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I never said the law is the same, but the prima facie negligence formula
certainly is.
Additional info, and this is really all I have:
The state in which the suit was filed, Hawaii, uses (or used at the time)
contributory negligence, but this did NOT cause the suit to be thrown out.
(It is my understanding that most states use contributory negligence to
adjust the damage amount, not to throw the suit out ?).
This case, incidentally, was NOT a jury case.
I'm interested in what anyone thinks happened to:
Dive Makai
Divemaster
The doctor
The captain
Bjorn
http://www.geocities.com/Colosseum/Bleachers/4161/index.html
> -----Original Message-----
> From: Mark Grant [mailto:markg@pa*.ne*]
> Sent: Thursday, July 16, 1998 13:06
> To: Technical Diving Mailing List
> Subject: RE: Litigation
>
>
> the facts may be enough, but unless you know some legal data
> such as where
> the case was filed and the negligence law in that location, you cannot
> determine the outcome for most of the defendents.
>
> by the way, the laws are not the same everywhere except
> louisiana. They
> vary tremendously from state to state. and one reason why
> you have to be
> licensed in each state you intend to practice.
>
> there are several legal issues you must define that depend on
> the district;
>
> one missing piece of data that is NECESSARY to analyze this
> properly is
> whether the jurisdiction uses comparitive or contributory
> negligence. This
> makes a big difference and could even excuse most defendents
> in this case.
> Most states have some form of comparative negligence now, but NOT ALL.
> contributory negligence is usually a complete bar to recovery
> for negligence
> (but not reckless or willfull misconduct). and remember that
> the difference
> between reckless and negligence is probably up to the jury,
> impossible for
> anyone to analyze since it is a judgement call.
>
> if comparative negligence is it "pure" comparative or
> "partial". this also
> makes a big difference, in that the plaintif may only recover
> in a partial
> jurisdiction if his own negligence is less than the
> defendant. and some
> states require the plaintiffs negligence to be less than the
> negligence of
> ANY of the defendents. another big issue here.
>
> next, is assumption of the risk available in this district? some
> jurisdictions have abolished this defense (go figure)
>
> you also need to know where the suit was filed to see if they
> could even get
> everyone into court. ( i would sue where the accident
> happened not knowing
> anything more, but you didnt tell us this) this will also affect the
> outcome; if they sue elsewhere the court may not have
> jurisdiction over the
> defendents.
>
> and another point before anyone thinks that the "answer" is
> all inclusive.
> remember that most of the published opinions are cases that
> have been very
> finely tailored by the judge and attorneys to only try the
> issues that are
> in question. it may NOT report everything that happened, nor
> all the monies
> paid by the parties.
>
> and, finally, hard to believe i know, but the attorneys may
> have forgotton
> something. pamela lee's attorney did when he filed a zillion theories
> against those duplicating her and tomy lees honeymoon video,
> but he forgot
> copyright infringement, so they couldnt stop it from being
> duplicated (thank
> god!)
>
> let us know.
>
> Mark G.
>
> ps. this is not legal advice (but you all knew that)
> and if you want legal advice, where do i send the bill?
>
> > -----Original Message-----
> > From: Bjorn Vang Jensen [mailto:bjensen@lo*.co*.th*]
> > Sent: Wednesday, July 15, 1998 9:20 AM
> > To: 'Technical Diving Mailing List'
> > Subject: Litigation
> >
> >
> > 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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