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With all this blind-leading-the-blind talk about litigation and who gets
sued, I'd be interested to know how many of you can call the results of this
ACTUAL case. It's stolen from another mailing list which had a very similar
discussion a month back. Let's hear it. The facts in this case are all that
is known, You may agonize over the unknown as much as you wish, but the
outcome of this case is KNOWN and follows very strictly the prima facie
liability formula, which is uniform for the entire US except, I believe,
Louisiana. Questions are simple: Who got sued, and what was the verdict for
each of the defendants ? The winner gets to beat his chest.
FACTS:
In June 1988, Tancredi, a 35 year-old resident of Plymouth Meeting,
Pennsylvania, traveled to Hawaii for a vacation and to participate in scuba
diving activity. In 1981, he had obtained the basic open-water
certification supplied to divers by the recreational dive industry.
Tancredi also had some experience diving in waters off the Island of Hawaii
prior to his trip in 1988.
On June 29, 1988, Tancredi booked charter space with defendant Dive Makai
Charters ("Dive Makai") for the following day, when another dive company
was unable to accommodate him and recommended Dive Makai. Tancredi engaged
Dive Makai to plan and guide a safe recreational dive in an area of the
ocean approximately one mile off the coast of Kailua-Kona, Hawaii.
On June 30, 1988, Tancredi presented himself at Kailua Pier for boarding
Dive Makai's vessel. He was advised that a dive scheduled for that day was
to the "Deep Reef". The plan was a dive to a maximum depth of 145 feet for
a maximum time of 20 minutes, with decompression stops at 20 feet for three
minutes and at 10 feet for eight minutes.
The dive planned for June 30 was a dive suitable only for very experienced
divers because of its depth and the fact that it required several
decompression stops. Dive Makai was well aware of the substantial risks
and dangers associated with such a deep dive, and it was Dive Makai's usual
practice to
make sure its customers were ready for the dive by having them participate
in less dangerous dives before allowing them to go to the "Deep Reef"
location.
Tancredi, however, was not an experienced or advanced diver capable and
qualified to participate in a dive as deep as the "Deep Reef" dive planned
for June 30. Tancredi also had never gone diving with Dive Makai before.
He was the only diver to ever dive with Dive Makai to the "Deep Reef"
location who had not been taken on a previous dive by the company.
Furthermore, neither Dive Makai's owners nor the dive master, defendant
Rich Westphal ("Westphal"), discussed with Tancredi in any detail his
diving experience or reviewed his dive log. Dive Makai failed to determine
that Tancredi was not adequately prepared for the dive to the "Deep Reef"
location before taking him on the dive. However, Tancredi also knew or
should have known, based on the basic certification training he had
received, that he was not ready for a decompression dive as deep as 145
feet because of his inexperience.
Tancredi was not assigned a "buddy" for the dive by Westphal. The five
other customers on the tour, however, were either related or knew each
other and had established informal "buddy" arrangements for the dive.
The dive began with the group descending along the anchor line to
approximately 137 feet where the anchor was set. During the course of the
tour on the bottom, the divers descended further to a maximum depth of 145
feet in order to view black coral and associated fish. The divers stayed
close
to each other during the tour, although Tancredi made two short excursions
away from the others to take pictures.
Approximately 19 minutes into the dive, the group returned to the anchor
and began their ascent up the anchor line. Tancredi was fourth up the line
followed by Dr. and Mrs. Mel Levy. As the divers began their ascent,
Westphal returned to the anchor to inflate a lift bag with his own air so
that the bag could later be used to pull up the anchor. Westphal used
almost all of his remaining air to inflate the lift bag.
At approximately 120 feet, Tancredi dropped down to the level of the Levys
and indicated to Dr. Levy by pointing to his regulator that he was having
difficulty in breathing. Dr. Levy thought that Tancredi had sufficient air
to make it to the surface and signaled him to ascend. Because Dr. Levy was
not Tancredi's "buddy", he did not stay with Tancredi to assist him in
breathing or to calm him down. Instead, Dr. Levy descended to obtain
assistance from Westphal.
As Westphal approached Tancredi, Tancredi was holding the anchor line and
breathing, although his eyes were dilated. Westphal could not help
Tancredi because he ran out of air as a result of inflating the lift bag.
Westphal motioned to Tancredi to ascend but Tancredi did not move. Since
Westphal was out of air, he swam to Mrs. Levy to share air from her tank.
Mrs. Levy at that time was above Tancredi. While Westphal was breathing
Mrs. Levy's air, he saw
Tancredi release his grip from the anchor line and saw blood emitting from
Tancredi's nose and mouth. Tancredi became negatively buoyant and sank.
Westphal made a rapid ascent to the surface to obtain help, suffering
decompression sickness as a result. The vessel captain, defendant Gary
Simons ("Simons"), immediately entered the water in an effort to rescue
Tancredi. Simons found Tancredi on the bottom at about 130 feet and brought
him to the surface. CPR was unsuccessful and Tancredi died.
Tancredi ran low on air and had difficulty in breathing, probably caused by
an inadequate air supply, the stress and exertion of the dive, nitrogen
narcosis, and his lack of experience in deep diving. Tancredi's breathing
difficulty caused him to draw more air rapidly from his regulator, which in
turn led to greater breathing difficulty. Tancredi ultimately became
hypoxic and unconscious. He aspirated sea water and died as a result of
drowning. Tancredi probably would not have died had he been taken to the
surface when he indicated his distress to Dr. Levy and Westphal.
Bjorn
http://www.geocities.com/Colosseum/Bleachers/4161/index.html
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