Yukon tangent thread

[Ayisha]

While I respect your belief, I don't think a court in California would have the same belief.

For example, in the case of Zepeda v. City of Los Angeles (1990) 223 Cal.App.3d 232, the court held that paramedics were not liable when they watched a gunshot victim bleed to death without giving him first aid. The court held that the paramedics had no duty to come to his aid and therefore could not be liable.

And, in the case of Williams v. State of California (1983) 34 Cal.3d 18, the California Supreme Court remarked that someone on the beach had no duty to so much as lift a finger to help a drowning man in the water.

As such, if the dive boat were run like they are in some places, where the DM is a shepherd, there might be a duty, but I just don't see one where the culture is that the DM is just an onboard wrangler.

Bruce, in the two cases you mention above, especially the first case, there was excessive risk to the rescuers. Even in the second case, if the person had little or no lifeguard training and had no lifeguard/lifesaving equipment to help the drowning victim from a distance without putting him/herself at risk, this could also be undue risk to the rescuer.

Are there any completed cases on a dive boat where there is a trained, working DM onboard and who has the appropriate gear to perform a rescue and has access to lifesaving equipment? In other words, where there is not unexpected or undue risk to the rescuer?

 

[Jax]

There are many folks here with orders of magnitude more dives than me, so this is not your best data point.

Every boat in SC and the Keys that I have been on has called roll, by name, both before we left the inlet (not always before we left the dock) and after every dive.

Divers were NOT checked in and out of the water - roll was called when it was thought all were on board. Generally, one of the crew is doing a head count to figure out how many are still off the boat until it is thought all are onboard- then the roll is called.

:huh: I don't know what you mean by that bolded part?

It was a curiousity question - In the Keys, I remember some roll calls, but simply may not remember the others. The American ops in San Carlos, Mex, do roll calls; the Mex ops do not. I just wondered what the SC area did.

 

[Trampmastafunk]

what they have to prove is negligence based on the preponderance of the evidence.

That's what I said, just left out "the preponderance of the evidence" because it is inconsequential at this point. In fact, it makes it easier. Its called the "balance of probabilities. All you have to do is prove they are more than 50% responsible and you win your case.

If the issue is the dive boat having left the site with a diver in the water, the prosecution or plaintiff would have to prove that the diver was alive when the boat left.

If the issue is not preventing the diver's death, someone would first have to prove there was a duty of care, which I don't think could be done.

It wouldn't be that hard to do. Want to go after the divemaster? check the sites for NAUI and PADI. There are so many quotes under sections about a divemaster's responsibility that its a playground for a prosecutor. If you want to do the research to set up a good argument, you can argue just about anything.

 

[Jax]

:huh: I don't know what you mean by that bolded part?

It was a curiousity question - In the Keys, I remember some roll calls, but simply may not remember the others. The American ops in San Carlos, Mex, do roll calls; the Mex ops do not. I just wondered what the SC area did.

Clarification - the Mex ops expect the group lead to account for their divers.

 

[D_B]

:huh: I don't know what you mean by that bolded part?

It was a curiousity question - In the Keys, I remember some roll calls, but simply may not remember the others. The American ops in San Carlos, Mex, do roll calls; the Mex ops do not. I just wondered what the SC area did.

I'm thinking that , with his mentioning that others have way more dives , that he has a less than high number to go on

 

[diverrex]

I think some people need to take a step back to understand what others are trying to say. I'm not sure when these threads became about pinpointing an exact cause of death rather than learning from all mistakes made or identifying inadequate existing protocols. Determining whether the departure of the boat with a diver in the water contributed to the cause of death or assigning blame is not as important for our purpose as it is to the investigators.

What is important is that it has come to light *again* that a boat may have left a dive site with a diver still in the water and we need to examine why and how this can be reliably prevented in the future. Previous threads with this theme and elsewhere have determined the necessity for visually verified roll calls rather than headcounts as well as sign in/sign out systems or DAN tags. There is nothing wrong with discussing how to improve current protocols whether it contributed to the unfortunate accident or not.

If the victim had survived, could he have sued the dive op for leaving him at the first dive site as I believe others have? With the victim deceased, why would the family not be able to sue for the same reason? If the dive shop left the dive site without all passengers accounted for and no communications to the coastguard regarding a missing diver, a mistake was made by the dive op, regardless of whether it contributed to the death of the victim. If a mistake is publicly known and we could be affected by a similar mistake in the future, we have the right to talk about it. My 1 cent...

Ayisha, I understand what you are saying, but I think the primary reason for these threads is learning lessons whether they stem from the diver's death or the additional considerations. Unfortunately, our culture loves to 'blame'.

I am seeing a lot of people believing that by-name roll call absolutely should be a required safety procedure, but it is not 100%.

I also see that we have a solo diver on what should have been an easy dive (good conditions) that died, and no one knows why. I read that some have "heard" the tank was empty, but no authoritative source.

I would love to learn lessons from the diver's death, but in my own mind and calculations, the unfortunate departure of the boat without roll call is not a contributing factor.

