember that, unless specifically instructed otherwise by the client, the goal of the lawyers is to maximize the financial payout to the victim (or, as in this case, to the victim's family). Assigning blame or determining the accident chain is not the primary focus. The former is the job of the criminal justice system, which doesn't appear to be interested here. The latter is unfortunately not the primary job of anyone in recreational scuba diving.

The shop seems to be saying "he's not an employee he's an independent contractor and we aren't liable" and I also assume the instructor has professional liability insurance which would be an obvious target.

 

[boulderjohn]

The shop seems to be saying "he's not an employee he's an independent contractor and we aren't liable"

That won't fly. He is still acting as an agent of the shop. Additionally, many shops use instructors as independent contractors because it is cheaper for them to do it that way, but they really don't get to make that decision. There are very specific conditions that must be met in order to identify them as independent contractors, and in pretty much all cases I know, they don't meet those conditions. I worked for two different shops that used to call their instructors independent contractors before their lawyers explained to them that they had to be classified as employees.

 

[lowwall]

The shop seems to be saying "he's not an employee he's an independent contractor and we aren't liable" and I also assume the instructor has professional liability insurance which would be an obvious target.

It's all legal strategy and maneuvering at this point. It's obvious the shop would try to shift blame to the instructor, so either the complainant's lawyers feel they have the law on their side with regards to employer responsibility or the instructor had no insurance so they are rolling the dice and hoping something will turn up. Or the instructor's insurance company has already settled with the family. Or the shop's insurance limits are much higher than the instructor's and complainant's lawyers do not want to give a jury the option of pinning it on someone who can't pay as much.

 

[jonhall]

Or the shop's insurance limits are much higher than the instructor's and complainant's lawyers do not want to give a jury the option of pinning it on someone who can't pay as much.

That was my thinking. Indiana's Wrongful Death Act puts a cap of $300,000 on the damages had she been unmarried with no children. Since she was married and had kids, there is no cap on the damages.