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November 2010    Download the Entire Issue (PDF) Available to the Public Vol. 36, No. 11   RSS Feed for Undercurrent Issues
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That California Real Life Open Water Case

what was behind the $1.68 million verdict

from the November, 2010 issue of Undercurrent   Subscribe Now

The 2003 hit movie Open Water, in which two divers are abandoned to die when their dive boat forgot to pick them up, was based on a real life occurrence. It’s certainly not the only case where dive vessels failed to do a proper accounting and logging of divers, and divers were left behind. While Australia has had several civil trials go forward on such misconduct with verdicts returned on behalf of the victims and even government fines and sanctions mandated, the first such trial in the U.S. just concluded on October 23rd in California. And the jury let their distemper with such negligence be amply evident in the verdict.

The case took on a life of its own and has been widely reported in newspapers and on the Internet. The basic facts involve a diver, Daniel Carlock, who went diving on April 25, 2004 with the vessel Sun Diver that had been chartered for the day by Ocean Adventures, a PADI diving retailer located in Venice, California. The weather was overcast and rainy, with reduced surface visibility. Carlock exited the dive vessel with a group of 19 other divers for a first dive to a nearby oil platform. Some dispute arose later as to who his buddy was supposed to be, but when he surfaced, he was down current from the drifting vessel and unable to swim back. He had surfaced about 400 feet from the dive boat after only 15 minutes when he had trouble equalizing his ears. He floated in his inflated BC, blew his whistle loudly, and waved a safety sausage, but the boat crew never saw him. As he recounted later, he was astonished to see the boat motor away without him.

Somehow he was errantly logged back aboard during a roll call by the divemasters in spite of still being in the water. He was left behind and not missed until the conclusion of the second dive. Even then, he was listed as having participated on the second dive, and a search was begun at that site . . . rather than where he was actually left. This further complicated efforts to find him.

“I figured when the dive was over, they would realize I was missing and come looking for me,” Carlock said at the time. But they never missed him, and he was left alone and drifting seven miles offshore. He was never located by the Sun Diver, but four hours later was found by the Argus, a sailing vessel on a trip with Sea Scouts that luckily passed nearby and spotted him on the surface. He was brought aboard after being seen by a 15-year old Sea Scout who alerted the Argus’ captain, Fred Bockmiller. He described Carlock as “hypothermic and in bad shape.”

Capt. Bockmiller had shifted Argus’ course that morning to avoid heavy shipping traffic. “The change is what saved Carlock’s life,” he said. As they headed to Newport Beach, Sea Scout Zach Mayberry spotted what he thought was a body bobbing in the sea swell.

“He had maybe another half hour to live,” Bockmiller related. He doesn’t mince words: “We were on our way back from Catalina on a foggy weekend, and by sheer luck, found the diver. He had been abandoned criminally, stupidly, and ridiculously by the dive company.”

“I thought he was dead,” remembers Bockmiller. ”But then he moved.”

Carlock, then 45 years old, was brought aboard and given fluids, hot coffee, food, and warm clothes in an attempt to raise his body temperature after his ordeal. Later he was picked up by the Coast Guard and transported back to the Sun Diver.

Carlock filed a lawsuit against Ocean Adventures, the two divemasters (Andy Huber and Zacarias Araneta, who worked for that company), as well as the owners of Sun Diver, its captain, Ray Arntz, and the vessel crewmembers. His complaint alleged that the defendants failed to maintain a proper lookout, proper logging of divers in and out of the water, used improper search procedures, and their negligence resulted in “the infliction of emotional distress, fraud, injuries resulting in skin cancer, and post traumatic stress disorder” in the aftermath or his ordeal. His attorney, Scott Koepke, said, “My client . . . had cancerous lesions removed but continues to suffer from physical and emotional trauma.”

The Coast Guard sanctioned Sun Diver’s Capt. Arntz and suspended his license, as well as requiring him to attend a remedial program on safety protocols for diving vessels.

Originally filed in January 2005, the suit inched its way to a final result that took nearly six years. Along the way, after more than three years of legal wrangling, California Superior Court Judge Edward A. Ferns denied a motion by the defense in March 2008 to dismiss the case based on a waiver that Carlock had signed. The defense attorneys had argued that Carlock “had assumed the risk of being left in the ocean and that there were, therefore, no triable issues.”

The judge disagreed, noting, “While there is a risk inherent . . . that a diver will become separated from other divers, it has not been shown that . . . divers will forget and abandon their co-participants in the ocean.” His ruling allowed the lawsuit to go forward.

Carlock’s attorney Koepke commented, “The risk of scuba diving does not include being left unaccounted for . . . and left floating on your own.”

Incredibly, the legal maneuvering became even more bizarre. Apparently, disharmony and friction among the defense attorneys led to further disagreement on a common strategy, and outside legal observers were critical of their handling of the case for failing to use some applicable regulations to remove some defendant parties from the case early on. A trial began on March 9, 2010, but was canceled by Judge Soussann G. Bruguera after three weeks when informed by the lawyers that there were still 13 witnesses to be called.