I agree completely that a missed roll call probably has nothing to do with this divers death. But since this particular forum has a tendency for all kinds of speculation in the name of 'lessons learned" I also agree completely with Ayisha that discussing why missed rolls keep happening is appropriate as a "lesson learned".

 

[narced_1]

So i have read 100% of every post on this subject...There seem to be that there is a key piece that everyone is missing. This particular trip was a Private Charter.

This means that the Group, in this case, Sport Chalet also must come into the mix when there is liability laid out. Keeping in mine that The Humbolt sold their "ferry service" for this trip to another outfit (Sport Chalet)..So basically if for some reason someone is able to pinpoint this mans death to the boat leaving the site, then their will be some shared liability.

I can't say that i think the Humbolt was right by not doing a "Name by Name" roll call...but why didn't Sport Chalet, who was actually running the show, do one either?

IMHO- i think the fact that the boat left had NOTHING to do with this tragedy...so let's quit debating the boat leaving, we ALL agree that there should be roll calls etc...and we pretty much agree that this tragedy happened before the boat left. Let's wait and find out HOW he did and quit flaming everyone.

In reality, there are only a few things that we KNOW as fact and without a few more of those facts, we will have a hard time preventing this exact scenario in the future. Yes, i know what i believe to have happened to this diver...that is one of the reasons that i ask my students "how much air you got" every few minutes on EVERY dive with me...so that they get used to looking at their gauges frequently.



My condolences go out to the Family of this diver and also to the operators of the Humbolt as this must also be weighing heavy on them too.

 

[ItsBruce]

Bruce, in the two cases you mention above, especially the first case, there was excessive risk to the rescuers. Even in the second case, if the person had little or no lifeguard training and had no lifeguard/lifesaving equipment to help the drowning victim from a distance without putting him/herself at risk, this could also be undue risk to the rescuer.

Are there any completed cases on a dive boat where there is a trained, working DM onboard and who has the appropriate gear to perform a rescue and has access to lifesaving equipment? In other words, where there is not unexpected or undue risk to the rescuer?

You are right that in the first of the two cases, the reason the paramedics did not give aid was because of the risk. However, that would have been a defense to liability if there had been a duty in the first instance. The court never even reached the issue of risk or defense because the first element, namely duty, was entirely missing.

In the second case, the comment on the drowning man was just in a footnote. The actual case itself involved a claim against police who failed to preserve evidence and get the identities of witnesses at the scene of an auto accident, thereby depriving the plaintiff of the ability to even sue the culpable party. The court's discussion of duty and what creates one was the important thing.

 

[ItsBruce]

...It wouldn't be that hard to do. Want to go after the divemaster? check the sites for NAUI and PADI. There are so many quotes under sections about a divemaster's responsibility that its a playground for a prosecutor. If you want to do the research to set up a good argument, you can argue just about anything.

Just because that is on the web sites, that does not create an individual duty of care.

Beyond that, there is a problem with causation. There would need to be proof, by the appropriate standard, that but for whatever it was the boat did that was wrong, the diver would have been saved, i.e. that he was alive and could have been saved at that time. Among other things that would have entailed proof of the ability to locate him in a reasonable time and with the available resources.

BTW: There is one other thing a plaintiff in a civil case would need to overcome. That is the California doctrine of Primary Assumption of the Risk. It basically says that if one is injured or killed by virtue of a risk that is inherent in the particular sport, there is no liability unless the defendant either acted intentionally in causing the particular harm or increased the risk outside the normal bounds.

To illustrate, the California court held that a hit in a flag football game, that caused the plaintiff injuries was not actionable because that is part of the game even though it is flag football. Likewise, in baseball, even though "beanballs" are against the rules, "beanballs" are part of the game and a batter who is hit by one has no recourse.

The only case I can find where a dive operator was found liable was when the operator took a knowingly unqualified diver on a dive that was way beyond his capabilities and the DM who was acting as the dive leader had made himself unable to render assistance.

Let me put it like this: If the family here came to me to take the case, I would not take it on a contingency unless the diver's computer showed he had surfaced and then sank. I'd take it on an hourly only after providing two pages of written disclaimers about how improbable winning would be.

 

[ItsBruce]

.If the victim had survived, could he have sued the dive op for leaving him at the first dive site as I believe others have? With the victim deceased, why would the family not be able to sue for the same reason? If the dive shop left the dive site without all passengers accounted for and no communications to the coastguard regarding a missing diver, a mistake was made by the dive op, regardless of whether it contributed to the death of the victim. If a mistake is publicly known and we could be affected by a similar mistake in the future, we have the right to talk about it. My 1 cent...

The difference is causation and damage. With a living diver, the diver will likely have sustained a real injury in having been left behind and the boat's leaving would likely be a substantial factor in that. With a diver who surfaced and then sank, the death will be an injury and the boat's leaving a substantial factor. With a dead diver who never surfaced, there is no proof of causation.