ItsBruce
Contributor
Please keep in mind that I think it is an outrage that a diver would be left behind. I would be hard pressed to dive on a boat skippered by that captain and presided over by that DM. However, that does not mean I think there is liability.
Quite frankly, I think there is a very strong connection. However, based on a few educated guesses, i.e. air usage and size of tank, I suspect that the connection is that the boat left because the absent diver was dead on the bottom of the ocean.
As far as how things should go and how they do go, the legal system contains a lot of safeguards.
For example, before a trial, a defendant has the chance to file something called a "Motion for Summary Judgment." In it, the defendant presents what he or she contends are the undisputed material facts of the case. To call something an undisputed material fact, the defendant must identify admissible evidence, which, if believed, would support. Then, based on these, the defendant identifies the legal precedent, which, when applied to the undisputed material facts, would support a judgment in his or her favor. The plaintiff must then show either (1) that the facts presented by the defendant are not undisputed, (2) that even given the facts presented by the defendant, the legal precedent does not support a judgment in the defendants favor, or (3) that there are additional facts, which, under the precedent, would require a different result. In either disputing the defendants facts or presenting additional facts, the plaintiff must present admissible evidence, which if believed, would support the fact.
In terms of a defendant showing undisputed material facts that would support a judgment in his or her favor, in California, those facts could be as simple as that the plaintiff lacks evidence necessary to establish liability.
In the context of liability for leaving the deceased behind, this last bit about the defendant showing the plaintiff lacked evidence would be devastating to the plaintiffs case. I cannot imagine how the plaintiff could proffer evidence that the deceased was alive at the point in time that the boat left. Perhaps the deceaseds dive computer will show movement and air in the tank at a given time, but I somehow doubt it.
The reason the summary judgment procedure is so powerful is that a judge and not a jury makes the decision and the judge is less likely to be swayed by passion or the outrage of a boat having left a diver behind.
In terms of the potency of the summary judgment procedure, here was a case in which a motorcycle rider was killed when the kickstand on his motorcycle caught the ground while he was going around a curve. His heirs sued the manufacturer. The manufacturer filed a motion for summary judgment in which it asserted that the kickstand wasnt actually one of its kickstands, but rather was a defective knock-off. The manufacturer offered evidence from experts in which they examined things like the metallurgical composition of the kickstand and various facets of the way it was cast and machined. When compared to an authentic one, the experts said it was a knock-off. The plaintiff then had its experts run similar tests. The plaintiffs experts opined that the variances between the kickstand on the bike and their samples was inconsequential and did not support the conclusion that the kickstand was a knock-off. The manufacturer responded that the plaintiffs experts tests were not admissible as there was no evidence the kickstands they used for their tests were genuine, i.e. they were comparing knock-offs to other knock-offs. The plaintiff then responded that the kickstands their experts used for their tests were purchased at a motorcycle shop and had the manufacturers name on them. The court ruled (1) the presence of the manufacturers name on the samples meant nothing as knockoffs would have it, too; (2) the plaintiffs failed to prove their experts compared the kickstand on the motorcycle to the manufacturers product; (3) this failure meant that their experts opinions that the variances were inconsequential, were not admissible; (4) that there was no dispute over whether the kickstand was a knock-off; and (5) the manufacturer was not liable. Game over.
If this could happen in the motorcycle case, what could a plaintiff offer to show the diver was alive when the boat left?
Beyond all of this, on the issue of duty, which goes to whether the boat should have let the deceased dive alone, the existence of a duty is for the judge to make, not for the jury. So, again, the passion of the case is greatly reduced. And, given how much solo diving there is and that divers should know of the pros and cons of diving solo, if the deceased was an experienced diver, I could well imagine a judge finding there was no duty to have prevented the dive.
In short, I would expect the case to be disposed of without a jury ever getting close to it.