“It’s too taxing for the jurors and too taxing for the court’s calendar,” the judge noted. Bruguera said another court with a less packed calendar could handle the case. She also directed the lawyers to speak with the departing jury about how to present a more concise case the next time. With arguments taking far longer than Bruguera thought necessary, she acidly commented that, “the three-week trial had evolved into Alice in Wonderland.”

This mistrial declaration by the judge prompted another round of incredulous comment from other members of the legal profession. One lawyer in the Los Angeles area (who asked to remain anonymous) observed, “This case is a lesson in how not to defend a personal injury claim. When a judge tosses you out in frustration, it’s time to realize you better get your act together and present some attempt at a more unified defense. Faced with the indisputable facts, it’s astounding that no reasonable settlement offer was ever made. I spoke to plaintiff’s attorney Scott Koepke, and he said he made every effort to get an early resolution years ago and was totally rebuffed. I doubt if the defense is going to escape unscathed, and the costs are just escalating out of control.”

That was a rather clairvoyant prediction. The trial resumed in mid-September this year, and another marathon of legal process resumed all over.

“This is a case more about trying to shift responsibility to others and not taking responsibility for yourself in an adventure sport,” said defense attorney Steve Hewitt, who represented Ocean Adventures and one of the divemasters.

Matt Monroe, defense attorney for Sun Diver and Capt. Arntz, said the captain did what was required of him and performed “a textbook search” when he realized Carlock was missing.

Well, the jury didn’t share the views of the defense and returned a verdict for Carlock of $1.68 million. It was originally $2 million, but was reduced slightly as the jury assigned a 16% contribution to Carlock himself as he had been told to surface closer to the boat. Nonetheless, it was an extraordinary award that seemed to send a deliberate message to the diving industry to get its act together.

Following the jury’s verdict, widespread comment spread across the Internet and various forums. It was divided on whether justice was served. Here are some sample posts:

“Good thing for him that I’m not on the jury . . . How about swimming to shore? It’s only seven stinking miles. Even if he couldn’t make it, the closer to shore, the higher the boat traffic would be.”

“The Sun Diver is a shit boat with a shit captain. Ocean Adventures is a good outfit . . . the plaintiff didn’t follow directions; however, that does not excuse a dive boat for leaving the scene . . . very, very bad.”

“It seems the award is high for the described injuries, but then the negligence is, to me, gross negligence. They failed to note his absence on TWO head counts, and that may have inspired the jury to award more damages as a form of unspoken punishment.”

“The captain is the captain and the buck ends there. It’s the captain’s fault and that’s all there is to that.”

“The bottom line is the captain f***ked up . . . so it looks like he will pay for it.”

“An obvious case of negligence that certainly warrants a measure of compensation… but $1.68 million? We can only speculate that he had a very good lawyer . . . and that the defendants were unlikable.”

Capt. Arntz probably didn’t help his case with this testimony that his “job was to steer the Sun Diver, not oversee who left and returned during the voyage. My job was to navigate the vessel . . . keeping track of all the divers . . . was the job of the divemasters . . .”

Evidence showed that the divemasters were listed on the boat’s manifest as passengers, not crew. According to Coast Guard regulations, neither divemaster qualified to be a crewmember, and no delegation of duties can be given to passengers under the rules for U.S. inspected passenger vessels. As such, responsibility and liability would fall solely to the captain and crew. (Speculation as to why an expert witness was not presented at trial by the defense to explain this to the jury has confounded other legal observers.)

The divemasters were listed on the
boat’s manifest as passengers, not
crew. Neither divemaster qualified to
be crewmembers, and no delegation
of duties can be given to passengers
under the Coast Guard rules for U.S.
inspected passenger vessels

Another irate diver posted this comment: “I also think some criminal charges should be brought. A man doesn’t leave another man on the ocean to die . . . that operation should be shut down.”

After the second 23-day trial and two-and-a-half days of jury deliberation that resulted in the large monetary award, defense attorney Steve Hewitt said, “Everyone involved had some obligation to look for and account for Carlock. We question the effort (he) made to swim back to the boat. He chose to let the current take him away.”

Hewitt disagreed with the jury’s decision to include future pain and suffering as part of the $1.68 million award. “He is married. He has a life and seems to be okay.”

That probably wouldn’t have gone over very well as a convincing argument either. And it most likely didn’t elevate the public’s opinion of lawyers in general. We wonder how Hewitt might have felt if he was in the same situation, floating around in the cold ocean for half a day while praying not to die. (Carlock testified that he prayed and kept a log of his thoughts on his dive slate for his family.)

Carlock’s lawyer summed things up, “Dan has changed the industry’s safety standards so that divers won’t be left out in the ocean and endure this kind of terror.” Koepke said industry standards had previously lacked specifics on how to count divers. “Now they have to have visual verification and redundancy. And the dive boat captains, not just the divemasters, are responsible for the count.”

Six-and-a-half years after his drift into oblivion, Dan Carlock is relieved to be alive and satisfied with the jury’s verdict. “It has been an ordeal,” he told a reporter for the Los Angeles Times. “But I wanted to seek changes in the scuba industry. Others will benefit.”

Carlock’s case attracted international attention. He appeared on NBC’s “Today” show and on “The Oprah Winfrey Show.”

There are lessons to be learned here from all sides. Take all due diligence and know your vessel crew and their procedures before you jump in for your next dive.

– Ben Davison

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